62020TJ0678_RES
Case T‑678/20
Solar Electric Holding and Others
v
European Commission
Judgment of the General Court (Eighth Chamber), 10 November 2021
(State aid – Market for electricity produced from renewable energy sources, including photovoltaic energy – Obligation under French law to purchase electricity at a price higher than the market price – Rejection of a complaint – Article 12(1) and Article 24(2) of Regulation (EU) 2015/1589 – Scope)
State aid – Examination of complaints – Obligations of the Commission – Complaint lodged by beneficiaries of non-notified aid measures with a view to obtaining a decision not to raise objections – Obligation of the Commission to examine the complaint – None
(Council Regulation 2015/1589, Arts 1(h), 12(1) and 24(2))
(see paragraphs 22-39, 43)
State aid – Respective powers of the Commission and the national courts – Role of the national courts – Safeguarding of the rights of individuals when the obligation to give prior notice has been infringed – Obligation of the national courts to draw the appropriate conclusions from that infringement in accordance with national law – Scope
(Arts 107 and 108 TFEU)
(see paragraphs 30, 31)
State aid – Examination by the Commission – Non-notified aid measures – Obligation of the Commission to carry out an assessment of compatibility with the internal market – Condition – Complaint lodged by an interested party based on an infringement of the rules on State aid
(Council Regulation 2015/1589, Arts 1(h), 12(1) and 24(2))
(see paragraphs 49-54)
Résumé
In order to encourage the development of renewable energy in its territory, France, in 2000, introduced a legal obligation on Électricité de France (EDF) and certain other electricity suppliers to enter into, at the request of the producers concerned, contracts for the purchase of electricity produced from renewable energy sources (‘green electricity’). Those contracts were for a period of 20 years and provided for the purchase of green electricity at the price set by the ministerial pricing orders in force on the day of submission of the complete application by the producer for connection to the public network.
In that context, the Solar Electric Group, involved in the development, construction and operation of photovoltaic plants in French Guiana and Martinique, entered into contracts for the purchase of green electricity by EDF at the prices set by the pricing orders of 10 July 2006, 12 January 2010 and 31 August 2010.
Until the end of 2015, the costs borne by electricity distributors as a result of the obligation to purchase green electricity were the subject of a full offset mechanism financed by a contribution to the public electricity service levied on electricity consumers. Since 2016, those costs have been compensated by a special account financed by taxes on the consumption of energy products.
In 2019, the Cour de cassation (Court of Cassation, France) held that the measures based on the pricing orders of 10 July 2006 and 12 January 2010, implementing a purchase obligation mechanism in respect of green electricity at a price higher than the market price, constituted unlawful State aid in that they had not been notified to the European Commission.
Solar Electric, having received confirmation from the Commission that the measure based on the pricing orders at issue had not been notified to it, made a complaint relating to the aid schemes resulting from those pricing orders and requested the Commission to make an express finding as to their compatibility with the internal market.
That complaint was submitted pursuant to Article 24(2) of the regulation laying down detailed rules for the application of Article 108 TFEU, (
1
) under which any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid.
By letter of 3 September, the Commission rejected the complaint on the ground that the subject matter did not fall within the scope of Article 24(2) of the regulation laying down detailed rules for the application of Article 108 TFEU.
Confirming that finding, the General Court dismisses the action for annulment brought by Solar Electric against that decision.
Findings of the Court
The Court notes, first of all, that the complaint lodged by Solar Electric sought to obtain from the Commission a decision not to raise objections to the compatibility with the internal market of the measures implemented by the French authorities and based on the pricing orders of 10 July 2006, 12 January 2010 and 31 August 2010.
Thus, the action brought by Solar Electric raises the question of whether Article 24(2) of the regulation laying down detailed rules for the application of Article 108 TFEU confers on the beneficiary of new, unlawfully granted aid an individual right to submit a complaint to the Commission in order to obtain from it a decision declaring aid which has not been notified by the Member State concerned to be compatible with the internal market.
Although a literal interpretation of the wording of the provisions of the regulation laying down detailed rules for the application of Article 108 TFEU tends to establish that the beneficiaries of unlawfully granted aid may submit a complaint to the Commission under Article 24(2) of that regulation, such a conclusion must nevertheless be rejected on grounds relating to the structure of State aid control and the scheme of the complaints mechanism.
As regards, first of all, the structure of State aid control, the Court recalls that the notification requirement is one of the fundamental features of the system of State aid control put in place by the FEU Treaty, which establishes a prior control of plans to grant new aid established by Article 108(3) TFEU. In that context, it is apparent from the actual structure of Article 108(3) TFEU that only the Member States are under the obligation to notify. To accept that the recipient of unlawfully granted aid may submit a complaint to the Commission in order for it to establish that the aid is compatible with the internal market would have no effect other than to allow that recipient to take the place of the Member State concerned, which alone is competent to notify an aid measure to the Commission.
Moreover, such an option for the beneficiary of unlawfully granted aid to submit a complaint to the Commission would call into question the fundamental and imperative nature of the obligation to notify aid measures and the prohibition on their implementation under Article 108(3) TFEU, as well as the penalty in principle associated with the failure of the Member State to fulfil, inter alia, that obligation to give prior notification, namely the repayment of that aid.
Furthermore, the recipients of unlawful aid may bring proceedings before their national courts in order to have a penalty imposed on the State providing that aid on account of an express or implied refusal to comply with its obligation to notify. Accordingly, it is not appropriate to recognise that those recipients have the right to initiate, by means of a complaint addressed to the Commission, the examination of the compatibility of the aid with the aim of having it authorised.
As regards, secondly, the scheme of the complaint mechanism established by the regulation laying down detailed rules for the application of Article 108 TFEU, the Court notes that that mechanism was designed to identify aid that is incompatible with the internal market. It follows that the scope of Article 24(2) of that regulation is limited to complaints made against unlawful aid which complainants consider to be incompatible with the internal market. By contrast, the scope of Article 24(2) of that regulation does not cover complaints by which complainants maintain that aid is compatible with the internal market and should, for that reason, be authorised by the Commission.
Consequently, the recipients of unlawful aid cannot rely on Article 24(2) of the regulation laying down detailed rules for the application of Article 108 TFEU in order to lodge a complaint concerning unlawful aid which they directly or indirectly receive, with the aim of having the Commission adopt a decision declaring that aid to be compatible with the internal market.
Lastly, the Court also rejects Solar Electric’s argument that the Commission’s failure to adopt a position on its complaint creates a legal vacuum which Articles 107 to 109 TFEU, as well as the regulation laying down detailed rules for the application of Article 108 TFEU, seek to avoid, recalling that EU law does not impose an obligation upon the Commission to carry out an assessment of the compatibility of aid which has not been notified as soon as it is informed of that aid by a complaint submitted by a recipient such as Solar Electric.
(
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)	Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9) (‘the regulation laying down detailed rules for the application of Article 108 TFEU’).