1 This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), and Article 4 of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82).
2 The request has been made in proceedings between, on the one hand, Tiberis Holding Srl (‘Tiberis’) and, on the other hand, Gestore dei servizi energetici (GSE) SpA, the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) and the Ministero dell’Ambiente e della Sicurezza energetica (Ministry of Environment and Energy Security, Italy) concerning invoices by which GSE requested Tiberis to repay part of the aid that the latter had received under an incentive scheme for the production of electricity from renewable sources other than photovoltaic energy.
3 Article 1 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), contains the following definitions: ‘For the purposes of this Regulation, the following definitions shall apply: … …’
4 Article 2(1) of that regulation provides: ‘Save as otherwise provided in regulations made pursuant to Article 109 TFEU or to other relevant provisions thereof, any plans to grant new aid shall be notified to the Commission in sufficient time by the Member State concerned. …’
5 Under Article 3 of that regulation: ‘Aid notifiable pursuant to Article 2(1) shall not be put into effect before the Commission has taken, or is deemed to have taken, a decision authorising such aid.’
6 Article 4(1) of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EU) 2015/1589 (OJ 2004 L 140, p. 1), as amended by Commission Regulation (EU) 2015/2282 of 27 November 2015 (OJ 2015 L 325, p. 1) (‘Regulation No 794/2004’), provides that, for the purposes of Article 1(c) of Regulation 2015/1589, ‘an alteration to existing aid shall mean any change, other than modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the common market. …’
7 By Decision C(2016) 2726 final of 28 April 2016 on State aid SA.43756 (2015/N) - Italy, Support to electricity from renewable sources in Italy (‘Decision SA.43756’), the Commission decided not to raise objections to the aid scheme notified to it by the Italian Republic, in the form of a draft ministerial decree, to promote the production of electricity from renewable energy sources, on the ground that it is compatible with the internal market pursuant to Article 107(3)(c) TFEU.
8 Part 2 of that decision, entitled ‘Description of the measure’, contains, in Section 2.1 thereof, entitled ‘Background and objectives of the scheme’, the following recitals:
9 Part 3 of that decision, which deals with the assessment of the notified aid scheme, includes recitals 28 to 66 of that decision. In that Part 3, the Commission states, in recitals 31 and 32, that, since it concerns support for electricity from renewable sources, the notified scheme falls within the scope of the 2014-2020 Guidelines, and that it is therefore on the basis of the relevant provisions of those guidelines, namely those set out in section 3.2 and sub-sections 3.3.1 and 3.3.2 of those guidelines, that it assessed the compatibility of that scheme with Article 107(3)(c) TFEU.
10 Recital 34 of Decision SA.43756, which appears under the heading ‘Objective of common interest’, states: ‘The aim of the notified aid measure is to help Italy [to achieve] the long term climate change and energy sustainability targets set by the [European Union] as part of the EU energy policy. The scheme will help Italy to reach its objectives. In line with points 30 and 31 of the [2014-2020 Guidelines], Italy defined the objective of the measure and explained [that] the measure will contribute [to] reaching the European energy policy goals (see recital (2)).’
11 Under the heading ‘Need for State aid, appropriate instrument and incentive effect’, recitals 36 to 42 of that decision refer, inter alia, to points 107, 116 and 49 of the 2014-2020 Guidelines.
12 The following recitals appear under the heading ‘Proportionality’: … …
13 Recital 66 of Decision SA.43756, which appears under the heading ‘Conclusion with regard to the compatibility of the measure’, states: ‘In light of the above, the Commission considers that the notified scheme pursues an objective of common interest in a necessary and proportionate way without unduly affecting competition and trade, and that therefore the aid is compatible with the internal market on the basis of the [2014-2020 Guidelines].’
14 The Decreto del Ministero dello Sviluppo Economico - Incentivazione dell’energia elettrica prodotta da fonti rinnovabili diverse dal fotovoltaico (Decree of the Ministry of Economic Development on the promotion of electricity produced from renewable sources other than photovoltaic energy), of 23 June 2016 (GURI No 150 of 29 June 2016, p. 8; ‘the decree of 23 June 2016’), refers, in its cited legal base, inter alia to Directive 2009/28 and Decision SA.43756.
15 Article 4 of the decree of 23 June 2016 sets out, in paragraphs 1 to 3 thereof, the procedures for accessing the system of incentives that it introduces, namely, respectively, entry of the installation in the appropriate register, which depends on the energy source and type of installation, participation of the operator in descending price auction procedures, and direct access. For each type of procedure, that Article 4 specifies the categories of eligible installations, which are essentially determined according to the production capacity of the installation concerned.
16 Article 7 of that decree determines the feed-in tariffs and incentives. Article 7(4) provides that, for installations with a capacity less than or equal to 500 kilowatts (kW), GSE will, where applicable, purchase the net amount of electricity fed into the grid by paying an overall incentive tariff determined on the basis of Annex 1 to that decree. Article 7(6) states that if the operator of the installation chooses to keep the electricity generated and sell it on the free market, GSE will pay a ‘feed-in tariff’. Switching from one incentive payment method to the other is not permitted more than twice during the period during which the incentive applies. Article 7(5) provides that, in the case of installations with a nominal power of more than 500 kW which benefit from an incentive by virtue of their participation in a descending price auction procedure, GSE will pay, in respect of the net amount of electricity fed into the grid, the incentive determined in accordance with that decree, the electricity produced by those installations remaining available to the producer.
17 The detailed rules for calculating incentives are set out in Part 1 of Annex 1 to the decree of 23 June 2016, entitled ‘Determination of incentives for new installations’. Point 1 of that Part 1 defines those rules for installations with a capacity of 500 kW or less opting for the overall incentive tariff, within the meaning of Article 7(4) of that decree. Point 2 of that Part 1 defines the detailed rules for calculating the incentive for other installations.
18 The basic incentive tariffs used to calculate the incentive are differentiated according to the source of renewable energy, the type of installation and its power. Those applicable to large installations are lower than those applicable to medium-sized installations.
19 Article 26(1) of the decree of 23 June 2016 provides that GSE is to publish specific procedures for the application of the incentive scheme established by that decree, in particular the operational rules relating, respectively, to the auction procedures and to the procedures for entry in the register.
20 Tiberis operates a hydroelectric power plant on the River Tiber with a capacity of 2.747 megawatts (MW). On 8 September 2017, GSE granted its request, submitted on 22 December 2016, to benefit from the incentive scheme for electricity production provided for by the decree of 23 June 2016, as supplemented by the implementing procedures laid down by GSE on 15 July 2016, in accordance with Article 26 of that decree.
21 On 5 October 2017, Tiberis entered into a contract with GSE that set out the conditions for the grant of the incentive payable to it under that scheme. From 2017 until 2021, Tiberis received a total of EUR 4 044 340.75 in aid. However, by two invoices of 4 April 2022 and an invoice of 2 May 2022, GSE requested Tiberis to repay part of the aid received, in the total amount of EUR 1 224 210.86.
22 Tiberis then brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), seeking the annulment of those requests for repayment and of the contractual and regulatory provisions on which they were based. In support of that action, Tiberis relied, inter alia, on an infringement of Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001. GSE and Conza Energia Srl, the other party to the proceedings, contended that the action was inadmissible on the ground that it was out of time and, in any event, unfounded.
23 That court held that the action was admissible but unfounded.
24 Tiberis brought an action before the Consiglio di Stato (Council of State, Italy), which is the referring court, seeking a variation of that judgment, reiterating its plea alleging infringement of Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001. GSE and Conza Energia contend that that action should be dismissed.
25 The referring court states that, prima facie, point 2 of Part 1 of Annex 1 to the decree of 23 June 2016 seems to be contrary to Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001. Those provisions of EU law lay down five cumulative criteria for incentives to be lawful. It is necessary, first, that they be market-based, second, that they allow beneficiaries to be market-responsive, third, that they avoid unnecessary distortions of markets, fourth, that they ensure that producers are responding to market price signals and, fifth, that they ensure that producers maximise their market revenues. They should, in addition, be granted in an open, transparent, competitive, non-discriminatory and cost-effective manner.
26 However, the national legislation at issue before it could have the effect of compelling producers to abandon the incentives, which would be contrary to the purpose of the incentive scheme. In that regard, the referring court states that Article 4 of the decree of 23 June 2016 provides that access to those incentives is granted on the basis of three different procedures, but that producers are not free to opt for a particular procedure; the procedure to which they are entitled depends exclusively on the production capacity of the installation concerned. Tiberis could not therefore have freely chosen between benefiting from an incentive by virtue of its entry in the register and benefiting from an incentive by virtue of participation in an auction procedure. However, producers benefiting from an incentive by virtue of their entry in the register are required to reimburse GSE the difference between the market price and the incentive tariff guaranteed by GSE where the market price is higher than the incentive tariff, unlike producers with large installations, which benefit from an incentive by means of an auction procedure and may collect the full market price.
27 Furthermore, the modality that entails making an adjustment in favour of GSE when the market price is higher than that tariff appears potentially to be incompatible with Directives 2009/28 and 2018/2001, in so far as, according to the referring court, those directives require Member States to allow operators to react to market dynamics in order to prevent distortions resulting from the elimination of producers’ responsiveness to demand, whereas, on account of the ‘negative incentive’ mechanism, producers benefitting from the incentive by virtue of their entry in the register would not have an interest in reacting to market dynamics.
28 In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Do the principles set out in Article 3 of Directive [2009/28] and Article 4 of Directive [2018/2011] preclude … national legislation which, in the context of a national incentive scheme, provides, in situations where producers sell energy on the free market, for an incentive tariff that guarantees a minimum price, which is at the same time also a maximum price, by virtue of an adjustment/reimbursement mechanism for sums exceeding the value of the incentive where the market price is higher than the latter (the so-called negative incentive), and, moreover, applies the adjustment mechanism only where the producer selling energy on the free market accesses the incentive by registering in the relevant register[, not] where it accesses it by participating in an auction procedure?’
29 GSE claims that the request for a preliminary ruling is inadmissible on the ground that the referring court has not set out all the relevant facts or set out the precise reasons why it is uncertain whether the national legislation is compatible with EU law, in breach of Article 94 of the Rules of Procedure of the Court of Justice.
30 In that regard, it is important to note that, in accordance with settled case-law, which is reflected in Article 94(a) and (b) of the Rules of Procedure, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and regulatory context of the questions it is asking or, at the very least, to explain the factual hypotheses on which those questions are based. Furthermore, it is essential, as stated in Article 94(c) of the Rules of Procedure, that the request for a preliminary ruling itself contain a statement of the reasons which prompted the referring court or tribunal to enquire about the interpretation or validity of certain provisions of EU law, and the connection between those provisions and the national legislation applicable to the dispute in the main proceedings (judgment of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 59 and the case-law cited).
31 In the present case, the request for a preliminary ruling complies with the requirements set out in the preceding paragraph of the present judgment.
32 That said, it should be noted that the Italian Government also submits that the request for a preliminary ruling is inadmissible, but on the ground that the referring court cannot grant Tiberis’ request, with the result that the question referred is hypothetical. According to that government, granting that request would lead to a substantial alteration of the aid authorised by Decision SA.43756, which would amount to that court granting new aid that was neither notified to the Commission nor authorised by it. This is precluded by Article 108(3) TFEU.
33 In that regard, it should be borne in mind that, in accordance with settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 8, and of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 36 and the case-law cited).
34 Nevertheless, the Court must examine the circumstances in which cases are referred to it by the national court, in order to assess whether it has jurisdiction or whether the request submitted to it is admissible (judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 37 and the case-law cited).
35 The Court may, in particular, find it necessary to examine whether the provisions of EU law to which the questions referred relate may be applied by the referring court for the purpose of resolving the dispute in the main proceedings. If they cannot, those provisions are irrelevant in resolving that dispute and the questions referred for a preliminary ruling are not necessary to enable the referring court to give judgment, with the result that those questions must be held to be inadmissible (judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 38).
36 In the present case, it is apparent from the request for a preliminary ruling that, by its action before the referring court, Tiberis challenges the lawfulness, in the light of Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001, of the negative incentive mechanism provided for by the decree of 23 June 2016, which constitutes a modality of the application of the scheme for the promotion of electricity produced from renewable sources other than photovoltaic energy, established by that decree.
37 Furthermore, it is apparent from the documents before the Court and from the discussions at the hearing before it that it is common ground that that scheme for the promotion of electricity produced from renewable sources other than photovoltaic energy constitutes a State aid scheme, within the meaning of Article 107 TFEU, Article 2(k) of Directive 2009/28 and point 5 of the second paragraph of Article 2 of Directive 2018/2001, which was notified to the Commission by the competent Italian authorities and which is the subject of Decision SA.43756. By that decision, the Commission decided not to raise objections to that scheme, having found that that it was compatible with the internal market under Article 107(3)(c) TFEU.
38 In the present case, it is therefore necessary to determine whether an action brought before a national court by an economic operator in order to challenge a modality of implementation of a State aid scheme intended to promote the production of electricity from renewable sources, of which it is a beneficiary and which is the subject of a Commission decision finding it compatible with the internal market, may be assessed by that court in the light of the provisions of Article 3 of Directive 2009/28 or Article 4 of Directive 2018/2001, on which that operator relies and which are the subject of the question referred.
39 In that regard, it should be borne in mind that, as is apparent from settled case-law, within the system established by the FEU Treaty for monitoring State aid, the national courts and the Commission fulfil complementary but separate roles (judgment of 2 May 2019, A-Fonds, C‑598/17, EU:C:2019:352, paragraph 45 and the case-law cited).
40 In particular, national courts ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU. For this purpose, proceedings may be commenced before national courts requiring those courts to interpret and apply the concept of ‘State aid’, contained in Article 107(1) TFEU, in order to determine whether a State measure introduced without observance of the preliminary examination procedure provided for in Article 108(3) TFEU ought or ought not to have been subject to this procedure. By contrast, national courts do not have jurisdiction to give a ruling on whether aid measures or a State aid regime are compatible with the internal market. Indeed, in accordance with settled case-law, that assessment falls within the exclusive competence of the Commission, subject to review by the EU judicature (see, to that effect, judgments of 15 September 2016, PGE, C‑574/14, EU:C:2016:686, paragraphs 31 and 32, and of 2 May 2019, A-Fonds, C‑598/17, EU:C:2019:352, paragraph 46 and the case-law cited).
41 In addition, in accordance with settled case-law, the procedure under Article 108 TFEU must never produce a result which is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market. Where the modalities of an aid measure or an aid scheme are so indissolubly linked to the object of the aid or the scheme, or to their functioning, that it is impossible to assess them separately, their effect on the compatibility or incompatibility of the aid or scheme viewed as a whole must necessarily be assessed by means of the procedure prescribed in Article 108 TFEU (see, to that effect, judgments of 2 May 2019, A-Fonds, C‑598/17, EU:C:2019:352, paragraph 48 and the case-law cited, and of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraphs 96 and 97 and the case-law cited).
42 The assessment of such modalities therefore falls outside the jurisdiction of the national courts (see, to that effect, judgment of 2 May 2019, A-Fonds, C‑598/17, EU:C:2019:352, paragraph 47 and the case-law cited).
43 It must also be borne in mind that the application of the EU rules on State aid is based on an obligation of sincere cooperation between, on the one hand, the national courts and, on the other hand, the Commission and the Courts of the European Union, in the context of which each acts on the basis of the role assigned to it by the FEU Treaty. In the context of that cooperation, national courts must take all the necessary measures, whether general or specific, to ensure the fulfilment of the obligations under EU law and refrain from taking those which may jeopardise the attainment of the objectives of the Treaty, as follows from Article 4(3) TEU. Therefore, national courts must, in particular, refrain from taking decisions which run counter to a Commission decision on the compatibility of State aid with the internal market, the assessment of which comes within the exclusive competence of that institution, subject to review by the EU judicature (see, to that effect, judgments of 15 September 2016, PGE, C‑574/14, EU:C:2016:686, paragraphs 33 and 34 and the case-law cited, and of 17 October 2024, NFŠ, C‑28/23, EU:C:2024:893, paragraph 59).
44 In the present case, it is apparent from the file before the Court that the negative incentive mechanism contested in the case in the main proceedings constitutes a modality of operation of the aid scheme referred to in Decision SA.43756, a matter which moreover, was confirmed during the hearing. In that regard, it is apparent, in particular, from recitals 43, 44, 47, 48, 50 and 51 of Decision SA.43756 that it is the negative incentive mechanism contested in the case in the main proceedings that ultimately determines the amount of aid granted individually to economic operators benefiting from the aid scheme at issue by virtue of their entry in a register. Thus, it was that mechanism which enabled the Commission to conclude that, precisely for projects entered in a register, that aid scheme satisfied the condition of proportionality.
45 Therefore, in the light of the case-law referred to in paragraph 41 of the present judgment, that modality, which is inextricably linked to the functioning of the aid scheme concerned, cannot be assessed in isolation from that scheme.
46 In addition, it follows from that same case-law that the Commission could not declare the State aid scheme which is the subject of Decision SA.43756 to be compatible with the internal market, pursuant to Article 107(3)(b) TFEU, without first ensuring that that aid scheme does not infringe other relevant provisions or general principles of EU law (see, by analogy, judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 100).
47 It follows, in the first place, that to allow a national court, in the context of the implementation of that aid scheme, to review the lawfulness, in the light of Article 3 of Directive 2009/28, of that negative incentive mechanism would amount, in essence, to giving that court the power to substitute its own assessment for that of the Commission in Decision SA.43756 and to allowing it, contrary to the case-law cited in paragraph 40 of the present judgment, to encroach on that institution’s exclusive competences relating to the assessment of the compatibility of State aid with the internal market, and to breach its duty to cooperate in good faith with the EU institutions, referred to in paragraph 43 of the present judgment (see, by analogy, judgment of 15 September 2016, PGE, C‑574/14, EU:C:2016:686, paragraphs 36 and 37).
48 The fact that Decision SA.43756 does not expressly mention Directive 2009/28, in particular Article 3 thereof, mentioned in the question referred, is irrelevant in that regard.
49 The aid scheme which is the subject of that decision is specifically intended, as is apparent from recitals 2 to 4 and 34 thereof, to promote, in Italy, the production of electricity from renewable energy sources other than photovoltaic energy and, as stated in recital 31 of that decision, the notified scheme, which corresponds to the scheme at issue in the main proceedings, was assessed in particular in the light of the 2014-2020 Guidelines. Paragraph 107 of those guidelines, to which recital 36 of Decision SA.43756 refers, notes that the European Union has set itself ambitious climate change and energy sustainability targets, that several EU legislative acts, such as Directive 2009/28, already support the achievement of those objectives, and that, under certain conditions, State aid can be an appropriate instrument to contribute to the achievement of the EU objectives and related national targets.
50 Accordingly, when the Commission, in Decision SA.43756, assessed the compatibility of that aid scheme with the internal market, including the modality of operation which the negative incentive mechanism constitutes, it necessarily took into account Directive 2009/38.
51 In the second place, as regards the assessment of the compliance of the negative incentive mechanism with Article 4 of Directive 2018/2001, or even with Article 6 thereof, relied on in particular by the Commission, it should be noted that, admittedly, that directive was adopted subsequently to Decision SA.43756, with the result that it cannot be considered that, by that decision, the Commission necessarily assessed that mechanism by ensuring that it does not infringe one or other of those provisions.
52 However, first, since the aid scheme established by the decree of 23 June 2016 was authorised by the Commission under that decision, it comes within the concept of ‘existing aid’ within the meaning of Article 1(b)(ii) of Regulation 2015/1589.
53 Article 108(1) TFEU gives the Commission the power, in cooperation with the Member States, to keep existing aid under constant review. That review may prompt the Commission to propose to the Member State concerned the appropriate measures required by the progressive development or by the functioning of the internal market and, if necessary, to decide to abolish or alter aid which it considers to be incompatible with the internal market (judgment of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 40 and the case-law cited).
54 In addition, in the context of the constant review of existing aid schemes, the legal situation does not change until such time as the Member State concerned accepts proposals for appropriate measures or the Commission adopts a final decision (see, to that effect, judgment of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 61).
55 The assessment of the compatibility of an existing aid scheme with the internal market thus continues to come within the exclusive competence of the Commission, subject to review by the EU judicature, in accordance with the case-law referred to in paragraph 40 of the present judgment.
56 Moreover, in the circumstances of this case, the Commission, by the Communication entitled ‘Guidelines on State aid for climate, environmental protection and energy 2022’ (OJ 2022 C 80, p. 1), which replaced the 2014-2020 Guidelines on 18 February 2022, proposed to Member States, by way of ‘appropriate measures’ within the meaning of Article 108(1) TFEU, to amend, where necessary, their existing environmental protection and energy aid schemes in order to bring them into line with the new guidelines no later than 31 December 2023.
57 That period had not yet expired on 4 April 2022 or 2 May 2022, the dates on which the invoices giving rise to the dispute in the main proceedings, referred to in paragraph 21 of the present judgment, were issued.
58 Second, any amendment to the negative incentive mechanism at issue in the main proceedings would, as a result of any increase in the aid intensity which might result from it, be liable to affect the assessment of the compatibility of the aid scheme at issue with the internal market. That mechanism is inextricably linked to the functioning of that scheme and, in the absence of that mechanism, it is possible that the Commission would have considered that that aid scheme was not proportionate and that, consequently, it would not have declared it compatible with the internal market. Such an alteration would therefore constitute, under Article 4(1) of Regulation No 794/2004, an ‘alteration to existing aid’ and, therefore, ‘new aid’, within the meaning of Article 1(c) of Regulation 2015/1589, subject to the notification obligation laid down in Article 108(3) TFEU, the compatibility of which with the internal market falls, in accordance with the case-law referred to in paragraph 40 of the present judgment, within the exclusive competence of the Commission, subject to review by the EU judicature.
59 The finding made in the preceding paragraph of the present judgment also applies in the event that an amendment to that mechanism is not made erga omnes, as Tiberis is requesting in this case, but solely for the benefit of a particular beneficiary, such as Tiberis. The authorisation to implement a State aid scheme granted by the Commission in a decision not to raise objections is valid only in so far as all the factors taken into consideration by the Commission in that decision for the purposes of assessing the compatibility of that scheme with the internal market are respected (see, by analogy, judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 83). Thus, an aid scheme implemented at an individual level which does not correspond to the aid scheme notified to and authorised by the Commission could also be considered to be ‘new aid’ within the meaning of Article 1(c) of Regulation 2015/1589 (see, by analogy, judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 86).
60 The Court has already held that the establishment as such of State aid cannot result from a judicial decision but entails a decision as to the appropriate course of action which falls outside the scope of a court’s powers and obligations (see, to that effect, judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 76).
61 Moreover, it is true that, in paragraphs 121 and 122 of the judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1), the Court noted that, where the national court is seised of a request seeking the payment of aid which is unlawful, since it was not notified to the Commission, the task of reviewing State aid which EU law confers on those courts must, in principle, lead the national court to reject that request, while acknowledging that, nevertheless, a decision of the national court ordering the defendant to pay the aid in question subject to the condition that that aid must first be notified to the Commission by the national authorities concerned and that the Commission gives its consent, or is deemed to have given it, is also likely to prevent new aid from being paid in breach of Article 108(3) TFEU and Article 2(1) and Article 3 of Regulation 2015/1589.
62 However, that case-law cannot be applied to the context of the case in the main proceedings and cannot, therefore, call into question the finding which follows from the considerations set out in paragraphs 52 to 60 of the present judgment. In the case in the main proceedings, the national court’s jurisdiction to hear and determine the action in the main proceedings is not such as to prevent new aid from being paid in breach of Article 108(3) TFEU and Article 2(1) and Article 3 of Regulation 2015/1589. As is apparent from paragraph 58 of the present judgment, any amendment to the negative incentive mechanism is subject to the notification obligation laid down in Article 108(3) TFEU and the assessment of the compatibility of that amendment with the internal market comes within the exclusive competence of the Commission, subject to review by the EU judicature.
63 It follows from all of the foregoing that EU law precludes the referring court from assessing whether the negative incentive mechanism at issue in the main proceedings complies with the provisions of Article 3 of Directive 2009/28 or Article 4 of Directive 2018/2001, since that mechanism is inextricably linked to the functioning of the State aid scheme which the Commission declared compatible with the internal market by Decision SA.43756.
64 Consequently, the interpretation of neither Article 3 of Directive 2009/28 nor Article 4 of Directive 2018/2001 is relevant to the resolution of the dispute in the main proceedings.
65 It follows that the request for a preliminary ruling is inadmissible.
66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.