Provisional text

JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)

22 September 2021 ( )

(State aid – Tariff for electricity supply – Fixing of the tariff invoiced to Alouminion by decision of an arbitration tribunal – Decision to take no further action on the complaint – Decision finding that there is no aid – Act open to challenge – Interested person status – Interest in bringing proceedings – Locus standi – Admissibility – Whether attributable to the State – Advantage – Private operator principle – Serious difficulties)

In Joined Cases T‑639/14 RENV, T‑352/15 and T‑740/17,

Dimosia Epicheirisi Ilektrismou AE (DEI), established in Athens (Greece), represented, in Case T‑639/14 RENV, by E. Bourtzalas, A. Oikonomou, E. Salaka, C. Synodinos, H. Tagaras and D. Waelbroeck, in Case T‑352/15, by E. Bourtzalas, C. Synodinos, E. Salaka, H. Tagaras and D. Waelbroeck and, in Case T‑740/17, by E. Bourtzalas, E. Salaka, C. Synodinos, H. Tagaras, D. Waelbroeck, A. Oikonomou and V.-K.-L. Moumoutzi, lawyers,

applicant,

v

European Commission, represented, in Case T‑639/14 RENV, by É. Gippini Fournier and A. Bouchagiar and, in Cases T‑352/15 and T‑740/17, by A. Bouchagiar and P.-J. Loewenthal, acting as Agents,

defendant,

supported by

Mytilinaios AE – Omilos Epicheiriseon, formerly Alouminion tis Ellados VEAE, established in Marousi (Greece), represented by N. Korogiannakis, N. Keramidas, E. Chrysafis and D. Diakopoulos, lawyers,

intervener,

APPLICATION, in Case T‑639/14 RENV, based on Article 263 TFEU seeking annulment of letter COMP/E3/ΟΝ/AB/ark *2014/61460 from the Commission dated 12 June 2014 informing DEI that no further action would be taken on its complaints, in Case T‑352/15, based on Article 263 TFEU seeking annulment of Commission Decision C(2015) 1942 final of 25 March 2015 (Case SA.38101 (2015/NN) (ex 2013/CP) – Greece – Alleged State aid to Alouminion SA in the form of electricity tariffs below cost following an arbitration decision) and, in Case T‑740/17, based on Article 263 TFEU seeking annulment of Commission Decision C(2017) 5622 final of 14 August 2017 (Case SA.38101 (2015/NN) (ex 2013/CP) – Greece – Alleged State aid to Alouminion SA in the form of electricity tariffs below cost following an arbitration decision),

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of A.M. Collins, President, V. Kreuschitz (Rapporteur), Z. Csehi, G. De Baere and G. Steinfatt, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 8 October 2020,

gives the following

Judgment

I. Background to the disputes and procedures

1 The present cases concern three closely related disputes which have arisen one after the other and concern essentially the same subject matter, namely the question whether the electricity supply tariff (‘the tariff in question’) which the applicant, Dimosia Epicheirisi Ilektrismou AE (DEI), an electricity producer and supplier established in Athens (Greece) and controlled by the Greek State, must charge, by virtue of an arbitration award, to its largest customer, namely the intervener, Mytilinaios AE, formerly Alouminion tis Ellados VEAE, an aluminium producer, involves the grant of State aid.

2 Case T‑639/14 RENV concerns an application by the applicant for annulment of letter COMP/E3/ΟΝ/AB/ark *2014/61460 from the European Commission dated 12 June 2014, signed by a Head of Unit of the Directorate-General (DG) for Competition (‘the contested letter’), informing the applicant, in essence, that no further action would be taken on the complaint it had made on the ground that the tariff in question did not constitute State aid as the criteria relating to whether the measure could be attributable to the State and to whether the measure conferred an advantage on the undertaking were not met. In that complaint, filed on 23 December 2013 (‘the second complaint’), the applicant had disputed Decision No 1/2013 of 31 October 2013 of the special arbitration tribunal (‘the arbitration award’) to which the applicant and the intervener had referred their dispute, under Article 37 of the nomos 4001/2011, gia ti leitourgia Energeiakon Agoron Ilektrismou kai Fysikou Aeriou, gia Erevna, Paragogi kai diktya metaforas Ydrogonanthrakon kai alles rythmiseis (Law No 4001/2011 on the operation of the electricity and gas energy markets, research, production and hydrocarbon transport networks and other regulations) (FEK A’ 179/22.8.2011; ‘Law No 4001/2011’), and by which that tribunal had fixed the tariff in question for the period from 1 July 2010 to 31 December 2013 (‘the period at issue’) at a gross amount of 40.7 EUR/MWh and a net amount of 36.6 EUR/MWh.

3 Case T‑352/15 concerns an application by the applicant for annulment of Decision C(2015) 1942 final of 25 March 2015 (Case SA.38101 (2015/NN) (ex 2013/CP) – Greece – Alleged State aid to Alouminion SA in the form of electricity tariffs below cost following an arbitration decision) (‘the first contested decision’), in which the Commission, first, withdrew and replaced the contested letter with that decision and, secondly, took the view that the arbitration award did not involve the granting of State aid to the intervener within the meaning of Article 107(1) TFEU, essentially on the ground that the applicant’s voluntary submission of its dispute with the intervener to arbitration was consistent with the conduct of a prudent investor operating in a market economy and, therefore, did not confer an advantage.

4 Case T‑740/17 concerns an application by the applicant for annulment of Decision C(2017) 5622 final of 14 August 2017 (Case SA.38101 (2015/NN) (ex 2013/CP) – Greece – Alleged State aid to Alouminion SA in the form of electricity tariffs below cost following an arbitration decision) (‘the second contested decision’), in which the Commission again decided, while expressly repealing and replacing both the contested letter and the first contested decision (paragraphs 8 and 51 and Section 5 of the second contested decision), that the arbitration award did not involve the granting of State aid within the meaning of Article 107(1) TFEU. The reasons given in support of that conclusion, based on compliance with the prudent private investor operating in a market economy test and lack of an advantage, are identical to those set out in the first contested decision.

5 Hereinafter, first, the first and second contested decisions, taken together, will be referred to as ‘the contested decisions’ and, secondly, those decisions, taken together with the contested letter, will be referred to as ‘the contested measures’.

6 The present disputes are the continuation of a long-running dispute between the applicant and the intervener regarding the electricity supply tariff intended to replace the preferential tariff stemming from an agreement which was signed in 1960 but which expired in 2006.

7 On 4 August 2010, the applicant and the intervener signed a framework agreement concerning the electricity supply tariff to be applied during the period at issue, in addition to the arrangements for the amicable settlement of an alleged debt owed by the intervener to the applicant, which had accrued during the period from 1 July 2008 to 30 June 2010. On the basis of the criteria laid down in that framework agreement, the intervener and the applicant have been unsuccessful in negotiating the content of a draft electricity supply contract.

8 After the applicant sent the draft electricity supply contract to the Rythmistiki Archi Energeias (Greek Energy Regulator, Greece; ‘the RAE’), it adopted Decision No 692/2011 (FEK B’ 2529/7.11.2011) on the ‘basic principles for electricity pricing in Greece’. That decision was subsequently incorporated into the Greek Electricity Supply Code (FEK B’ 832/9.4.2013).

9 As part of an arbitration agreement signed on 16 November 2011, the intervener and the applicant agreed to entrust the resolution of their dispute to the permanent arbitration body of the RAE, in accordance with Article 37 of Law No 4001/2011. In that regard, the arbitration agreement provides inter alia as follows:

‘The parties have agreed to have joint recourse to the arbitration referred to in Article 37 of Law No 4001/2011 so that, in accordance with the basic principles of pricing for high-voltage customers, as set out by the RAE in its Decision No 692[/2011], but also taking into account … Decision No 798[/2011] and … Award No 8/2010 of the arbitration tribunal, the RAE will update and adapt the pricing conditions contained in the draft [electricity supply] contract drawn up on 5 October 2010 with a view to implementing the [framework] agreement, and, in the framework of the [said] decisions …, it will draw up the contractual conditions for supply between the parties which are applicable from 6 June 2011, so that those conditions, first, correspond to [the intervener’s] consumption profile and, secondly, cover at least the costs borne by [the applicant].’

10 Following a complaint lodged by the intervener with the RAE under Article 140(6) and Article 35 of Law No 4001/2011, the latter, by Decision No 346/2012 of 9 May 2012 set, on a provisional basis, an electricity supply tariff of 42 EUR/MWh applicable to the intervener.

11 In a complaint lodged with the Commission on 15 June 2012 (‘the first complaint’), the applicant submitted, inter alia, that that tariff obliged it to supply the intervener electricity at a price below its costs and thus below the market price and that, therefore, the RAE had granted that company unlawful State aid.

12 On 31 October 2013, by the arbitration award, the arbitration tribunal fixed the tariff in question. Following an action brought by the applicant before the Efeteio Athinon (Court of Appeal, Athens, Greece), that court, by Judgment No 634/2016 of 18 February 2016, upheld that award.

13 On 18 December 2013, the intervener lodged a complaint with the Elliniki Epitropi Antagonismou (Greek Competition Commission; ‘the EEA’), claiming that the applicant had abused its dominant position by proposing a new tariff, which was allegedly excessive and discriminatory, from 2013. That complaint led to the adoption by the EEA, on 22 July 2015, of Decision No 621/2015 (FEK B’ 492/26.2.2016) which took the view, provisionally, that the applicant had abused its dominant position to the detriment of the intervener, inter alia, by refusing, unjustifiably, to continue trade relations with it and to sell electricity to it and by having considered imposing on it other trading conditions which were unreasonable or unfair. By decision of 18 January 2016, the EEA accepted the behavioural commitments proposed by the applicant which led to the closure of the complaint.

14 On 23 December 2013, the applicant lodged the second complaint with the Commission, claiming that the arbitration award constituted State aid (see paragraph 2 above).

15 On 6 May 2014, the Commission sent the applicant its preliminary assessment, according to which there was no need to investigate the second complaint. By letters of 20 May and 6 June 2014, the applicant submitted additional observations to the Commission.

16 By the contested letter (see paragraph 2 above), the Commission informed the applicant that it was closing the investigation of its complaint essentially on the following grounds:

‘We note that the arguments contained in your letter of 6 June 2014 are not new and [were] taken into account in our preliminary assessment letter of 6 May 2014. Indeed, with your letter of 6 June 2014, you have still not demonstrated that the arbitration tribunal is a body exercising State authority, especially since both [the applicant and the intervener had recourse] voluntarily to the arbitration, without any legal obligation to that end. You also admit that [the applicant] (and therefore the [Greek] State) had various options at its disposal in order to conclude on the tariff that [it] should charge [the intervener]. Given that the arbitration tribunal had a mandate to decide on a tariff, in accordance with the general principles governing the arbitration procedure and taking into consideration decisions and guidelines provided previously by the [RAE] on the subject, the [Greek] State does not seem to have had the possibility to dictate the decision of the arbitration tribunal. Thus, the services of DG Competition reiterate their position as expressed in the letter of 6 May 2014 as regards the fact that the decision of the arbitration tribunal cannot be attributed to the [Greek] State, since you did not provide sufficient evidence to dispute this position.

As regards your allegation that the tariff decided by the arbitration tribunal is below the cost of [the applicant], we note that your arguments on the cost methodology are inconsistent with those of the Greek authorities, [the] RAE and the arbitration tribunal decision. Indeed, the arbitration tribunal had a specific mandate to determine a tariff that would cover the costs of [the applicant] and [it] had the opportunity to present its arguments in that context. [That award] explicitly acknowledges that [that] tariff is covering the costs of [the applicant] plus a reasonable profit, while at the same time taking into account the consumer profile of [the intervener]. Thus, the services of DG Competition reiterate their position as expressed in the letter of 6 May 2014 as regards the lack of a selective advantage in the measure in question, since you did not provide sufficient evidence to dispute this position.

In light of the above, the services of DG Competition have concluded that the information provided by your letter of 6 June [2014] [did] not provide any evidence which would dispute our preliminary assessment letter of 6 May 2014. We also take note of the fact that you do not provide us with any further or new information which would demonstrate the existence of an infringement of the State aid rules.

Thus, the services of DG Competition have concluded that this information [was] not sufficient to justify a further investigation of your complaint.’

17 By application lodged at the Registry of the General Court on 22 August 2014, the applicant brought the action registered under number T‑639/14 seeking annulment of the Commission’s decision to close the investigation of its complaints, as contained in the contested letter.

18 By letter of 7 October 2014 lodged at the Registry of the General Court, the applicant and the Commission jointly requested, under Article 77(c) of the Rules of Procedure of the General Court of 2 May 1991, a stay of proceedings for a period of six months, thus until 7 April 2015, in order to enable the Commission to re-examine the matters raised in the application. That request was granted by order of the President of the Fourth Chamber of the General Court of 24 October 2014.

19 By document lodged at the Registry of the General Court on 19 December 2014, the intervener applied for leave to intervene in support of the form of order sought by the Commission in Case T‑639/14.

20 On 25 March 2015, the Commission adopted the first contested decision (see paragraph 3 above).

21 In support of the first contested decision, the Commission considered, inter alia, in paragraphs 12 and 13 of that decision, that:

‘In the [second] complaint, [the applicant] also refers to [the first complaint]. In this [first] complaint it alleged that Decision 346/2012 by [the RAE], which set an interim tariff for the electricity supplied to [the intervener] for the time until the dispute between those two parties concerning the tariff was settled, obliged [the applicant] to supply electricity to [the intervener] below market prices and, thereby, to grant State aid to [the intervener]. However, as the Arbitration Decision fully and retroactively replaced the interim tariff set by [the RAE], the Commission considers that the [first] complaint … has become without object.

Thus, the present decision only assesses the [second] complaint … concerning the question whether any State aid was granted to [the intervener] in the form of electricity tariffs below costs following the arbitration decision.’

22 Thus, in its analysis, the Commission confined itself to assessing whether the fixing and implementation of that tariff was consistent with the granting of an advantage to the intervener for the purposes of Article 107(1) TFEU. To that end, it examined whether, by agreeing to settle the dispute with the intervener by having recourse to the arbitration procedure and by complying with the arbitration award, the applicant, in its capacity as a public undertaking, had acted in accordance with the requirements of the private investor test (paragraphs 25 to 47 of the first contested decision). It concluded, first, that the conditions for applying that test were satisfied in the present case and that, therefore, no advantage had been granted to the intervener and, secondly, that, since the first contested decision reflected its final position in that regard, the contested letter had to be regarded as having been replaced by that decision (paragraphs 48 and 49 of that decision).

23 The Commission therefore found that the arbitration award did not constitute State aid (Section 4 of the first contested decision).

24 By letters of 27 April and 19 June 2015 lodged at the Registry of the General Court, the Commission applied to the General Court for a decision that, following the first contested decision, the action brought against the contested letter had become devoid of purpose and that there was no longer any need to adjudicate on it. The applicant submitted to the General Court its observations on that request by letter of 3 July 2015.

25 By application lodged at the Registry of the General Court on 29 June 2015, the applicant brought the action registered under number T‑352/15 for annulment of the first contested decision.

26 By document lodged at the Registry of the General Court on 16 November 2015, the intervener applied for leave to intervene in support of the form of order sought by the Commission in Case T‑352/15.

27 By order of 9 February 2016, DEI v Commission (T‑639/14, not published, EU:T:2016:77, paragraphs 36 and 37), the General Court decided that there was no longer any need to rule on the action in Case T‑639/14 on the ground, inter alia, that the first contested decision had formally replaced the contested letter, so that that letter ‘[was] no longer part of the EU legal order, in so far as [it] was repealed with effect from the [said] decision’. It also decided that there was therefore no longer any need to rule on the intervener’s application for leave to intervene.

28 On 22 April 2016, the applicant brought an appeal before the Court of Justice against that order, registered under number C‑228/16 P.

29 By order of 8 June 2016, DEI v Commission (T‑352/15, not published, EU:T:2016:386), the General Court (Fourth Chamber) granted the intervener leave to intervene in Case T‑352/15. The intervener lodged its statement in intervention and the main parties lodged their observations on that statement within the period prescribed.

30 By judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409, paragraphs 44 and 46), the Court of Justice set aside the order of 9 February 2016, DEI v Commission (T‑639/14, not published, EU:T:2016:77), referred the case back to the General Court and reserved the costs.

31 Following the delivery of that judgment, Case T‑639/14, now numbered T‑639/14 RENV, was allocated to the Fifth Chamber of the General Court to which the Judge-Rapporteur was assigned.

32 By letter of 27 July 2017 lodged at the Registry of the General Court, the applicant requested that Cases T‑639/14 RENV and T‑352/15 be joined for the purposes of the oral part of the procedure. By letter of 21 August 2017, the Commission agreed to such a joinder.

33 On 14 August 2017, the Commission adopted the second contested decision (see paragraph 4 above).

34 By letters of 24 August 2017 lodged at the Registry of the General Court, thus following the adoption of the second contested decision, the Commission applied to the General Court for a decision, in accordance with Article 130 of the Rules of Procedure of the General Court, that the actions in Cases T‑639/14 RENV and T‑352/15 had become devoid of purpose and that there was no longer any need to adjudicate on them. By letter of 27 October 2017, the intervener declared that it supported the Commission’s application for a declaration that there was no need to adjudicate in Case T‑352/15. By letters of the same date, the applicant stated that it objected to a declaration that there was no need to adjudicate in those cases.

35 By application lodged at the Registry of the General Court on 3 November 2017, the applicant brought an action registered under number T‑740/17 for annulment of the second contested decision.

36 On 21 December 2017, by way of measures of organisation of procedure, the General Court asked the parties about a possible stay of proceedings in Cases T‑639/14 RENV and T‑352/15 pending the completion of the written part of the procedure in Case T‑740/17. By letters of 4 and 8 January 2018, the Commission and the applicant stated respectively that they did not object to the proceedings being stayed.

37 By document lodged at the Registry of the General Court on 12 March 2018, the intervener applied for leave to intervene in support of the form of order sought by the Commission in Case T‑740/17.

38 By orders of 14 May 2018, the General Court ordered that the Commission’s applications for a declaration that there was no need to adjudicate be reserved for the final judgment and reserved the costs in Cases T‑639/14 RENV and T‑352/15.

39 By order of 12 July 2018 the President of the Fifth Chamber of the General Court granted the intervener leave to intervene in Case T‑740/17. The intervener lodged its statement in intervention and the main parties lodged their observations on that statement within the period prescribed.

40 By decision of 13 July 2018, only the proceedings in Case T‑352/15 were stayed pending the completion of the written part of the procedure in Case T‑740/17.

41 By order of 25 September 2018 in Case T‑639/14 RENV, the President of the Fifth Chamber of the General Court granted the intervener leave to intervene in Case T‑639/14. The intervener lodged its statement in intervention and the main parties lodged their observations on that statement within the period prescribed.

42 By decision of the President of General Court of 28 February 2019, under Article 27(3) of the Rules of Procedure, Cases T‑639/14 RENV, T‑352/15 and T‑740/17 were assigned to a new Judge-Rapporteur sitting in the Third Chamber.

43 On 28 March 2019, acting on a proposal from the Judge-Rapporteur, the General Court asked the parties to express their views on a possible joinder of Cases T‑639/14 RENV, T‑352/15 and T‑740/17 for the purposes of the oral part of the procedure and the final decision. By letters of 4 April 2019, the Commission agreed to the joinder of those cases, without requesting confidential treatment of certain documents in the files. By letters of 25 April 2019, the applicant expressed its disagreement with the joinder of Case T‑639/14 RENV with Cases T‑352/15 and T‑740/17 and requested that it be dealt with separately, without, however requesting confidential treatment of certain documents in the files.

44 Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Third Chamber, to which the present cases were consequently allocated.

45 On a proposal from the Third Chamber, the General Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a formation sitting with a greater number of Judges.

46 By decision of the President of the Third Chamber (Extended Composition) of 26 February 2020, Cases T‑639/14 RENV, T‑352/15 and T‑740/17 were joined for the purposes of the oral part of the procedure and the decision which closes the proceedings, in accordance with Article 68 of the Rules of Procedure.

47 Acting on a proposal from the Judge-Rapporteur, the General Court (Third Chamber, Extended Composition) decided to open the oral part of the procedure.

48 By letter of 3 June 2020, the intervener submitted observations on the report for the hearing which were placed on file and served on the other parties.

49 Following the applicant’s request to postpone the hearing initially scheduled for 11 June 2020 on the ground that its staff lawyers, namely A. Oikonomou, E. Salaka and C. Synodinos, would be prevented from attending due to the ban on all foreign travel issued by the ‘hierarchical authority’ of DEI to its employees because of the health crisis, the General Court, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put a written question to the applicant concerning the existence of any employment relationship between itself and those salaried lawyers and their authorisation to represent it in the present proceedings, asking it to reply in writing. The applicant replied to that question within the prescribed period.

50 By letter of 29 September 2020, the applicant submitted observations on the report for the hearing containing eight annexes, the decision on their inclusion in the file being reserved.

51 By letter of 5 October 2020, the intervener submitted further observations on the report for the hearing which were placed on file and served on the other parties.

52 The parties presented oral argument and answered the questions put to them by the General Court at the hearing on 8 October 2020. At the hearing, the President decided that the applicant’s observations on the report for the hearing should be placed on file and served on the other parties and that a time limit should be set for them to submit their observations, which was noted in the minutes of the hearing.

53 As the oral part of the procedure was left open following the hearing, the Commission and the intervener submitted their observations within the prescribed period and, in the light of Article 85 of the Rules of Procedure, challenged the admissibility of the applicant’s observations on the report for the hearing. including the annexes thereto. Following the decision of the President of the Chamber to close the oral part of the procedure, by separate document lodged at the Registry of the General Court on 12 January 2021, the applicant requested that the Court reopen the oral part of the procedure in order to enable it to comment on those observations by the Commission and the intervener, by way of an exchange of arguments.

II. Forms of order sought by the parties

A. Case T‑639/14 RENV

54 The applicant claims that the Court should:

– annul the contested letter in so far as it contains the decision to reject its complaints;

– order the Commission to pay the costs.

55 The Commission contends that the Court should:

– principally, declare that there is no need to adjudicate;

– in the alternative, dismiss the action as inadmissible, or otherwise as unfounded;

– order the applicant to pay the costs.

56 The intervener submits that the Court should:

– dismiss the action;

– order the applicant to pay the costs, including those incurred by the intervener.

B. Case T‑352/15

57 The applicant claims that the Court should:

– annul the first contested decision;

– order the Commission to pay the costs.

58 The Commission and the intervener contend that the Court should:

– principally, declare that there is no need to adjudicate;

– in the alternative, dismiss the action as inadmissible, or otherwise as unfounded;

– order the applicant to pay the costs.

C. Case T‑740/17

59 The applicant claims that the Court should:

– annul the second contested decision;

– order the Commission to pay the costs.

60 The Commission contends that the Court should:

– dismiss the action as inadmissible, or otherwise as unfounded;

– order the applicant to pay the costs.

61 The intervener submits that the Court should:

– dismiss the action;

– order the applicant to pay the costs, including those incurred by the intervener.

III. Law

A. Preliminary observations

62 As a preliminary point, it should be noted that, for the purposes of resolving the disputes, there is no need to determine whether the applicant’s ‘salaried lawyers’, namely A. Oikonomou, E. Salaka and C. Synodinos, are, under the applicable Greek legislation, authorised to represent it in the present proceedings (see paragraph 49 above), since that representation is ensured, sufficiently, by E. Bourtzalas, H. Tagaras, D. Waelbroeck and V.-K.-L. Moumoutzi.

63 Moreover, it is appropriate to assess the action in Case T‑740/17 first, since its outcome is likely to have an impact on the purpose of the disputes and the applicant’s interest in bringing proceedings in Cases T‑639/14 RENV and T‑352/15 being maintained.

B. Case T‑740/17

1. Admissibility

64 The Commission, supported by the intervener, submits that the action is inadmissible on the ground that, first, that the applicant is neither directly nor individually concerned by the second contested decision, secondly, in the absence of binding legal effects vis-à-vis the applicant, that decision cannot be the subject of an action for annulment, and, thirdly, the applicant has not established any interest in bringing the proceedings.

65 In the first place, the Commission submits, in essence, that the applicant does not have the status of a party ‘concerned’ in accordance with Article 108(2) TFEU or an ‘interested party’ within the meaning of Article 1(h) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9). Neither the fact of being a complainant or having participated in the administrative procedure, nor that of being obliged to grant the alleged aid from its own funds would be sufficient for that purpose; the applicant should rather have demonstrated its status as a competitor of the intervener, as the alleged recipient undertaking, which it did not do. The same applies to being the ‘pot from which resources are taken to finance the alleged … aid’, since a Member State’s cost savings or safeguarding the soundness of the public sector are not, as such, an objective pursued by the rules on State aid.

66 According to the Commission, supported by the intervener, a fortiori, the applicant has not demonstrated that the alleged aid has had a significant effect on its market position, and therefore the pleas seeking to call into question the merits of the second contested decision are inadmissible. It states in essence that that alleged aid relates to the relationship pursuant to which the applicant supplies electricity to the intervener, namely a customer relationship and not a competitive relationship between those undertakings. The intervener’s economic activity and the effect of the tariff in question on its competitive position are said to fall within the scope of the metallurgy sector, which is not relevant in the present case, since the applicant is active in the electricity production or supply sector. Moreover, as the applicant itself acknowledges, the first, second and fourth to seventh pleas in law concerning the ‘infringement of Articles 107 and 108 TFEU’ do not refer to any serious difficulties. Finally, according to the Commission, the applicant is also not distinguished individually in its capacity as the provider of the alleged aid, in so far as it cannot be treated in the same way as a local authority which acted in the exercise of its legislative and fiscal autonomy.

67 In the second place, the Commission considers that the second contested decision is not capable of forming the subject matter of an action for annulment brought by the applicant on the ground that that decision does not produce binding legal effects likely to affect its interests by bringing about a distinct change in its legal position as the de facto provider of the alleged aid. It states that that decision is not binding on the Greek State since it concludes that the tariff in question falls outside the scope of Article 107 TFEU. However, the obligation on the applicant to apply that tariff is said to derive from its voluntary commitment to comply with the arbitration award and not from that decision. According to the Commission, the decision in question gives full satisfaction to the Greek State in that it guarantees the Greek authorities the freedom to implement the tariff in question without triggering the procedure in respect of existing aid. The applicant, as a public undertaking which has granted the alleged aid, does not belong to the category of applicants entitled to bring an action against such a decision.

68 In the third place, the Commission, supported by the intervener, considers that the applicant has no interest in bringing proceedings against the second contested decision. It states that that decision gives it full satisfaction as the entity granting the alleged aid and the obligation to grant aid to the intervener derives exclusively from the arbitration award. In its view, the interest which the applicant seeks to protect does not fall within the objectives pursued by the rules on State aid and its approach is contrary to the purpose of Articles 107 and 108 TFEU, which are based on the logic that the entity granting the aid wishes to have the greatest possible leeway in that regard. It compares the applicant’s strategy with that of a local authority which has signed a contract considered to be no longer profitable and alleges that it is State aid in order to release itself from its commitment. Such conduct is contrary, inter alia, to the legal principle that no one may rely on their own wrongdoing (nemo auditur propriam turpitudinem allegans or venire contra factum proprium). The intervener states that the applicant wrongly and improperly relies on an interest of a ‘private’ nature that is not protected by Article 108 TFEU, that is to say its own financial interests and not its status as a ‘State’ which alone is capable of granting unlawful State aid. It states that the applicant seeks to create confusion between, on the one hand, its ownership by the Greek State which, as its majority shareholder, regularly approves its tariffs for high-voltage customers and, on the other, its ‘private’ interest in order to establish its interest in bringing proceedings while maintaining its erroneous argument as to the existence of aid.

69 The applicant disputes the arguments put forward by the Commission and the intervener and considers that the present action is admissible.

70 It is necessary to assess, first, whether the second contested decision constitutes a challengeable act, next, whether the applicant has an interest in bringing proceedings and, finally, whether it has standing to bring proceedings under the fourth paragraph of Article 263 TFEU.

71 In the first place, according to settled case-law, any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as ‘actionable measures’, within the meaning of Article 263 TFEU. In order to ascertain whether or not a measure which has been challenged produces such effects it is necessary to look to its substance. Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgments of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48). Moreover, where an action for annulment is brought by a natural or legal person, as in the present case, the binding legal effects of the contested measure must be capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 37 and the case-law cited).

72 In the present case, the second contested decision is a decision finding that State aid does not exist, for the purposes of Article 4(2) of Regulation 2015/1589, the binding legal force of which in respect of those to whom it is addressed within the meaning of the fourth paragraph of Article 288 TFEU, in this case the Hellenic Republic, is not in doubt.

73 In that regard, the Commission and the intervener argue unsuccessfully that the second contested decision produces no legally binding effects on the applicant.

74 It is settled case-law that Article 15(1) of Regulation 2015/1589 obliges the Commission, once additional comments have been lodged by interested parties or the reasonable period has expired, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, as in the present case, or raising no objections, or initiating the formal investigation procedure (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraphs 37 to 40; of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 63; and of 31 May 2017, DEI v Commission, C‑228/16 P, EU:C:2017:409, paragraph 29). It necessarily follows that such a decision entails binding legal effects for the purposes of the fourth paragraph of Article 288 TFEU also in respect of such an interested party.

75 Moreover, in applying that case-law to the facts giving rise to Case T‑639/14 RENV, the Court of Justice held that, by the adoption of the contested letter, the Commission had closed the file, deciding to close the preliminary examination procedure triggered by the applicant’s complaint, had held that in the inquiry opened it was not possible to conclude that there had been aid within the meaning of Article 107 TFEU and, accordingly, had refused to initiate the formal investigation procedure provided for under Article 108(2) TFEU. In its view, the Commission therefore adopted a definitive position on the applicant’s request for a finding of infringement of Articles 107 and 108 TFEU. It stated that, as the contested letter prevented the applicant from submitting its observations in a formal investigation procedure, that letter produced binding legal effects capable of affecting the applicant’s interests. It concluded that that decision constituted an act open to challenge for the purposes of Article 263 TFEU (see, to that effect, judgment of 31 May 2017, DEI v Commission, C‑228/16 P, EU:C:2017:409, paragraphs 30 and 31 and the case-law cited).

76 It must be noted that the same applies to the second contested decision, which, in the Commission’s own words, is intended to replace both the contested letter and the first contested decision.

77 That assessment is not called into question by the arguments put forward by the Commission and the intervener.

78 First, the Commission has no basis for relying, in support of its line of argument, on the case-law pursuant to which the challengeable nature of an act presupposes that it is intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position (see judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 29 and the case-law cited), since that line of argument disregards the case-law recalled in paragraph 75 above, and the fact that, for the purposes of closing the applicant’s complaint, the second contested decision refuses the applicant’s request to investigate whether the tariff in question involved the granting of an advantage and, therefore, to classify the outcome of the arbitration procedure as an aid measure.

79 Secondly, the Commission and the intervener cannot reasonably claim that the applicant is not a ‘party concerned’ or an ‘interested party’ whose legal position is not affected because it is not protected by State aid law, on the ground that, inter alia, the second contested decision, in fact, gives full satisfaction to the Greek State with which the applicant is conflated on account of its status as a public undertaking controlled by the Greek authorities.

80 In accordance with the concept of ‘interested party’ referred to in Article 1(h) of Regulation 2015/1589, in its judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409, paragraphs 29 to 31), the Court proceeds from a broad concept of ‘interested party’ which includes anyone whose interests might be affected by the granting of aid, including the complainant whose complaint gave rise to the initiation of the preliminary examination stage. In the present case, it has thus pointed out that the contested letter produced binding legal effects capable of affecting the applicant’s interests by preventing it from submitting its observations in a formal investigation procedure, under Article 108(2) TFEU, which necessarily implies that it has recognised its status as a party concerned for the purposes of that provision. That assessment applies mutatis mutandis to the second contested decision which is said to have replaced the contested letter. Therefore, the argument that, in its judgment, the Court of Justice did not examine whether the applicant was a party concerned must be rejected.

81 That assessment is supported by the case-law in accordance with which the concept of parties concerned within the meaning of Article 108(2) TFEU is to be interpreted broadly (judgment of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 16). Similarly, the use of the expression ‘in particular’ in Article 1(h) of Regulation 2015/1589 indicates that that provision contains only a non-exhaustive list of the persons who may be classified as interested parties, and therefore that concept covers an indeterminate group of addressees (see, to that effect, judgment of 13 June 2019, Copebi, C‑505/18, EU:C:2019:500, paragraph 34 and the case-law cited). Thus, it has been held that that provision did not rule out the possibility that an undertaking which was not a direct competitor of the beneficiary of the aid could be categorised as an interested party, provided that that undertaking demonstrated that its interests could be adversely affected by the grant of the aid and that, to that end, it was sufficient for it to establish, to the requisite legal standard, that the aid was likely to have a specific effect on its situation (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 63 to 65 and the case-law cited).

82 Therefore, the argument put forward by the Commission and the intervener that persons who are not in a competitive relationship with the alleged recipient of the aid in question should be excluded from the concept of parties concerned must be rejected.

83 On the contrary, in order to qualify as interested parties, it is sufficient for persons to claim that their interests might be affected by the granting of that aid (see paragraph 81 above). That applies in the present case since, first, according to the applicant, the arbitration award fixing the tariff in question obliges it to grant unlawful aid to the intervener while at the same time causing it financial losses and, secondly, because of the closure of the file on its complaint by, inter alia, the second contested decision, it is denied the opportunity to submit its observations in that regard in the context of a formal investigation procedure.

84 It follows that, in so far as the applicant claims, under Article 24(2), read in conjunction with the first subparagraph of Article 12(1) and Article 15(1) of Regulation 2015/1589, that the tariff in question constitutes aid which is prohibited by Article 107(1) TFEU and which affects its economic interests, it has the status of an ‘interested party’ within the meaning of Article 1(h) of that regulation or a ‘party concerned’ in accordance with Article 108(2) TFEU which is prevented by the contested measures, pursuant to which no further action is to be taken on its complaints, from submitting its observations in a formal investigation procedure.

85 The arguments put forward by the Commission and the intervener that the second contested decision does not affect the applicant’s legal position or its interests, as an interested party, must therefore be rejected.

86 In the second place, according to settled case-law, including in the field of State aid, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested measure annulled. Such an interest requires that the annulment of that measure must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. In addition, that interest must be vested and current and is to be assessed as at the date on which the action is brought (see, to that effect, judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 55 and 56, and of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraphs 28 and 29 and the case-law cited).

87 In the present case, the Commission and the intervener call into question whether the applicant has an interest in bringing proceedings by essentially putting forward the same grounds as those relied on in support of their unfounded argument that the second contested decision is not a challengeable act.

88 However, it is apparent from the considerations set out in paragraphs 71 to 85 above that the applicant’s action is directed against an act which adversely affects it by affecting its legal position and its interests and that, therefore, its annulment is liable to procure an advantage for it, albeit because it is likely, under the first paragraph of Article 266 TFEU, to lead the Commission to initiate the formal investigation procedure in accordance with Article 108(2) TFEU.

89 In that regard, the arguments put forward by the Commission and the intervener, alleging confusion between the Greek State and the applicant in order to attribute to it the alleged satisfaction of the Greek authorities with the outcome of the arbitration procedure and the comparison of the applicant’s position with that of a local authority cannot succeed. The applicant has set out in detail the reasons why it considers that, first, its economic situation was affected by the arbitration award in so far as it required it to charge the intervener for the supply of electricity a rate below its production costs and, secondly, the contested acts deciding that no further action be taken on its complaints prevented it from submitting its observations in a formal investigation procedure under Article 108(2) TFEU. In the light of those arguments, it follows from the case-law referred to in paragraphs 74 and 75 above that any annulment, inter alia, of the second contested decision on the ground that the Commission was faced with doubts or serious difficulties as to the existence of State aid is capable of procuring an advantage for the applicant precisely because it is such as to require the Commission to initiate the formal investigation procedure, in the context of which it could rely on the procedural guarantees conferred on it under Article 108(2) TFEU (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 52).

90 In that regard, the argument put forward by the Commission and the intervener that the binding legal effects adversely affecting the applicant are attributable not to the second contested decision, but to the arbitration award, cannot be accepted since that decision rejects the applicant’s request that the outcome of the arbitration procedure be classified as an aid measure and the applicant specifically accuses the Commission of having unlawfully failed to investigate, in that decision, whether the tariff in question involved the granting of an advantage (see paragraph 78 above). That assessment is unaffected by the fact that the applicant voluntarily referred the dispute with the intervener to arbitration, since that step does not necessarily imply its prior agreement with the outcome of that arbitration, as is moreover demonstrated by the fact that it unsuccessfully challenged that award before the Efeteio Athinon (Court of Appeal, Athens).

91 Nor is the Commission justified in invoking an infringement of the principle of law that no one may rely on his or her own wrongdoing. That argument is merely a further variant of the argument intended to conflate the applicant’s situation with that of the Greek State and to attribute to it any satisfaction on the part of the Greek authorities with the outcome of the arbitration procedure; it cannot therefore be upheld either. For the same reasons, the intervener’s argument, that the applicant wrongly and improperly relies on an alleged ‘private (financial) interest’ which is not protected by State aid law on the ground that its interests overlap with those of the Greek State which controls it, must be rejected.

92 Consequently, it must be concluded that the applicant has proved its interest in bringing proceedings against the second contested decision.

93 In the third place, with regard to the applicant’s standing to bring proceedings under the fourth paragraph of Article 263 TFEU, it should be recalled that the Commission, supported by the intervener, disputes that the applicant is directly and individually concerned, in accordance with that provision, by the second contested decision, in particular on the ground that the applicant is neither an ‘interested party’ nor a competitor of the intervener, whose market position is liable to be substantially affected by the alleged aid.

94 For the reasons set out in paragraphs 79 to 84 above, the arguments put forward by the Commission and the intervener seeking to call into question the applicant’s status as an interested party or party concerned must be rejected at the outset. The applicant must therefore be regarded as such an interested party for the purposes of determining its standing.

95 In accordance with settled case-law, for the admissibility of an action brought against a decision adopted under Article 4(2) or (3) of Regulation 2015/1589 to be acknowledged, it is sufficient for the applicant to be an ‘interested party’ who, by its action, is seeking to obtain protection of its procedural rights which it would enjoy following the initiation of a formal investigation procedure under Article 108(2) TFEU. More specifically, in the context of an action brought against such a decision, its lawfulness depends on whether there are serious difficulties in determining the existence of State aid or doubts as to the compatibility of such aid with the internal market which must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation can participate. Consequently, an interested party within the meaning of that provision is directly and individually concerned by such a decision on the ground that, as a party to whom the procedural guarantees under Article 108(2) TFEU and Article 6(1) of that regulation apply, it is able to ensure that those guarantees are respected only if it has the possibility of challenging that decision before the EU judicature. Thus, in accordance with that case-law, the specific status of an interested party within the meaning of Article 1(h) of that regulation, in conjunction with the specific subject matter of the action, is sufficient to distinguish individually, for the purposes of the fourth paragraph of Article 263 TFEU, the applicant contesting a decision adopted under Article 4(2) or (3) of the same regulation (see, to that effect and by analogy, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 47 and 48 and the case-law cited, and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 41).

96 Where, as in the present case, those conditions are met, it is therefore not necessary to examine the very controversial issue between the parties as to whether the applicant may be classified as a competitor of the intervener in order to give it standing to bring proceedings under the fourth paragraph of Article 263 TFEU. It is only if the applicant calls into question the merits of the contested decision as such that the mere fact that it may be regarded as ‘concerned’ within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible and that it must then demonstrate that it has a particular status within the meaning of the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 108), and, in particular, that its market position is substantially affected by the aid to which that decision relates (see, to that effect, judgment of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum, C‑78/03 P, EU:C:2005:761, paragraph 37).

97 The case-law has also made clear that, where an applicant seeks the annulment of a decision adopted under Article 4(2) or (3) of Regulation 2015/1589, it essentially contests the fact that that decision was adopted without that institution initiating the formal investigation procedure, thereby acting in breach of the applicant’s procedural rights. In support of such an action, the applicant may rely on any plea in law capable of showing that the assessment of the information and evidence which the Commission had or might have had at its disposal during the preliminary examination stage should have given rise to serious difficulties in determining the existence of State aid or raised doubts as to the compatibility of such aid with the internal market, without having the consequence of changing the subject matter of the action or altering the conditions of its admissibility. On the contrary, according to that case-law, the existence of such doubts is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589 (see, to that effect and by analogy, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59 and the case-law cited; of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 81; and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 45 and 46).

98 Therefore, in the case of an action challenging the legality of a decision adopted under Article 4(2) or (3) of Regulation 2015/1589, without initiating the formal procedure, it is necessary, in principle, to examine all the complaints and arguments raised by the applicant in the context of the pleas in law relied on, in order to assess whether those pleas make it possible to identify serious difficulties or doubts, on account of which, if present, the Commission should have been required to open that procedure (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 45, 46 and 49 and the case-law cited).

99 In the present case, the Commission disputes that the present action seeks only to raise doubts and to safeguard the procedural guarantees afforded to the applicant in the context of a formal investigation procedure under Article 108(2) TFEU. It states, in essence, that, in reality, the pleas for annulment relied on in support of that action are intended to call into question the merits of the second contested decision, and therefore the applicant should have demonstrated its standing to bring an action in accordance with the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 108) and, in particular, a significant effect on its market position as a competitor undertaking.

100 It is true that, unlike the applications in Cases T‑639/14 RENV and T‑352/15, the application in Case T‑740/17 does not contain a separate introductory section before the pleas for annulment stating the purpose of the present action which is to rely on the existence of ‘doubts’ or ‘serious difficulties’. The fact remains that paragraphs 35 and 36 of the latter application refer to the case-law on ‘serious difficulties’ in the context of admissibility. Moreover, the second and fourth to seventh pleas for annulment contain similar explicit references stating that they are intended to demonstrate the existence of ‘[serious] doubts’ or ‘serious difficulties’ which should have led the Commission to initiate the formal investigation procedure (see paragraphs 65, 91, 116, 129, 143, 148, 163, 187, 205 and 225 of that application). The fact that a similar clarification is lacking in the first and third pleas does not invalidate that assessment, since those pleas in law, namely the alleged failure to comply, first, with the requirements arising from the judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409), and, secondly, the obligation to state reasons and to examine the case diligently and comprehensively, are essentially formal and procedural in nature and are specifically linked to the Commission’s duty to state the reasons for the absence of doubts as to the existence of State aid or of serious difficulties in the examination of the case.

101 In the light of the foregoing considerations, it must be concluded that the present action is admissible in so far as it seeks to safeguard the procedural guarantees which the applicant would enjoy, as an interested party, if a formal investigation procedure were to be initiated under Article 108(2) TFEU.

102 In that regard, the pleas for annulment relied on must be regarded as seeking to establish the existence of doubts within the meaning of Article 4(3) and (4) of Regulation 2015/1589 or serious difficulties within the meaning of the case-law (see, to that effect, judgments of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 328, and of 9 September 2020, Kerkosand v Commission, T‑745/17, EU:T:2020:400, paragraph 106) which should have led the Commission to open the formal investigation procedure. In that context, in the light of the case-law referred to in paragraph 97 above, it is irrelevant that some of those pleas are formulated in terms of (manifest) infringement of a rule of law or contain complaints seeking a finding that there has been a (manifest) error of assessment, since the recognition of such an infringement or such an error necessarily implies the recognition of the existence of doubts or serious difficulties (see, to that effect, judgment of 22 September 2011, Belgium v Deutsche Post and DHL International, C‑148/09 P, EU:C:2011:603, paragraphs 58 to 66).

103 Consequently, it must be concluded that the applicant has proved its standing to bring proceedings under the fourth paragraph of Article 263 TFEU and that the action must be declared admissible without there being any need to examine whether the second contested decision constitutes a ‘regulatory act’.

2. Substance

(a) The pleas for annulment and the scope of the review of substantive legality

104 In support of the present action, the applicant raises seven pleas for annulment.

105 In the first plea, the applicant complains that the Commission misinterpreted the judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409).

106 In the second plea, the applicant accuses the Commission of having failed to fulfil its obligations under Article 24(2) of Regulation 2015/1589 and, in particular, of having infringed its right to be heard as guaranteed by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union.

107 In the third plea, the applicant alleges inadequate and contradictory reasoning and a breach of the obligation to examine the relevant matters of fact and of law with respect to the finding that, inter alia, the arbitration agreement set ‘clear and objective parameters’.

108 By the fourth plea, the applicant relies on a ‘manifest’ error of law in the application of the principle of the prudent private investor and in the interpretation of Articles 107(1) and 108(2) TFEU in respect of the finding that the tariff in question was a ‘logical consequence’ of those parameters.

109 By the fifth plea, the applicant alleges, first, a ‘manifest’ error of law in the interpretation and application of Articles 107 and 108 TFEU vitiating the finding that the Commission did not have to engage in complex economic assessments and, secondly, a ‘manifest’ error of law and a manifest error of assessment of the facts in that it failed to examine crucial evidence in order to establish the existence of State aid.

110 By the sixth plea, the applicant submits that the Commission infringed Article 107(1) and Article 108(2) TFEU by committing manifest errors of assessment with respect to the facts relating to the applicability of the test of the prudent private investor operating in a market economy (first part) and the application of that test (second part).

111 By the seventh plea, the applicant accuses the Commission of having committed a manifest error in the interpretation and application of Article 107(1) TFEU, of having infringed its obligation to state reasons and of having committed a manifest error of assessment of the facts by not further investigating its first complaint pursuant to Article 108(2) TFEU on the ground that it had become devoid of purpose following the arbitration award.

112 As regards the scope of the review of legality which the General Court is called upon to perform in this respect, it should be recalled that Article 108(3) TFEU and Article 4 of Regulation 2015/1589 provide for a stage at which the aid measures notified undergo a preliminary examination. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 107(1) TFEU. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the internal market; on the other hand, it is also possible that the measure may raise such doubts (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 43).

113 When, after the preliminary examination stage, the Commission adopts a decision whereby it finds that a State measure does not constitute aid that is incompatible with the internal market, it also implicitly refuses to initiate the formal investigation procedure. That principle applies both where the decision is taken on the ground that the Commission considers that the aid is compatible with the internal market, under Article 4(3) of Regulation 2015/1589, namely ‘a decision not to raise objections’, and where it is of the opinion, as in the present case, that the measure does not come within the scope of Article 107(1) TFEU and thus does not constitute State aid pursuant to Article 4(2) of that regulation (see, to that effect, judgments of 16 March 2021, Commission v Poland, C‑562/19 P, EU:C:2021:201, paragraph 50 and the case-law cited, and of 19 June 2019, Ja zum Nürburgring v Commission, T‑373/15, EU:T:2019:432, paragraph 111 and the case-law cited).

114 However, it is settled case-law that, if the Commission is unable to conclude, following an initial examination in the context of the procedure under Article 108(3) TFEU, that the State measure in question either is not ‘aid’ within the meaning of Article 107(1) TFEU, or, if classified as aid, is compatible with the FEU Treaty, or where that procedure has not enabled it to overcome all the serious difficulties involved in assessing the compatibility of the measure under consideration, the Commission is under a duty to initiate the formal investigation procedure provided for in Article 108(2) TFEU, without having any discretion in that regard. That obligation corresponds to that laid down in Article 4(4) of Regulation 2015/1589, under which Commission is required to initiate the procedure provided for in Article 108(2) TFEU where the measure at issue raises doubts as to its compatibility with the internal market (see, to that effect and by analogy, judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraphs 113 and 185 and the case-law cited; order of 25 June 2019, Fred Olsen v Naviera Armas, C‑319/18 P, not published, EU:C:2019:542, paragraph 30; and judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 57).

115 The concept of serious difficulties coincides with that of doubts (see, to that effect, judgments of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 328, and of 9 September 2020, Kerkosand v Commission, T‑745/17, EU:T:2020:400, paragraph 106) and is objective in nature. The existence of such difficulties must be looked for not only in the circumstances in which the Commission’s decision was adopted after the preliminary investigation but also in the assessments upon which the Commission relied. It follows that the lawfulness of a decision not to raise objections, based on Article 4(3) of Regulation 2015/1589, depends on the question whether the assessment of the information and evidence which the Commission had or might have had at its disposal during the preliminary investigation phase of the measure notified should objectively have raised doubts as to the compatibility of that measure with the internal market, given that such doubts must lead to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation may participate (see, to that effect, judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraphs 79 and 80 and the case-law cited, and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 58 and the case-law cited).

116 The case-law has also made it clear in that regard that the lawfulness of such a decision had to be assessed in the light of the information available to the Commission at the time when the decision was adopted, since the information ‘available’ to it was that which seemed relevant to the assessment to be carried out and which could have been obtained, upon request by the Commission, during the preliminary examination stage (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 70 and 71).

117 The onus is on the applicant to prove the existence of serious difficulties or doubts, proof that can take the form of a consistent body of evidence, inter alia, by pointing to and establishing the insufficient or incomplete nature of the examination conducted by the Commission during the preliminary examination procedure (see, to that effect, judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 82 and the case-law cited, and of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraphs 59 and 60 and the case-law cited).

118 In the light of the concepts of doubts or serious difficulties within the meaning of the case-law referred to in paragraphs 112 to 116 above, the third to fifth pleas in law must be examined together, since they seek to challenge the second contested decision for failing to respond adequately to the applicant’s complaints, even though those complaints alleged that the arbitration award, in so far as it fixed the tariff in question, granted an advantage to the intervener which did not correspond to market conditions and nonetheless for having refused to initiate the formal investigation procedure.

(b) The third to fifth pleas in law

(1) Summary of the main arguments of the parties in the context of the third plea in law

119 In support of the third plea, alleging inadequate and contradictory reasoning and a breach of the obligation to examine the relevant matters of fact and of law, the applicant submits, in essence, that, in paragraph 48 of the second contested decision, the Commission misinterpreted the wording of the second complaint, which did not concern the question whether its decision to refer the dispute to arbitration constituted State aid, but whether the tariff in question imposed by the arbitration award constituted such aid. In the absence of a sufficient account of the assessment of the relevant issues of fact and law and the reasons for the change in the Commission’s approach compared with that followed in Commission Decision 2010/460/EC of 19 November 2009 on State aid measures C 38/A/04 (ex NN 58/04) and C 36/B/06 (ex NN 38/06) implemented by Italy for Alcoa Trasformazioni (notified under document C(2009) 8112) (OJ 2010 L 227, p. 62; ‘the Alcoa decision’), the second contested decision is said to be vitiated by inadequate and contradictory reasoning. According to the applicant, by failing to verify the validity of the method of calculation and the amount of the tariff in question and by merely concluding that the applicant had acted as a prudent private investor, having regard to the parameters which led it to refer the dispute to arbitration, the Commission departed substantially from its approach in recital 154 of the Alcoa decision without giving specific reasons for that change.

120 According to the applicant, paragraph 43 of the second contested decision wrongly states that the arbitration agreement, on the basis of which the arbitration tribunal had to ‘update’ and ‘adjust’ the draft electricity supply contract and thus arrive at the applicable tariff conditions, established ‘clear and objective parameters’, even if a sufficient statement of reasons would have required a careful and serious assessment of those parameters. It observes that paragraph 42 of that decision merely refers to the ‘Basic Principles for Pricing of Electricity to High-Voltage Customers’ and to the fact that, according to the arbitration agreement, the arbitration award had to ensure that the tariff conditions corresponded not only to the characteristics of the intervener’s consumption, but also covered ‘at least’ its costs. It disputes the ‘clear and objective’ nature of those parameters, in the light, inter alia, of the need to determine the tariff conditions using an arithmetic calculation and the use of the vague expression ‘at least’. Even if the interpretation of those criteria were not ambiguous, the way in which they should be combined is said to still be entirely unclear and subjective. Moreover, the applicant points out that, in the arbitration agreement, it and the intervener expressed their disagreement as to whether or not the arbitration tribunal should take into account Award No 8/2010 and whether it should ‘update’, ‘adjust’ or ‘establish’ the tariff conditions for the period before or after 6 June 2011. Thus, far from having had ‘clear and objective parameters’ available to it, the arbitration tribunal is alleged to have relied on texts whose interpretation afforded much uncertainty and discretion. According to the applicant, the Commission failed to carry out a diligent analysis of those parameters and to explain sufficiently its analysis that they were ‘clear and objective’. A fortiori, insufficient reasons are given for the allegation that those ‘clear and objective parameters [limited] the discretion of the arbitrators’ (paragraphs 39 and 42 of the second contested decision). The Commission did not specify whether that ‘limitation’ was the immediate consequence of those parameters or that they excluded the existence of discretion on the part of the arbitration tribunal, or how that discretion was limited.

121 According to the applicant, the claim in paragraph 45 of the second contested decision that the tariff in question was the ‘logical consequence’ of the parameters in question is vitiated by a total lack of reasoning. It states that such a claim is incompatible inter alia with the analysis that it acted as a prudent private investor by referring the dispute to arbitration. It considers that it is impossible to classify a decision to resort to arbitration as prudent if the outcome is announced in advance as being unfavourable to the party that took that decision, namely, in the present case, the fixing of a tariff which does not cover its costs. The second contested decision is therefore said to contain a clear contradiction in reasoning, which further highlights the Commission’s obligation to examine the substance of the question of whether the tariff in question constituted State aid.

122 The Commission, supported by the intervener, contends that the majority of the applicant’s arguments seek to call into question the merits of the reasoning set out in the second contested decision and are therefore ineffective and must be rejected. According to the Commission, the applicant misinterprets the Alcoa decision, in which it did not adopt the method of ‘time-weighted average prices’ as a generally applicable method for determining the market price for the supply of electricity. It submits that, even though it was not required to make the reasoning set out in paragraphs 23 to 49 of the second contested decision compatible with the Alcoa decision, that is the case here. The applicant’s arguments seeking to challenge, inter alia, the clear and objective nature of the parameters in question does not relate to a failure to state reasons but expresses its disagreement with the reasons for the second contested decision. In any event, the statement of reasons for that decision has enabled the applicant to challenge the merits of the decision and the General Court to exercise its power of review. It states that, in paragraphs 26 to 38 of the second contested decision, the reasons why the applicant’s decision to refer the dispute to arbitration was rational for a private investor are set out at length.

(2) Summary of the main arguments of the parties in the context of the fourth plea in law and the first and second parts of the fifth plea in law

123 By the fourth plea, the applicant accuses the Commission of having erred in law in the interpretation and application of the principle of the prudent private investor and in the interpretation of Articles 107(1) and 108(2) TFEU, in addition to manifest errors of assessment of the facts by concluding that the tariff in question, as determined by the arbitration award, was the ‘logical consequence of properly defined parameters in the Arbitration Agreement’.

124 According to the applicant, in essence, neither paragraph 42 of the second contested decision nor the arbitration agreement or Decisions No 692/2011 and No 798/2011 of the RAE specify ‘clear and objective parameters’ limiting the arbitrators’ discretion, or information making it possible to determine either the characteristics of the intervener’s consumption, including the method for calculating the supply costs borne by it as far as those characteristics are concerned, or its costs and high and low tariff hours, and even less so a calculation of all the elements constituting the total actual costs incurred by it in connection with that supply, in order to be able to conclude that the tariff in question was the ‘logical consequence’ of those characteristics. It claims, in particular, that the Commission does not explain why that tariff could result from the ‘basic principles for pricing’ since the method and data used to calculate it go beyond the framework of Decision No 692/2011 which takes into account only the costs of electricity production from lignite, which are calculated incorrectly, without including the costs resulting from the supply of electricity on the mandatory wholesale market. It states that it submitted to the Commission the calculation of the tariff resulting from its actual costs, namely 72.42, 80.55 and 77.33 EUR/MWh for the years 2011, 2012 and 2013 respectively. Similarly, for those years, a calculation made either according to the method followed by the majority of the arbitration tribunal, namely on the basis of the costs of production from lignite (62.06, 61.74 and 71.37 EUR/MWh respectively), or according to the method of the time-weighted average price from the mandatory wholesale market (69.10, 72.77 and 75.13 EUR/MWh respectively), which it considers to be the most appropriate, would result in significantly higher tariffs if the correct information on its costs was used.

125 The applicant concludes from this that the Commission committed an error of law and a manifest error of assessment and, therefore, ought to have encountered serious difficulties in its evaluation and initiated the formal investigation procedure under Article 108(2) TFEU.

126 In the first and second parts of the fifth plea in law, the applicant complains, in essence, that the Commission misapplied the private investor test by failing to assume the role of the arbitration tribunal and carry out complex economic assessments for the purposes of applying that test and ascertaining whether the tariff in question corresponded to normal market conditions.

127 According to the applicant, the Commission committed a ‘manifest’ error of law in the interpretation and application of Articles 107 and 108 TFEU by taking the view that it did not have to engage in complex economic assessments in order to determine whether the tariff in question involved the granting of State aid. It considers that the Commission was wrong to take the view that it did not have to verify whether that tariff was ‘in line with market conditions’, in particular whether it covered its costs and, for the purposes of that assessment, it could not take the place of the arbitration tribunal.

128 The Commission is said to have committed a ‘manifest’ error of law by taking the view that it could not ‘substitute itself a posteriori’, like a court of last instance, for the assessment of the arbitration tribunal with regard to the calculation of the tariff in question. In the second contested decision, the Commission acknowledged that the arbitration tribunal was a judicial authority, but did not repeat the incorrect assertion made in the contested letter that the arbitration award was not attributable to the Greek State. That assessment is said to be confirmed, inter alia, by the fact that the arbitration tribunal at the RAE, under Article 37 of Law No 4001/2011, must be classified as a State court for the purposes of Article 267 TFEU. That error is said to be all the more manifest in the light of the other possible means of redress, namely either recourse to the ordinary courts or attempting to reach an amicable settlement. The applicant submits that, in each of those cases, the Commission was not able to confine itself to examining the question as to whether the applicant had acted as a private investor by choosing one of those means of redress, but should have examined the outcome of the procedure chosen. Consequently, it considers that the Commission should also have experienced serious difficulties in respect of the question as to whether the tariff in question covered its costs at the very least and was in line with market conditions.

129 With regard to the fourth plea in law, the Commission, supported by the intervener, contends, in essence, that it rightly found that the arbitration agreement contained clear and objective parameters (paragraphs 20 to 22 and 42 of the second contested decision). It disputes that the test of the prudent private investor can be met only if the parameters of the arbitration agreement were established to such a point that the appropriate tariff automatically follows from it. Had that been the case, the applicant and the intervener would have had no reason to refer the dispute to arbitration, rather they would have been able to agree directly on that tariff. Moreover, the Commission considers that it is perfectly logical and foreseeable that matters referred to arbitration are interpreted differently. The second contested decision therefore rightly concluded that, in the arbitration agreement, the applicant had accepted clear and objective parameters for determining the tariff to be paid in the same way as a private investor would have done and that the logical consequence of those parameters was the fixing of the tariff in question by the arbitration award. In view of the long-standing dispute between the applicant and the intervener which led to arbitration on the basis of those parameters, the Commission therefore considers that it would have been called upon to assess whether the applicant had acted as a prudent private investor, or even as a private vendor or creditor (paragraphs 34 and 36 to 38 of the second contested decision), in order to conclude that no advantage was granted to the intervener on account of the fact that the tariff in question was consistent with normal market conditions.

130 The Commission states that the applicant merely asked that it recalculate the tariff in question on the basis of information and methods which it itself considers to be correct, which renders the private investor test nugatory. Since the applicant voluntarily agreed, in the same way as a private investor, to refer the dispute to arbitration and signed the arbitration agreement containing the parameters in question, the outcome of that arbitration, namely the tariff in question, can only be in line with market conditions as it follows logically from the parameters of the arbitration agreement. In reality, the applicant is not asking for State aid law to be applied, but for the case brought before the arbitration tribunal to be re-examined, even though it was unsuccessful in the same way as a private investor in the same situation. The Commission therefore maintains that it correctly applied the prudent private investor test and Article 107(1) and Article 108(2) TFEU by taking the view that the outcome of the arbitration and therefore the tariff in question was in line with market conditions as the logical consequence of the clear and objective parameters of the arbitration agreement.

131 The intervener states, in essence, that the arbitration agreement is the result of the applicant’s free will, following lengthy negotiations with the intervener, and was approved by the applicant’s legal department, Board of Directors and general meeting, and therefore its complaints are incorrect and contrary to the general principle of law that none may rely to their advantage on their own omission or illegality (nemo auditur propriam turpitudinem allegans). It states that that agreement contains clear and objective parameters which reasonably define the scope of the arbitration tribunal’s power and the guidelines on which the arbitration award was to be based and refers to Decision No 692/2011 of the RAE which sets out, in a comprehensive, exhaustive and binding manner, the basic principles for pricing, without the applicant having brought an action against it before the Greek courts. It submits that the content of that decision was approved by the Commission and the Hellenic Republic as the basis for setting the applicable tariffs under the conditions of the liberalised electricity market and was incorporated into the Electricity Supply Code on the basis of which the applicant undertook, with the EEA, to negotiate with it. Moreover, the intervener states that Decision No 798/2011 of the RAE is an ad hoc decision on the draft electricity supply contract between the applicant and itself containing detailed instructions relating to the conditions authorised in such a contract. Lastly, it notes that, in accordance with Decision No 692/2011, it and the applicant agreed that the conditions for the supply of electricity had to correspond to its consumption profile and cover at least the costs borne by the applicant. It concludes from this that the arbitration agreement was sufficiently clear and objective to define the mandatory parameters for setting a reasonable price and supply conditions which any prudent entrepreneur, in his or her capacity as a seller or buyer of electricity, would have required in order to ensure a fair assessment by the arbitration tribunal. In particular, the applicant cannot claim that the tariff in question was lower than its costs, since it failed to present its cost elements before the arbitration tribunal, in its complaints and in the course of the proceedings. It states that, in any event, the tariff in question was, admittedly, lower than that requested by the applicant, but also higher than that requested by the intervener, and therefore both parties were on an equal footing. That is corroborated by the fact that, under the supply contract signed for the period starting on 1 July 2016, the applicant accepted an even lower tariff than that fixed by the arbitration award, namely at a rate of 32 EUR/MWh.

132 With regard to the first and second parts of the fifth plea in law, the Commission submits, in essence, that it did not take the view, in the second contested decision, that it did not have to engage in complex economic assessments.

133 According to the Commission, the rule pursuant to which it had to assess whether there was an economic advantage was the prudent private investor test. Since the applicant agreed to refer the dispute to arbitration in the same way as a private investor would have done in the circumstances of the present case, no advantage has been granted to the intervener. In such a case, the outcome of the arbitration, namely the tariff in question, would have been the same for the intervener, even if a private investor had acted in the applicant’s place, and would necessarily have been obtained under normal market conditions. In the light of its arguments referred to in paragraph 130 above, the Commission considers that it rightly found, first, in paragraph 44 of the second contested decision, that it was not necessary to determine whether the tariff in question was in line with market conditions in order to conclude that the intervener had not received an advantage and, secondly, in paragraph 45 of that decision, that it did not need to enter into every detail of the calculation of that tariff. In its view, the fact that the applicant behaved like a private investor vis-à-vis the intervener has no bearing on the question whether the arbitration tribunal fixed the tariff in question on the basis of information and methods which the applicant considers to be correct, since it may disagree with the arbitration award, like any other private investor who has been unsuccessful. It states that it is contradictory for the applicant to argue that a tariff was ‘imposed’ on it by the arbitration award, even though it signed the arbitration agreement which forms the basis of its free will, as a private contractor.

134 The Commission considers that the application of the private investor test does not presuppose that the applicant has decided to refer the dispute to arbitration on the basis of a prior economic study comparing the economic advantage associated with arbitration to that associated with recourse to other available means to resolve the dispute. Many economic decisions are essentially based on qualitative assessments, such as, in the present case, the need to resolve the dispute quickly, and not on the quantitative assessments of an economic study regarding the future profitability of a company following a capital injection. The private investor test requires such a prior study only for transactions and operations for which prudent private investors would normally request it, which is not the case when recourse is had to arbitration, as in the present case.

135 According to the Commission, in view of the fact that the private investor test was met and, therefore, that no advantage was granted to the intervener, it had no reason to assume the role of the arbitration tribunal a posteriori. By contrast, it considers that, where a decision of an arbitration tribunal or an ordinary State court involves the granting of State aid, it is competent to adopt a negative decision which takes precedence over such a decision. Moreover, the applicant’s arguments regarding the status of the arbitration tribunal and the question whether the arbitration award could be attributed to the Greek State are ineffective since the second contested decision is based only on the lack of an advantage. In any event, the question whether an arbitration tribunal may be regarded as a State tribunal for the purposes of Article 267 TFEU is irrelevant to the existence of such an advantage.

136 According to the Commission, the complaints that it failed to examine the applicable regulatory framework, the organisation and functioning of the market, the importance of the intervener’s consumption profile, the elements of DEI’s costs and the methodology used to determine its costs, and the complaint that the arbitration tribunal incorrectly calculated the tariff in question, are directed exclusively against the arbitration award, without, however, showing that the applicant did not act as a private investor. It states that the second contested decision was, however, based on the application of the private investor test in order to conclude that no advantage was granted. In any event, that decision is said to reflect an examination of the relevant factors in that regard by taking into account, as an illustration, first, the regulatory framework for the electricity market in Greece (paragraphs 18, 20, 21, 29, 33, 37, 40 and 41 and footnotes 5, 6 and 13 to 18), secondly, the intervener’s consumption profile (paragraph 31 and footnote 3), thirdly, the characteristics of the applicant as an electricity producer and supplier (paragraph 30 and footnote 7), and, fourthly, the general circumstances of the dispute between the applicant and the intervener (Sections 2.1 and 2.2 and paragraphs 34 to 38 and 42). However, the applicant did not call into question the assessment of those parameters in the context of the application of the private investor test, but only the tariff in question. The Commission concludes that it has examined the outcome of the arbitration in the light of all the circumstances of the case.

137 The intervener disputes the attempt to convert the Commission and the General Court into bodies with the power to review the arbitration award. The applicant has not established that it did not behave like a private investor, either when it decided to refer the dispute to arbitration under the conditions of the arbitration agreement, or during the arbitration proceedings. Moreover, that award set a much higher tariff than that considered by the intervener to be fair and equitable. Given that, under Greek law, an arbitration award is regarded as equivalent to a judicial decision and is enforceable, it has waived the right to challenge the arbitration award before the competent courts.

(3) Assessment of the General Court

(i) Summary of the relevant considerations set out in the second contested decision

138 With regard to the application of the private operator principle (see judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 45 and the case-law cited) and the existence of an advantage which is the subject of the third, fourth and fifth pleas in law, it is clear from paragraphs 37 to 48 of the second contested decision that the Commission considered that, in the light of the circumstances underlying the dispute between the applicant and the intervener, the fact that it was long-standing and the unlikelihood of the applicant succeeding before ordinary courts within an acceptable period of time, a prudent market economy operator would, in DEI’s position, have opted for arbitration in order to recover at least part of the outstanding debt and would have agreed to the applicable tariff being set by an arbitration tribunal composed of experts whose discretion is limited by parameters comparable to those contained in the arbitration agreement (paragraphs 37 to 39 of that decision).

139 In that regard, the Commission emphasised the expertise and independence of the experts (paragraphs 40 and 41 of the second contested decision) and the predefined clear and objective parameters governing the determination of the tariff in question and limiting the discretion of the arbitrators, that is the pricing principles applicable to high-voltage customers on the Greek energy market, on which the RAE would also have relied if it had had to set tariffs for the supply of electricity on the basis of regulatory measures, and the need to have regard to the intervener’s consumption profile and the applicant’s cost structure (paragraph 42 of that decision).

140 The Commission concluded, in essence, that a prudent private investor in the applicant’s position would have entered into an arbitration agreement with those features, and therefore the criteria of that agreement were in line with market conditions and did not have the effect of granting an advantage to the intervener (paragraph 43 of the second contested decision).

141 In paragraphs 44 to 48 of the second contested decision, the Commission stated that, in those circumstances, it was not necessary to determine whether the precise level of the tariff resulting from the arbitration award was in line with market conditions. The outcome of the arbitration was said to comply with the private investor test where the parameters agreed for setting that tariff were pre-determined on the basis of objective market-based criteria, with the result that such an investor would have agreed to refer the dispute to arbitration in the circumstances of the present case. Nor was it necessary to make complex economic assessments regarding the precise calculation of the tariff in question by assuming the role of the arbitration tribunal, since that tariff was in line with market conditions as the logical consequence of pre-defined parameters in the arbitration agreement. In that regard, the Commission recalled that the applicant had signed that agreement without calling those parameters into question for being contrary to market conditions. Moreover, it states that account must be taken of the fact that a prudent private investor would not be able to influence the outcome of an arbitration procedure conducted on the basis of those parameters, aside from the possibility of challenging that award before an ordinary court. Furthermore, the tariff in question is still higher than the average electricity tariffs applied to undertakings in the metal sector in Europe in 2013.

142 In the light of the third and fourth pleas in law and the first and second parts of the fifth plea, it is necessary to assess whether the Commission was justified, first, in confining itself to applying the private operator principle to the applicant’s decision to refer the dispute to arbitration by signing the arbitration agreement and, secondly, in refraining from establishing whether, by fixing the tariff in question, the arbitration award involved the granting of an advantage to the intervener which did not correspond to normal market conditions, without giving rise to any doubts or serious difficulties in assessing the existence of State aid within the meaning of Article 107(1) TFEU. To that end, it is necessary to recall, first, the division of powers and obligations between the Commission and the national courts in that regard, in view of the possible need to treat the arbitration tribunal in the same way as a national court.

(ii) The division of powers and obligations between the Commission and the national courts

143 The implementation of the State aid control system is a matter, first, for the Commission and, second, for the national courts, each of which fulfil complementary but distinct roles. Although national courts do not have jurisdiction to rule on the compatibility of State aid with the internal market, as that supervision falls within the exclusive competence of the Commission, they ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU. For this purpose, proceedings may be commenced before national courts requiring those courts to interpret and apply the concept of ‘State aid’, contained in Article 107(1) TFEU, in particular in order to determine whether a measure introduced without observance of the preliminary examination procedure provided for in Article 108(3) TFEU ought to have been subject to this procedure (see, to that effect, judgments of 15 September 2016, PGE, C‑574/14, EU:C:2016:686, paragraphs 30 to 32; of 26 October 2016, DEI and Commission v Alouminion tis Ellados, C‑590/14 P, EU:C:2016:797, paragraphs 95 to 98 and the case-law cited; and of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraphs 54 and 55 and the case-law cited).

144 If the national courts reach the conclusion that the measure at issue should have in fact been notified to the Commission, they must ascertain whether the Member State concerned has fulfilled that obligation and, if that is not the case, declare that measure unlawful. It is for those courts to draw all the necessary inferences from the infringement of Article 108(3) TFEU, in accordance with domestic law, with regard both to the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision (see, to that effect, judgment of 26 October 2016, DEI and Commission v Alouminion tis Ellados, C‑590/14 P, EU:C:2016:797, paragraphs 99 and 100 and the case-law cited).

145 Moreover, the application of the State aid rules is based on a duty of sincere cooperation between national courts, on the one hand, and the Commission and the EU Courts, on the other, in the context of which each acts on the basis of the role assigned to it by the FEU Treaty. In the context of that cooperation, national courts must take all the measures, whether general or specific, necessary to ensure fulfilment of the obligations under EU law and must refrain from those that may jeopardise the attainment of the objectives of the Treaty, as follows from Article 4(3) TEU. Accordingly, national courts must, in particular,