Judgment of the General Court (Tenth Chamber) of 14 April 2021 –

Achema and Lifosa v Commission

(Case T‑300/19)

(State aid – Market in electricity generated from renewable energy sources – Operating aid – Decision declaring the aid scheme compatible with the internal market at the end of the preliminary examination stage – Article 107(3)(c) TFEU – Infringement of procedural rights – 2008 Guidelines on State aid for environmental protection – 2014 Guidelines on State aid for environmental protection and energy 2014-2020 – Article 30 TFEU – Article 110 TFEU – Body of consistent evidence)

1. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the internal market without opening the formal investigation procedure – Action by interested parties within the meaning of Article 108(2) TFEU – Admissibility – Conditions (Arts 108(2) and (3) and 263, fourth para., TFEU; Council Regulation 2015/1589, Art. 1(h)) (see paras 37-39)

2. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the internal market without opening the formal investigation procedure – Action by interested parties within the meaning of Article 108(2) TFEU – Identification of the subject matter of the action – Action designed to safeguard the procedural rights of the persons concerned – Pleas that may be put forward (Arts 108(3) and 267, fourth para., TFEU; Council Regulation 2015/1589, Art. 1(h)) (see paras 42, 203-205)

3. State aid – Examination by the Commission – Preliminary review and main review – Compatibility of aid with the internal market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Serious difficulties – Concept – Objective nature (Art. 108 TFEU; Council Regulation 2015/1589, Art. 4) (see paras 43, 45)

4. State aid – Examination by the Commission – Preliminary review and main review – Commission’s duty to initiate the main review procedure in the event of serious difficulties – Concept of serious difficulties – Objective nature – Judicial review – Scope (Art. 108 TFEU; Council Regulation 2015/1589, Art. 4) (see para. 44)

5. State aid – Examination by the Commission – Preliminary review and main review – Compatibility of aid with the internal market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Serious difficulties – Concept – Objective nature – Burden of proof – Circumstances enabling the existence of such difficulties to be established – Body of consistent evidence concerning the length of the preliminary examination procedure, the circumstances surrounding the adoption of the contested decision, and the content of that decision (Art. 108 TFEU; Council Regulation 2015/1589, Art. 4) (see paras 46, 47, 54-86, 92-112, 115-135, 138-148, 151-178, 209-239)

6. State aid – Examination by the Commission – Preliminary review and main review – Compatibility of aid with the internal market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Circumstances enabling such difficulties to be established – Mere passage of time exceeding the normal duration of a preliminary investigation not sufficient (Art. 108 TFEU; Council Regulation 2015/1589, Art. 4) (see paras 86, 87)

7. State aid – Examination by the Commission – Preliminary review and main review – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Serious difficulties – Request for additional information not in itself revealing the existence of serious difficulties (Art. 108 TFEU; Council Regulation 2015/1589, Art. 4) (see para. 109)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2018) 9209 final of 8 January 2019 on State aid SA.45765 (2018/NN), concerning an aid scheme implemented by the Republic of Lithuania in support of producers of electricity from renewable energy sources (OJ 2019 C 61, p. 1).

Operative part

The Court:

1. Annuls Commission Decision C(2018) 9209 final of 8 January 2019 on State aid SA.45765 (2018/NN), concerning an aid scheme implemented by the Republic of Lithuania in support of producers of electricity from renewable energy sources;

2. Orders the European Commission to bear its own costs and to pay those incurred by Achema AB and Lifosa AB;