Case T-417/16: Action brought on 28 July 2016 — Achemos Grupė and Achema v Commission
Date: 2016-07-28
Institutions: General Court
Subjects: Lithuania, State aid, award of contract, control of State aid, equal treatment, gas industry, gas pipeline, invitation to tender, right to justice, services of general interest








C_2016371EN.01001401.xml










10.10.2016   


EN


Official Journal of the European Union


C 371/14





Action brought on 28 July 2016 — Achemos Grupė and Achema v Commission
(Case T-417/16)
(2016/C 371/16)
Language of the case: English

Parties


Applicants: Achemos Grupė UAB (Vilnius, Lithuania) and Achema AB (Jonava, Lithuania) (represented by: R. Martens and C. Maczkovics, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






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annul the decision of the Commission of 20 November 2013 in case State aid SA.36740 (2013/NN) — Lithuania, Aid to Klaipedos Nafta — LNG Terminal, Brussels, C(2013) 7884 final, OJ C 161, 2016, p. 1; and










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order the Commission to pay all costs.





Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.






1.


First plea in law, alleging breach of procedural rules contained in Article 108(2) TFEU, in Article 4(4) of Regulation 2015/1589 (1) and of good administration, because, despite the serious difficulties involved in assessing the compatibility with the internal market of the State aid measures at issue, the Commission solely relied on a preliminary examination of the State aid measures, whereas, in view of those serious difficulties, the Commission was under an obligation to initiate the procedure under Article 108(2) TFEU and under Article 6 of Regulation 2015/1589.










2.


Second plea in law, alleging breach of Article 107(3)(c) TFEU, because the Commission does not apply correctly the criteria of assessment as set out in Recital 135 of the contested decision, whereas,






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first part, as regards the appropriateness and necessity of the measures, the Commission should have assessed those measures concretely and examined whether there were other, better-targeted instruments;










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second part, the Commission should have concluded to the lack of incentive effect since KN is legally obliged to develop the LNG Terminal;










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third part, the Commission should have assessed whether the size of the subsidised LNG Terminal was proportionate to attain the objective pursued and did not create overcapacity.














3.


Third plea in law, alleging a violation of Article 106(2) TFEU, of the SGEI Framework (2) and of the general principles such as equal treatment and the protection of legitimate expectations, as well as of the procurement rules contained in Directive 2004/18 (3), and of Article 14 of Directive 2004/18, because the Commission wrongfully applied the SGEI Framework, in accepting a direct entrustment of KN for a period of 55 years with a profit corresponding to the project internal rate of return, whereas,






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first part, the entrustment period should have been justified by reference to objective criteria without exceeding the period required for the (financial) depreciation of the most significant assets required to provide the SGEI;










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second part, appointment of KN could not have been exempted from procurement rules on grounds of the protection of essential (security) interests within the meaning of Article 14 of Directive 2004/18 since alternative means, that are less restrictive in nature then a direct award, are available in in the present case;










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third part, given the level of risk borne by KN, the latter's profit should have been limited to the relevant swap rate (as possibly re-evaluated to take maturity into account) plus a premium of 100 basis points.










(1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 2015, p. 9)

(2)  Communication from the Commission — European Union framework for State aid in the form of public service compensation (2011), (OJ 2012, C 8, p. 15) (hereafter, the ‘SGEI Framework’)

(3)  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 L 134, 2004, p. 114)