Case C-446/23, Warmeston: Order of the Court (Sixth Chamber) of 29 May 2024 (request for a preliminary ruling from the Tallinna Halduskohus – Estonia) – Warmeston OÜ v Elering AS (Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – State aid – Renewable energy subsidy – Construction of a combined heat and power installation – Decision C(2017) 8546 final – Amendments to the Estonian support scheme for electricity produced from renewable sources and efficient cogeneration – Recitals 42 and 43 – Concepts of project and start of works – Type and intensity of the scrutiny that must be conducted by the competent national authority)
Date: 2024-05-29
Institutions: Court of Justice
Subjects: Estonia, State aid, control of State aid, electrical energy, energy production, investment project, renewable energy








C_202404944EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/4944


19.8.2024






Order of the Court (Sixth Chamber) of 29 May 2024 (request for a preliminary ruling from the Tallinna Halduskohus – Estonia) – Warmeston OÜ v Elering AS


(Case C-446/23,
                (1)
Warmeston)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - State aid - Renewable energy subsidy - Construction of a combined heat and power installation - Decision C(2017) 8546 final - Amendments to the Estonian support scheme for electricity produced from renewable sources and efficient cogeneration - Recitals 42 and 43 - Concepts of ‘project’ and ‘start of works’ - Type and intensity of the scrutiny that must be conducted by the competent national authority)
(C/2024/4944)
Language of the case: Estonian

Referring court

Tallinna Halduskohus

Parties to the main proceedings


Applicant: Warmeston OÜ

Defendant: Elering AS

Operative part of the order







1.


The concept of ‘project’, within the meaning of 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, and that of ‘start of works’, within the meaning of recital 43 of that decision and of paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’,
must be interpreted as relating solely to the energy-producing installation, regardless of whether that installation forms part of larger investment projects, comprising other installations that may be economically and/or technically linked to that energy-producing installation, which form an integral part of an overall investment project and are likely to make the operation of those installations more profitable.










2.


In the context of recital 42 of Decision C(2017) 8456 final, the concept of ‘start of works’, within the meaning of recital 43 of that decision and paragraph 19(44) of those guidelines, must be interpreted as meaning that, for such a start to be recognised,






—


the Member State concerned is not required to prove that the aid applied for has an incentive effect; the determination to be made by the competent national authority concerns solely whether or not the developer has a legitimate expectation that that aid will be granted;










—


it is necessary to examine, in each case, whether the project was at such a stage of development that it appeared highly likely that it would be successfully completed and whether the project was sufficiently advanced so as to enable the developer to be treated in the same way as an existing producer of renewable energy;










—


account should be taken of the proportion of the total value of the project represented by the investments made, the commitments entered into, the construction work carried out and the expenditure incurred in order to determine, in particular, whether the commitments entered into were sufficiently significant, in terms of their nature and cost, in relation to the total scale of the investment project concerned;










—


it is necessary to evaluate the stage of development of an investment project, where appropriate, in respect of each case coming within that concept, and










—


only the commitments entered into in respect of the investment project relating to the energy-producing installation itself are to be taken into account, to the exclusion of commitments entered into in relation to other installations forming part of an overall investment project.










(1)  OJ C C/2023/15.


ELI: http://data.europa.eu/eli/C/2024/4944/oj
ISSN 1977-091X (electronic edition)