Case T-363/24: Action brought on 17 July 2024 – Ferngas Netzgesellschaft v Commission
Date: 2024-07-17
Institutions: General Court
Subjects: Germany, State aid, aid to undertakings, company in difficulties, control of State aid, gas supply, hydrogen, privatisation, restriction on competition








C_202405242EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5242


2.9.2024






Action brought on 17 July 2024 – Ferngas Netzgesellschaft v Commission


(Case T-363/24)

(C/2024/5242)
Language of the case: German

Parties


Applicant: Ferngas Netzgesellschaft mbH (Schwaig bei Nürnberg, Germany) (represented by: T. Richter and J. Funke-Kaiser, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul the defendant’s decision of 26 March 2024, C(2024) 2041 final, in Case SA.112489 (2024/N);










—


order the defendant to pay the costs.





Pleas in law and main arguments

The applicant alleges that the defendant infringed its participation rights. It submits that the defendant failed to initiate the formal investigation procedure pursuant to Article 4(4) of Regulation (EU) 2015/1589, (1) even though there were serious doubts as to the compatibility of the aid with the internal market.
The defendant authorised the aid recipient SEFE Securing Energy for Europe GmbH (SEFE) to acquire the remaining shares in WIGA under State aid law by approving a partial withdrawal of an acquisition prohibition agreed by Germany without taking into account the competitive effects on the infrastructure markets concerned, on which WIGA and the applicant are active. The defendant’s view, which is limited to the wholesale markets, fails to recognise the special situation existing in Germany that numerous gas transmission system operators are in competition with each other in a variety of ways, not least and currently in competition for investments in hydrogen network infrastructures.
In addition, the defendant justified the requirement to acquire the remaining WIGA shares from Germany on the one hand by arguing that SEFE’s BBB rating would otherwise be at risk following the reprivatisation of SEFE promised by Germany. The reason for this was that SEFE’s riskier trading business had to be offset by an increased commitment of property, plant and equipment in lower-risk network infrastructure. On the other hand, and in contradiction to this, it remains the case and is not objected to by the defendant that SEFE’s infrastructure business remains exempt from the reprivatisation obligation promised by Germany. This internal contradiction also indicates serious difficulties in examining the compatibility of the aid with the internal market.
Serious difficulties requiring the initiation of a formal investigation procedure are further indicated by the fact that the defendant’s assessment of the compatibility of the aid with the internal market is incomplete even under the requested modification of the commitments given because, although it mentions an appropriate standard of assessment, it does not apply it. In particular, the defendant does not examine whether the acquisition of WIGA is ‘indispensable’ within the meaning of the guidelines for rescuing and restructuring aid (2) to ensure the long-term viability of the aid recipient SEFE.


(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 2015 L 248, p. 9).

(2)  Communication from the Commission – Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1).


ELI: http://data.europa.eu/eli/C/2024/5242/oj
ISSN 1977-091X (electronic edition)