Order of the President of the General Court of 17 February 2011 – Comunidad Autónoma de Galicia v Commission

(Case T-520/10 R)

Interim measures – State aid – Compensation for additional production costs of certain electricity power plants arising from a public service obligation to produce certain volumes of electricity from indigenous coal implemented by a ‘preferential dispatch mechanism’ in their favour – Decision not to raise objections – Application for suspension of operation – Prima facie case – No urgency – Balance of interests

1. Procedure – Intervention – Applications for interim measures – Conditions for admissibility – Direct and present interest – Appraisal having regard to the specific nature of the proceedings for interim relief (Statute of the Court of Justice, Arts 40, second para., and 53, first para.) (see paras 28, 30-31)

2. Procedure – Intervention – Applications for interim measures – Conditions for admissibility – Interest in the result of the interim proceedings – Appraisal in relation to the consequences on the economic or legal situation of the interveners (Statute of the Court of Justice, Arts 40, second para., and 53, first para.) (see para. 29)

3. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Serious and irreparable damage – Cumulative nature – Order of examination and method of verification – Discretion of the judge dealing with the application for interim relief (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 39-40)

4. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Prima facie case – Prima facie examination of the pleas raised in support of the main action – Action against a Commission decision authorising State aid – Plea, not devoid of foundation, concerning the reality of a sufficient and complete examination by the Commission in the context of the preliminary phase only without initiating the main proceedings (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 43, 56-57)

5. State aid – Prohibition – Exceptions – Discretion of the Commission – Limits – Decision finding aid with consequences contrary to specific provisions of the Treaty compatible with the common market – Conditions – Modalities of the aid indissolubly linked to its subject-matter (Arts 107 TFEU and 108 TFEU) (see para. 54)

6. State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of the aid with the common market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Concept – Serious difficulties – Objective nature (Art. 108(2) and (3) TFEU) (see paras 45-47, 56)

7. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 59-62, 68)

8. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Balancing of all the interests involved – No demonstration of risk that serious and irreparable damage may occur – Potential adverse effect on the competitive functioning of the electricity market – Primacy of the interests of the Member State and the undertakings concerned in relation to the interest of the applicant (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 80-81, 96)

9. Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest – Member States’ discretion – Limits – Review by the Commission and the courts limited to cases of manifest error of assessment (Arts 106(2) TFEU and 107(1) TFEU; Protocol No 26 on services of general economic interest annexed to the EU Treaty and the FEU Treaty) (see paras 90-93)

Re:

APPLICATION for interim measures seeking, in essence, an order that the operation of Commission Decision C(2010) 4499 of 29 September 2010 concerning State aid N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism for indigenous coal power plants be suspended.

Operative part

1. Hidroeléctrica del Cantábrico, SA, and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission.

2. Copies of all the procedural documents shall be served by the Registrar on the parties referred to in paragraph 1 above.

3. The application for interim measures is dismissed.