Judgment of the General Court (Seventh Chamber) of 12 September 2019 –

Achemos Grupė and Achema v Commission

(Case T‑417/16)

(State aid — Aid to Klaipėdos Nafta for the construction and management of an LNG terminal at the Klaipėda Seaport — Decision declaring the aid compatible with the internal market — Article 106(2) TFEU — Article 107(3)(c) TFEU — Decision not to raise any objections — Security of supply — Service of general economic interest)

1. Judicial proceedings — Production of evidence — Time limit — Evidence lodged out of time — Conditions (Rules of Procedure of the General Court, Art. 85(3)) (see paras 36-39)

2. 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 — Circumstances enabling the existence of such difficulties to be determined — Judicial review — Burden of proof (Arts 107 and 108 TFEU) (see paras 47-51)

3. State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — Taking into account of the most complete and reliable information possible — Scope of the obligation (Art. 108(2) TFEU) (see paras 52-57)

4. State aid — Examination by the Commission — No observations by the persons concerned — Not relevant to the validity of the Commission decision — Obligation to examine matters not expressly invoked by the Commission’s own motion — None (Art. 108(2) TFEU) (see paras 58-60)

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 — Circumstances enabling the existence of such difficulties to be determined — Mere lodging of a complaint or observations from third parties — Not included (Arts 107(1) and 108(2) and (3) TFEU) (see para. 64)

6. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Assessment in the light of Article 107(3)(c) TFEU — Criteria — Pursuit of a public interest objective — Whether the aid is appropriate, necessary and not disproportionate (Art. 107(3)(c) TFEU) (see paras 67-83, 95-107)

7. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Assessment in the light of Article 107(3)(c) TFEU — Criteria — Pursuit of a public interest objective — Whether the aid is appropriate, necessary and not disproportionate — Examination of the existence of an incentive effect of the aid — Legal obligation to implement the project covered by the aid measure — Irrelevant (Art. 107(3)(c) TFEU) (see paras 84-94)

8. Competition — Undertakings entrusted with the operation of services of general economic interest — Compensation for the costs generated by the public service mission — Member States’ discretion — Limits — Entrustment to guarantee a public service task — Duration of the entrustment act seeking to avoid any overcompensation. (Art. 106(2) TFEU; Commission Communication 2012/C 8/03, paras 16(e) and 17) (see paras 110-114, 122-126)

9. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Construction of a liquefied natural gas terminal — State aid seeking to cover the fixed operating costs of that terminal — Direct award of the building of that terminal to a company in which the State holds at least two thirds of the voting rights to guarantee a public service task — Exclusion of the aid measure from the scope of Directive 2004/18 (European Parliament and Council Directive 2004/18, Art. 14) (see paras 134-142)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2013) 7884 final of 20 November 2013, whereby State aid SA.36740 (2013/NN) granted by Lithuania to Klaipėdos Nafta was declared compatible with the internal market (OJ 2016, C 161, p. 1).

Operative part

The Court:

1. Dismisses the action;

2. Orders Achemos Grupė UAB and Achema AB to bear their own costs and to pay those incurred by the European Commission;