JUDGMENT OF THE COURT (Ninth Chamber)

29 April 2021 ( )

(Appeal – State aid – Decision not to raise any objections – Article 108 TFUE – Rights of the interested parties – Principle of sound administration – Diligent and impartial investigation – Scope of the review by the General Court – Obligation to state reasons)

In Case C‑847/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 November 2019,

Achemos Grupė UAB, established in Vilnius (Lithuania),

Achema AB, established in Jonava (Lithuania), represented by R. Martens, avocat, and V. Ostrovskis, advokatas,

applicants,

the other parties to the proceedings being:

European Commission, represented initially by É. Gippini Fournier, N. Kuplewatzky and L. Armati, acting as Agents, and subsequently by E. Gippini Fournier, A. Bouchagiar and L. Armati, acting as Agents,

defendant at first instance,

Republic of Lithuania, represented by R. Dzikovič and K. Dieninis, acting as Agents,

Klaipėdos Nafta AB, established in Klaipėda (Lithuania), represented by K. Kačerauskas, and V. Vaitkutė Pavan, advokatai,

interveners at first instance,

THE COURT (Ninth Chamber),

composed of N. Piçarra, President of the Chamber, M. Vilaras (Rapporteur), President of the Fourth Chamber, and D. Šváby, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeal, Achemos Grupė UAB and Achema AB seek to have set aside the judgment of the General Court of the European Union of 12 September 2019, Achemos Grupė and Achema v Commission (T‑417/16, not published, EU:T:2019:597, ‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission Decision C(2013) 7884 final of 20 November 2013, by which State aid SA.36740 (2013/N), granted by the Republic of Lithuania to Klaipėdos Nafta AB, was declared compatible with the internal market (‘the decision at issue’).

2 In addition, by its cross-appeal, the European Commission asks the Court to set aside the judgment under appeal on the ground that the General Court put an end to the procedure initiated in accordance with the plea of inadmissibility which it had raised pursuant to Article 130(1) of the Rules of Procedure of the General Court.

Legal context

Regulation (EC) No 659/1999

3 Article 1(h) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), as amended by Council Regulation (EU) No 734/2013 of 22 July 2013 (OJ 2013 L 204, p. 15) (‘Regulation No 659/1999’), defines the concept of ‘interested party’ as follows:

‘Any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.’

4 Under Article 4(1) to (4) of that regulation:

‘1. The Commission shall examine the notification as soon as it is received. Without prejudice to Article 8, the Commission shall take a decision pursuant to paragraphs 2, 3 or 4.

2. Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision.

3. Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the [internal] market of a notified measure, in so far as it falls within the scope of [Article 107(1) TFEU], it shall decide that the measure is compatible with the [internal] market … The decision shall specify which exception under the Treaty has been applied.

4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the [internal] market of a notified measure, it shall decide to initiate proceedings pursuant to Article [108(2) TFEU].’

5 Article 5 of that regulation, entitled ‘Request for information made to the notifying Member State’, provides in paragraph 1:

‘Where the Commission considers that information provided by the Member State concerned with regard to a measure notified pursuant to Article 2 is incomplete, it shall request all necessary additional information. Where a Member State responds to such a request, the Commission shall inform the Member State of the receipt of the response.’

6 Article 10 of that regulation, entitled ‘Examination, request for information and information injunction’, provides:

‘1. Without prejudice to Article 20, the Commission may on its own initiative examine information regarding alleged unlawful aid from whatever source.

The Commission shall examine without undue delay any complaint submitted by any interested party in accordance with Article 20(2) and shall ensure that the Member State concerned is kept fully and regularly informed of the progress and outcome of the examination.

2. If necessary, the Commission shall request information from the Member State concerned. Article 2(2) and Article 5(1) and (2) shall apply mutatis mutandis.

After the initiation of the formal investigation procedure, the Commission may also request information from any other Member State, from an undertaking, or association of undertakings in accordance with Article 6a and 6b, which shall apply mutatis mutandis.’

7 Under Article 20 of Regulation No 659/1999, entitled ‘Rights of interested parties’:

‘1. Any interested party may submit comments pursuant to Article 6 following a Commission decision to initiate the formal investigation procedure. Any interested party which has submitted such comments and any beneficiary of individual aid shall be sent a copy of the decision taken by the Commission pursuant to Article 7.

…’

8 In accordance with Articles 35 and 36 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), that regulation repealed Regulation No 659/1999 and entered into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Directive 2004/18/EC

9 Article 14 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), entitled ‘Secret contracts and contracts requiring special security measures’, provides:

‘This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State so requires.’

Background to the dispute and the contested decision

10 The background to the dispute, which is set out in paragraphs 1 to 11 of the judgment under appeal, may be summarised as follows.

11 Klaipėdos Nafta, in which the Lithuanian State holds 72.3% of the share capital, was made responsible, by a decree adopted on 21 July 2010, for developing a plan for the construction of a liquefied natural gas terminal (‘the LNG terminal’) and for constructing that terminal.

12 That decree forms part of the national energy strategy for the period 2008-2012, approved by the Parliament of the Republic of Lithuania by a resolution of 18 January 2007, which highlighted the need to look into the possibility of building an LNG in order to ensure an alternative supply of natural gas in that Member State and thereby guarantee the security of energy supply at national level.

13 On 22 June 2012, the LNG Terminal Law (‘the Law of 22 June 2012’) was passed, according to which the LNG terminal and its connection to the gas transmission system are to be recognised as facilities of strategic importance to national security, while the LNG terminal operator is to be recognised as a company of strategic importance to national security. According to Article 4(1) of that law, the LNG terminal project must be implemented by a company in which the State holds shares conferring at least 2/3 of the voting rights.

14 The regulatory framework established by the Republic of Lithuania made provision for three main components for financing the LNG terminal:

– First, Article 5(2) of the Law of 22 June 2012 creates a special levy for all users of the natural gas transmission system (‘the LNG supplement’). That supplement is collected by the transmission system operator and transferred to Klaipėdos Nafta once approved by the national regulatory authority in order to finance part of the costs of building the LNG terminal and the related infrastructure which could not be financed by other sources as well as the fixed costs of operating that terminal. Provision is made to collect the LNG supplement for a period of 55 years from the launch of the LNG terminal.

– Secondly, Article 11 of the Law of 22 June 2012 imposes a requirement for certain companies supplying heat and electricity to purchase a minimal mandatory quota of gas imported through the LNG terminal (‘the purchase obligation’). All other consumers in Lithuania are free to choose or purchase natural gas (from the designated supplier, from other suppliers, at the natural gas exchange or imported directly through the LNG terminal). The purchase obligation will continue for 10 years and that period may be shortened if the development and integration of the Lithuanian natural gas market are sufficient to ensure a minimal level of purchases making it possible for the LNG terminal to work on a steady mode.

– Thirdly, the financing of the construction of the LNG terminal infrastructure is covered by a State guarantee of 100% of the amount of loans granted by the European Investment Bank (EIB) and other loan providers for a total amount of approximately EUR 116 million against payment of a one-off fee of 0.1% on the amount of the loan concerned (‘the State guarantee’).

15 On 28 October 2013, the Republic of Lithuania notified the Commission of the measures referred to in the preceding paragraph. It submitted additional information on 29 October 2013.

16 On 20 November 2013, the Commission adopted the contested decision.

17 In that decision, the Commission, in the first place, considered that the three measures described in paragraph 14 above constituted State aid within the meaning of Article 107(1) TFEU.

18 In the second place, with regard to the legality of the aid measures, the Commission stated that the State guarantee, the purchase obligation and the LNG supplement, in so far as the latter was meant to cover the fixed costs of operating the LNG terminal, had still not created enforceable rights when the decision at issue was adopted, so that those measures were lawful. On the other hand, since the LNG supplement had already been in force since 2013, in that it was meant to cover the investment costs which could not be covered by other sources, the Commission decided that that part of the aid measure in question was implemented in breach of Article 108(3) TFEU.

19 In the third place, with regard to the compatibility with the internal market of the three aid measures described in paragraph 14 above, the Commission considered, on the basis of Article 107(3)(c) TFEU, that the investment aid measures, that is to say, the State guarantee and the LNG supplement, in so far as the latter covered investment costs, were compatible with the internal market. As regards the operating aid measures, that is to say the purchase obligation and the LNG supplement, in so far as the latter covered the fixed costs of operating the LNG terminal, the Commission concluded that they complied with its communication on the European Union framework for State aid in the form of public service compensation (2011) (OJ 2012 C 8, p. 15) and therefore were compatible with the internal market, in accordance with Article 106(2) TFEU.

The procedure before the General Court and the judgment under appeal

20 By application lodged at the Registry of the General Court on 28 July 2016, Achemos Grupė and Achema brought an action seeking annulment of the contested decision.

21 In support of that action, they raised three pleas in law alleging, first, infringement of the procedural rules in Article 108(2) TFEU and in Article 4(4) of Regulation No 659/1999, and of the rules of sound administration, second, infringement of Article 107(3)(c) TFEU and, third, infringement of Article 106(2) TFEU, of the EU framework for State aid in the form of public service compensation referred to in paragraph 19 above, of the general principles of equal treatment and of protection of legitimate expectations, and of the public procurement rules laid down in Directive 2004/18.

22 On 28 November 2016, the Commission, by a separate document, lodged a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, claiming that the appellants had neither an interest in bringing proceedings nor standing to bring proceedings against the decision at issue. In addition, Klaipėdos Nafta contended that the action was inadmissible on the ground that it was out of time.

23 First of all, the General Court held in paragraph 33 of the judgment under appeal that, in the circumstances of the case, for reasons of procedural economy, it was appropriate to consider at the outset the merits of the action, without first ruling on the plea of inadmissibility raised by the Commission, since the action was, in any event, unfounded.

24 Next, after examining and rejecting the pleas raised by the appellants, the General Court dismissed the action in its entirety and ordered the appellants to bear their own costs and to pay those incurred by the Commission.

Forms of order sought by the parties before the Court of Justice

25 By their appeal, the appellants claim that the Court should:

– set aside points 1 and 2 of the operative part of the judgment under appeal;

– refer the case back to the General Court or, in the alternative, give judgment itself on the action at first instance and annul the decision at issue in its entirety; and

– order the Commission to pay all costs.

26 The Commission contends that the Court should:

– dismiss the main appeal and order the appellants to pay the costs; and

– in the alternative, should the Court consider the main appeal to be well founded, refer the case back to the General Court.

27 The Republic of Lithuania and Klaipėdos Nafta contend that the Court should dismiss the main appeal in its entirety.

28 By its cross-appeal, the Commission claims that the Court should:

– if it is minded to uphold the main appeal,

– set aside the decision set out in paragraph 33 of the judgment under appeal to terminate the procedure initiated pursuant to Article 130(1) of the Rules of Procedure of the General Court concerning the inadmissibility of the action;

– declare the action inadmissible; and

– order the appellants to pay the costs relating to the proceedings before the General Court and the Court of Justice;

– in the event that it dismisses the main appeal,

– declare the cross-appeal to be devoid of purpose, and

– order the appellants to pay the costs relating to the proceedings before the General Court and the Court of Justice.

29 The appellants claim that the Court should:

– dismiss the cross-appeal as inadmissible;

– or, in the event that the cross-appeal is upheld, refer the case back to the General Court for it to rule on the plea of inadmissibility or, in the alternative, dismiss the case in its entirety as unfounded; and

– order the Commission to pay the costs.

30 The Republic of Lithuania and Klaipėdos Nafta argue that, should the main appeal be upheld, the cross-appeal should be upheld.

The main appeal

31 The appellants put forward three grounds in support of their appeal, alleging, first, infringement of Article 263 TFEU, read in conjunction with Article 256(1) TFEU, second, infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of the right to sound administration and of Article 12 of Regulation 2015/1589, read in conjunction with Article 5 of that regulation, and, third, infringement of the obligation to state reasons.

32 Although the appellants refer to Regulation 2015/1589, it should be noted at the outset that, in accordance with Articles 35 and 36 of that regulation, it does not apply ratione temporis in the present case, since the decision at issue was adopted before that regulation entered into force. However, the references made by the appellants to Regulation 2015/1589 must be understood as being, in essence, references to the equivalent provisions of Regulation No 659/1999, which was repealed and replaced by Regulation 2015/1589.

The first and second grounds of appeal

Arguments of the parties

33 By their ground of appeal alleging infringement of Article 263 TFEU, read in conjunction with Article 256(1) TFEU, the appellants claim that the General Court committed an error of law by failing to assess the information on which the Commission relied to adopt the decision at issue, whereas an adequate review of the legality of the Commission’s decision by the General Court includes a review whether the information relied on by the Commission is factually accurate, reliable and consistent. In particular, they criticise paragraph 57 of the judgment under appeal in which the General Court found that ‘the Commission could validly consider that it had at its disposal, when it adopted the [decision at issue], the most complete and reliable information possible for that purpose from different sources independent from one another pursuing different interests’.

34 Relying on the judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39), the appellants submit that the review of legality of a Commission decision by the General Court must include inter alia a review whether the information relied on by the Commission is factually accurate, reliable and consistent. In that regard, they submit that the General Court must review the legality of the Commission’s decision by taking into consideration not only information in the Commission’s possession but also information available to the Commission at the time when it adopted its decision, and in particular information in the public domain that was without doubt available to the Commission at that time. However, the General Court did not carry out such a review and failed to take into account the information available to the Commission when it adopted the contested decision. The Commission started from the premiss that there was no LNG terminal project in Lithuania other than the subsidised LNG terminal project, whereas, according to the appellants, there was clear information in the public domain, that was without doubt available to the Commission at the time it adopted the decision at issue, proving that the appellants had their own LNG terminal project. Consequently, in their view, if the General Court had carried out an adequate review of the decision at issue, it would have taken that information into consideration and would have established that the information on which the Commission had relied was incorrect and that the preliminary examination procedure for the aid measures was flawed.

35 By their second ground of appeal, the appellants allege, in essence, an infringement of Article 41 of the Charter, of the right to sound administration and of Article 10 of Regulation No 659/1999, read in conjunction with Article 5 of that regulation. In particular, they submit that, by criticising them in paragraphs 57 to 60 of the judgment under appeal for not having drawn the Commission’s attention to the existence of their plan to construct an LNG terminal during the preliminary examination procedure, the General Court erred in law.

36 In their view, the obligation on the part of the Commission to conduct the examination procedure diligently and impartially may make it necessary for the Commission to examine matters which have not been expressly relied on by the complainants. Moreover, EU law does not require applicants to provide the Commission with information during the preliminary examination stage. That is confirmed by recital 8 and Article 20(1) of Regulation No 659/1999, which provide that it is only after the formal investigation stage has been initiated that the interested parties may submit their observations. The appellants also rely on the judgment of 16 March 2016, Frucona Košice v Commission (T‑103/14, EU:T:2016:152), which, in their view, was misapplied by the General Court in paragraph 60 of the judgment under appeal.

37 According to the appellants, the approach adopted by the General Court would thus lead to a new obligation to provide information being imposed on the interested parties during the preliminary stage, while seriously undermining the Commission’s duty to carry out research in that context. Furthermore, imposing such an obligation on interested parties to provide information would discourage them from contacting the Commission during the preliminary examination stage, which runs counter to the objective of a diligent and impartial investigation.

38 The Commission, Klaipėdos Nafta and the Republic of Lithuania dispute those arguments.

Findings of the Court

39 The first two grounds of appeal relied on by the appellants, which it is appropriate to examine together, are directed, in essence, against the General Court’s rejection of the first plea in law in the action at first instance, alleging infringement of the procedural rules in Article 108(2) TFEU and in Article 4(4) of Regulation No 659/1999, and of the rules of sound administration.

40 It should be borne in mind that the lawfulness of a decision not to raise objections, based on Article 4(3) of Regulation No 659/1999, depends on whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination of the notified measure should objectively have raised doubts as to the compatibility of that measure with the internal market (judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 80 and the case-law cited), 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.

41 It should also be borne in mind that the lawfulness of a decision concerning State aid falls to be assessed by the EU judicature, not only in the light of the information available to the Commission at the time when the decision was adopted, but also information which could have been available to the Commission (see, to that effect, judgments of 10 July 1986, Belgium v Commission, 234/84, EU:C:1986:302, paragraph 16; of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 54; and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 70).

42 However, the information ‘available’ to the Commission includes that which seemed relevant to the assessment to be carried out in accordance with the case-law referred to in paragraph 40 above and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).

43 The Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90; of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217 paragraph 63; and of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 67).

44 In addition, if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties (judgment of 12 October 2016, Land Hessen v Pollmeier Massivholz, C‑242/15 P, not published, EU:C:2016:765, paragraph 38).

45 In the first place, as regards the appellants’ arguments put forward in their second ground of appeal, according to which, in paragraphs 58 to 60 of the judgment under appeal, the General Court imposed a new and independent obligation on the interested parties to inform the Commission of any information in their possession at the preliminary examination stage, even though they do not, in principle, have any right or, a fortiori, any obligation to participate in that stage, it must be stated that that line of argument is based on a misreading of the judgment under appeal.

46 It should be pointed out that, in those paragraphs, the General Court merely found, in essence, that, in so far as, first, the appellants had readily contacted the Commission concerning the aid measures at issue, without mentioning the existence of their construction project for an LNG terminal and, second, that project had also not been mentioned in the complaint lodged by the Lithuanian Gas Association, of which Achema is a member, the Commission cannot be criticised for not taking that project into consideration, since it was unaware of its existence.

47 The General Court therefore held, in paragraph 60 of the judgment under appeal, that ‘in those circumstances’, the Commission could not be criticised for not taking into account any matters of fact or of law which could have been submitted to it during the administrative procedure but which had not been submitted. In so doing, it did not impose on the interested parties an obligation to provide the Commission with certain information in their possession at the preliminary examination stage.

48 In the second place, it is also the case that the appellants’ argument, advanced in the first ground of appeal, that the existence of their project to construct an LNG terminal was apparent from information that was in the public domain and which was therefore available to the Commission, could not demonstrate that the General Court erred in law because it did not consider that the Commission was required to take that project into account.

49 Admittedly, it is clear from the case-law of the Court of Justice that, when the existence and legality of State aid is being examined, it may be necessary for the Commission, where necessary, to go beyond a mere examination of the matters of fact and law brought to its knowledge (judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62).

50 However, it is not for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information in the public domain which might be connected with the case before it.

51 In the present case, in paragraphs 54 to 56 of the judgment under appeal, the General Court listed the information available to the Commission for the purposes of drawing up the contested decision.

52 Furthermore, in paragraph 58 of that judgment, the General Court held, in essence, that the appellants could not criticise the Commission for failing to take into consideration the project for the construction of an LNG terminal, given that, although they themselves initiated that project, they did not consider it necessary to bring it to the attention of the Commission, even though they had been in contact with that institution.

53 With regard to those factual considerations, in respect of which the appellants did not claim that they arose from the General Court’s distortion of the facts and evidence, the General Court did not err in law in holding, in paragraph 57 of the judgment under appeal, that the Commission could legitimately consider that it had available to it, when it adopted the decision at issue, the most complete and reliable information possible.

54 Accordingly, the first and second grounds of appeal must be dismissed as unfounded.

The third plea in law

Arguments of the parties

55 By their third ground of appeal, the appellants allege, in essence, an infringement of the obligation to state reasons laid down in the second paragraph of Article 296 TFEU and in Article 41(1) and (2)(c) of the Charter, in that the General Court did not set out clearly and unequivocally the reasons why the LNG terminal project could be exempted from Article 14 of Directive 2004/18 and its implementation could be directly entrusted to Klaipėdos Nafta without a prior call for competitive tendering.

56 In particular, the appellants take issue with paragraphs 138 to 141 of the judgment under appeal, in which the General Court found that none of the alternative measures proposed by them was capable of ensuring the protection of the essential interests of the Member State concerned and, in particular, that none of those measures could guarantee that the entity chosen in a competitive tendering procedure would be free from the influence, now or in the future, of the sole supplier in question. The applicants claim that they had, however, indicated to the General Court that measures less restrictive than a direct award, such as the setting of award criteria, the imposition of duties with possible criminal sanctions, or the inclusion of security requirements in the contract, could have made it possible to prevent the operator of the LNG terminal from having links with the sole gas supplier on the market and would therefore have ensured the protection of the essential interests of the Republic of Lithuania. The General Court did not in any way explain why those alternative measures could not ensure the protection of the essential interests of that Member State, nor could they ensure that the entity chosen in a competitive tendering procedure would be free from the influence of the sole supplier in question.

57 The Commission, the Republic of Lithuania and Klaipėdos Nafta dispute those arguments.

Findings of the Court

58 By their third ground of appeal, alleging an infringement of the obligation to state reasons, the appellants allege that the General Court failed to set out clearly and unequivocally the reasons why the LNG terminal project covered by the aid measures at issue could be exempted from Article 14 of Directive 2004/18 and its implementation could be entrusted directly to Klaipėdos Nafta, without a prior call for competitive tendering.

59 In paragraph 140 of the judgment under appeal, the General Court stated, in that regard, that none of the alternative measures proposed by the appellants, as summarised in paragraph 128 of the judgment under appeal, could ensure protection of the essential interests of the Member State concerned, since those measures could not guarantee that the entity chosen in a competitive tendering procedure would be free from the influence, now or in the future, of the sole gas supplier on the market in Lithuania and that, consequently, the only way of fully guaranteeing the essential interests of the Lithuanian State was for that State to have control over the operator of the LNG terminal.

60 It should be noted that, according to settled case-law, the statement of the reasons on which the judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, judgments of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 24, and of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 80).

61 The obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds of the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 72).

62 It should also be borne in mind that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62; of 30 April 2009, Commission v Italy and Wam, C‑494/06 P, EU:C:2009:272, paragraph 33; and of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 79).

63 It should be noted that, in the present case, although concise, the reasoning set out in paragraphs 138 to 140 of the judgment under appeal is sufficient to enable the parties concerned to know why the LNG terminal project covered by the aid measures at issue could be exempted from Article 14 of Directive 2004/18 and the Court of Justice to exercise its power of review in that regard.

64 In particular, this makes it clear that the General Court considered that if some of the alternative solutions proposed by the appellants were such as to ensure that a tenderer, chosen in a public service contract procedure in accordance with Directive 2004/18 to manage the LNG terminal, would be free from the current influence of the single gas supplier on the market in Lithuania, none of those solutions could rule out the risk of that operator, in the relatively near future, falling under the influence of that supplier.

65 The General Court therefore held that, having regard to the discretion left to the Member States under Article 14 of Directive 2004/18 to decide on the measures deemed necessary for the protection of the essential interests of their security, none of the alternative measures proposed by the appellants in paragraph 128 of the judgment under appeal would have enabled the Lithuanian State to protect itself effectively against such a risk.

66 It follows that, as is required by the case-law of the Court of Justice, the statement of reasons for the judgment under appeal clearly and unequivocally discloses the General Court’s reasoning, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review.

67 Accordingly, the third ground of appeal must be rejected as unfounded and, consequently, the main appeal must be dismissed in its entirety.

The cross-appeal

68 Since the Commission stated that the cross-appeal should be examined only in the event that the main appeal is upheld and since the main appeal must be dismissed, there is no need to examine the cross-appeal.

Costs

69 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

70 Under Article 138(1) of the Rules of Procedure, which applies mutatis mutandis to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

71 Since the Commission has applied for costs and the appellants have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission in respect of the main appeal.

72 Article 142 of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that where a case does not proceed to judgment the costs are to be in the discretion of the Court.

73 In the present case, the appellants and the Commission shall each bear their own costs relating to the cross-appeal.

74 Since the Republic of Lithuania and Klaipėdos Nafta have not applied for costs, they must bear their own costs.

On those grounds, the Court (Ninth Chamber) hereby:

1. Dismisses the main appeal;

2. Declares that there is no need to adjudicate on the cross-appeal;

3. Orders Achemos Grupė UAB and Achema AB to bear their own costs and to pay those incurred by the European Commission in respect of the main appeal;

4. Orders Achemos Grupė UAB, Achema AB and the Commission to bear their own costs in respect of the cross-appeal;

5. Orders the Republic of Lithuania and Klaipėdos Nafta AB to bear their own costs in respect of both the main appeal and the cross-appeal.

Piçarra Vilaras Šváby

Delivered in open court in Luxembourg on 29 April 2021.





A. Calot Escobar N. Piçarra