Judgment of the General Court (Seventh Chamber) of 20 September 2019 –

FVE Holýšov I and Others v Commission

(Case T‑217/17)

(State aid — Market for electricity generated from renewable sources — Measures setting a minimum purchase price for electricity generated from renewable energy sources or granting a bonus to producers of that electricity — Amendment of the initial measures — Decision declaring the aid scheme compatible with the internal market at the end of the preliminary examination stage — Article 107(3)(c) TFEU — Beneficiaries of the aid and shareholders of the beneficiaries — Legitimate expectations — State resources — Commission’s competence to examine the compatibility of the measures with other provisions of EU law than State aid)

1. Action for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Letter from the Commission containing a simple legal opinion given following a complaint about planned aid which was neither notified nor put into effect –Precluded (Art. 263 TFEU; Council Regulation No 659/1999, Art. 4) (see paras 47-50, 57)

2. EU law — Principles — Protection of legitimate expectations — Conditions (see paras 66-68)

3. State aid — Meaning — Aid from State resources — Public policy of supporting producers of electricity from renewable sources — Funds generated by a levy imposed on end customers — Levy assimilated to a parafiscal charge — Collection and redistribution managed by bodies appointed and mandated by the State — Included (Art. 107(1) TFEU) (see paras 97-108, 111, 117, 126)

4. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for protection of the environment — Guidelines on State aid for protection of the environment — Operating aid for the production of renewable energy — Control mechanism to prevent a risk of overcompensation resulting from cumulation of aid or payment of an amount exceeding the difference between the production cost and the market price — Whether permissible (Art. 107(1) TFEU; Commission notice 2008/C 82/01, points 107 and 109) (see paras 133-135)

5. State aid — Administrative procedure — Obligations of the Commission — Not possible for aid beneficiary to rely on rights as extensive as defence rights as such (Art. 108(2) and (3) TFEU; Charter of Fundamental Rights of the European Union, Arts 41 and 48) (see paras 140, 141)

6. State aid — Examination by the Commission — Compatibility of aid with the internal market — Discretion — Compliance with the coherence between the provisions governing State aid and other provisions of the Treaty (Art. 5 TEU; Arts 107(1) and 108 TFEU) (see paras 152-157)

7. Action for annulment — Pleas in law — Misuse of powers — Meaning (Art. 263 TFEU) (see para. 160)

Re:

Application pursuant to Article 263 TFEU for the partial annulment of Commission Decision C(2016) 7827 final of 28 November 2016 on State aid SA.40171 (2015/NN), concerning the promotion of electricity production from renewable energy sources, a summary of which has been published in the Official Journal of the European Union (OJ 2017 C 69, p. 2).

Operative part

The Court:

1. Dismisses the action;

2. Orders FVE Holýšov I s. r. o. and the other applicants whose names are included in the annex to bear their own costs and to pay those incurred by the European Commission;