Case C-11/22, Est Wind Power: Judgment of the Court (First Chamber) of 12 October 2023 (request for a preliminary ruling from the Tallinna Halduskohus — Estonia) — Est Wind Power OÜ v Elering AS (Reference for a preliminary ruling — Aid granted by Member States — Renewable energy subsidy — Construction of a wind farm — Communication from the Commission entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’ — Paragraph 19(44) and footnote 66 — Concepts of ‘start of works’, ‘construction works on the investment’, ‘other commitment that makes the investment irreversible’ and ‘necessary state authorisation for constructing the project’ — Type and intensity of the scrutiny that must be conducted by the competent national authority)
Date: 2023-10-12
Institutions: Court of Justice
Subjects: State aid, building, building permit, control of State aid, investment project, renewable energy, terms for aid, wind energy








C_202300931EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/931


27.11.2023





Judgment of the Court (First Chamber) of 12 October 2023 (request for a preliminary ruling from the Tallinna Halduskohus — Estonia) — Est Wind Power OÜ v Elering AS
(Case C-11/22, (1) Est Wind Power)
(Reference for a preliminary ruling - Aid granted by Member States - Renewable energy subsidy - Construction of a wind farm - Communication from the Commission entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’ - Paragraph 19(44) and footnote 66 - Concepts of ‘start of works’, ‘construction works on the investment’, ‘other commitment that makes the investment irreversible’ and ‘necessary state authorisation for constructing the project’ - Type and intensity of the scrutiny that must be conducted by the competent national authority)
(C/2023/931)
Language of the case: Estonian

Referring court

Tallinna Halduskohus

Parties to the main proceedings


Applicant: Est Wind Power OÜ

Defendant: Elering AS,

Operative part of the judgment







1.


Paragraph 19(44) of the Communication from the Commission entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’, read in conjunction with recital 42 of Commission Decision C(2017) 8456 final of 6 December 2017 concerning amendments to the Estonian support scheme for electricity produced from renewable sources and efficient cogeneration (State aid SA.47354 (2017/NN),
must be interpreted as meaning that the concept of ‘start of works’ refers, first, to the start of the construction works on the installation of an investment project allowing the production of renewable energy and, second, to any other commitment which, having regard to its nature and its cost, brought the investment project concerned to a ‘state of development’ on 1 January 2017 such that it appeared that that project would very likely be completed.










2.


Paragraph 19(44) of the Communication from the Commission entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’, read in conjunction with recitals 42 to 44 of Decision C(2017) 8456,
must be interpreted as meaning that the competent national authority is required, for the purposes of determining the ‘start of works’ within the meaning of paragraph 19(44), to carry out, on a case-by-case basis, an analysis of the state of development of the investment project concerned and of the likelihood that it will be completed, which cannot be limited to a purely factual or formal assessment and may, depending on the case, require an in-depth economic analysis.










3.


Paragraph 19(44) of the Communication from the Commission entitled ‘Guidelines on State aid for environmental protection and energy 2014-2020’, read in conjunction with recital 42 of Decision C(2017) 8456,
must be interpreted as meaning that:






—


the concept of ‘start of works’ within the meaning of paragraph 19(44) necessarily implies that the developer has the right to use the land on which the investment project concerned is to be constructed and the necessary state authorisation for constructing that project;










—


the concept of ‘necessary state authorisation for constructing the project’, referred to in recital 42, must be interpreted having regard to national law and to the effect that it permits, as final state authorisation, the construction works on the investment project concerned to be carried out;










—


the existence of ongoing proceedings on 1 January 2017, relating to a refusal to grant such authorisation and preventing the project from continuing, must not be taken into consideration when assessing the state of development of that project on that date.










(1)  
            OJ C 119, 14.3.2022.


ELI: http://data.europa.eu/eli/C/2023/931/oj
ISSN 1977-091X (electronic edition)