Judgment of the General Court (Tenth Chamber) of 8 September 2021 –

Achema and Achema Gas Trade v Commission

(Case T‑193/19)

(State aid – Aid to Litgas for the supply of a minimum quantity of LNG to the LNG terminal at the sea port of Klaipėda – Decision not to raise objections – Safeguarding procedural rights – EU framework for State aid in the form of public service compensation – Service of general economic interest – Compensation for a service of general economic interest – Boil-off costs – Balancing costs – Security of supply – Article 14 of Directive 2004/18/EC – 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 – Action designed to safeguard the procedural rights of the persons concerned – Admissibility (Arts 108(2) and 263, fourth para., TFEU; Council Regulation 2015/1589, Art. 1(h)) (see paras 35-38)

2. State aid – Planned 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 – Evidence relating to both the adoption of the contested measure and its content (Art. 108(2) and (3) TFEU) (see paras 41-48, 70, 71, 90, 91, 104, 124, 127, 147, 149, 162, 174, 179, 182, 184, 185, 189, 195, 205, 217, 219-222)

3. 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 only in the event of manifest error (Art. 106(2) TFEU) (see paras 101, 102)

4. Acts of the institutions – Statement of reasons – Obligation – Scope – Account taken of the context and all the legal rules (Art. 296 TFEU) (see paras 120, 121)

5. State aid – Prohibition – Exceptions – Undertakings entrusted with the operation of services of general economic interest – Compensation for the costs generated by the public service mission – Assessment of the compatibility of aid with the internal market – Criteria – Responsible authority having to comply with the applicable Union rules in the area of public procurement (Art. 106(2) TFEU; Commission Notice 2012/C 8/03, Section 19) (see paras 132, 149)

6. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Scope – Contracts requiring special security measures – Precluded (European Parliament and Council Directive 2004/18, Art. 14) (see paras 134, 135, 137-147)

7. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directive 2004/18 – Scope – Exceptions – Restrictive interpretation (European Parliament and Council Directive 2004/18, Art. 14) (see para. 136)

8. Acts of the institutions – Statement of reasons – Obligation – Scope – Correction of an error of reasoning during the proceedings before the Court – Not permissible (Art. 296 TFEU) (see para. 181)

Re:

Application under Article 263 TFEU seeking annulment of Commission Decision C(2018) 7141 final of 31 October 2018 in State aid case SA.44678 (2018/N) – modification of aid for LNG terminal in Lithuania.

Operative part

The Court:

1. Annuls Commission Decision C(2018) 7141 final of 31 October 2018 in State aid case SA.44678 (2018/N) relating to modification of aid for LNG terminal in Lithuania, in so far as the Commission decided not to raise objections to the State aid resulting from the 2016 amendments;

2. Dismisses the action as to the remainder;