GC, 8th chamber, November 10, 2021, No T-678/20

 THE GENERAL COURT (Eighth Chamber),

1 Loi no 2000‑108, du 10 février 2000, relative à la modernisation et au développement du service public de l’électricité (Law No 2000‑108 of 10 February 2000 on the modernisation and development of the public electricity service; JORF of 11 February 2000, p. 2143) is intended to encourage the development of renewable energy in France. To that end, that law introduced a purchase obligation which was incorporated in Article L.314‑1 et seq. of the Code de l’énergie (Energy Code) and according to which Électricité de France (EDF) and the non-nationalised distributors referred to in Article 23 of loi no 46‑628, du 8 avril 1946, sur la nationalisation de l’électricité et du gaz (Law No 46‑628 of 8 April 1946 on the nationalisation of electricity and gas) have an obligation to enter into, where the producers concerned so request, a contract for the purchase of electricity produced from renewable energy sources, including photovoltaic energy, for a period of 20 years at a price set by ministerial pricing order. Until 31 December 2015, under décret no 2004‑90, du 28 janvier 2004, relatif à la compensation de charges de service public d’électricité (Decree No 2004-90 of 28 January 2004 on compensation for public electricity charges), the costs borne by EDF and the non-nationalised distributors referred to in Article 23 of Law No 46-628, as a result of the purchase obligation, were the subject of a full offset mechanism financed by a contribution to the public electricity service levied on electricity consumers. Since 1 January 2016, those costs have been compensated by a special account for the energy transition, financed by taxes on the consumption of energy products.

2 Pricing orders of the type referred to in paragraph 1 above were adopted, inter alia, on 10 July 2006 (‘pricing order 2006’), on 12 January 2010 (‘pricing order 1/2010’), on 31 August 2010 (‘pricing order 8/2010’), on 4 March 2011 and on 9 May 2017. Even though only the pricing order of 9 May 2017 is still in force, the other pricing orders, which have since been repealed, continue to be applicable in so far as the purchase price of electricity paid for the entire duration of the purchase contract, namely 20 years, is that defined by the pricing order in force on the day on which the producer submitted a complete application for connection to the public network.

3 Solar Electric Holding – a holding company which wholly owns, as subsidiaries, Solar Electric Guyane and Solar Electric Martinique, which are responsible for the development and construction of photovoltaic electricity production projects in French Guiana and Martinique respectively, as well as Société de production d’énergies renouvelables (Soproder), which is responsible for the operation of those various photovoltaic plants – entered into contracts with EDF for the purchase of electricity on the basis of the pricing orders referred to in paragraph 1 above. Within the group formed by those various companies, Soproder was thus the company benefiting directly and immediately from the preferential prices defined by those pricing orders.

4 By judgment of 18 September 2019, the Cour de cassation (Court of Cassation, France), hearing claims for compensation, held that the measures based on pricing orders 2006 and 1/2010, implementing a purchase obligation mechanism at a price higher than the market price, constituted unlawful State aid in that they had not been notified to the European Commission in accordance with Article 108(3) TFEU.

5 Furthermore, by letter of 26 March 2020 addressed to the applicants, Solar Electric Holding, Solar Electric Guyane, Solar Electric Martinique and Soproder, the Commission confirmed that the measures based on pricing orders 2006, 1/2010 and 8/2010 had not been notified to it.

6 On 20 June 2020, the applicants sent the Commission the complaint form relating to unlawful State aid, as referred to in Article 24(2) 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). In that form, the applicants stated that the aid schemes resulting from pricing orders 2006, 1/2010 and 8/2010 had been implemented even though the Commission had never ruled on their compatibility with the internal market and that the absence of a Commission decision created what they claim is a legal vacuum detrimental to all French producers of electricity from photovoltaic energy sources, in so far as the income from contracts concluded at the price laid down by those pricing orders could be called into question and be subject to recovery measures. According to the information provided by the applicants in that form, the support mechanisms for electricity production from photovoltaic energy sources resulting from pricing orders 2006, 1/2010 and 8/2010 are compatible with the internal market. In reliance upon Article 108(1) TFEU and Article 12(1) of Regulation 2015/1589, the applicants, in that form, and more specifically in points 3.4, 8 and 9.3 thereof, ‘[asked] the Commission to make an express finding as to the compatibility of the aid schemes resulting from [those] orders’.

7 By letter of 1 July 2020, the Commission’s services drew up a number of questions and requests for additional information, to which the applicants replied by email dated 31 August 2020.

8 By letter of 3 September 2020, the Commission rejected the applicants’ complaint of 20 June 2020 concerning unlawful State aid to the applicants’ photovoltaic plants (‘the contested decision’), stating inter alia as follows:

‘The [Directorate-General for Competition] considers that your complaint must be rejected on the ground that the subject matter does not fall within the scope of Articles 12(1) and 24(2) of [Regulation 2015/1589].

…

… the Complainants asked the Commission to make a finding as to the compatibility of the aid schemes, as if they represented France in a quasi-notification procedure. Accordingly, the subject matter of your complaint does not fall within the scope of Articles 12(1) and 24(2) of [Regulation No 2015/1589] and must for that reason be rejected.

…

We thank you for the information you have supplied. The Commission will record it as general market information.’

Procedure and forms of orders sought

9 By application lodged at the Court Registry on 12 November 2020, the applicants brought the present action.

10 The defence was lodged at the Court Registry on 27 January 2021.

11 By decision of 2 February 2021, the Court decided, in accordance with Article 83(1) of its Rules of Procedure, that a second exchange of pleadings was unnecessary.

12 By letter of 15 April 2021, the applicants requested that a hearing be held pursuant to Article 106(1) of the Rules of Procedure.

13 On 4 June 2021, the Court, by way of measure of organisation of procedure, put a question to the parties to be answered in writing, to which the parties replied on 21 June 2021.

14 By letter of 9 July 2021, the applicants informed the Court that they were withdrawing their request for a hearing.

15 The applicants claim that the Court should annul the contested decision.

16 The Commission contends that the Court should:

– dismiss the action;

– order the applicants pay the costs.

Law

17 In support of their action, the applicants rely on three pleas in law, based on (i) an infringement of Article 24(2) of Regulation 2015/1589, (ii) an infringement of Article 12(1) of that regulation and (iii) the Commission’s obligation to ensure that the provisions of the FEU Treaty are applied.

The first plea, based on an infringement of Article 24(2) of Regulation 2015/1589

18 In connection with the first plea, the applicants claim, in reliance upon the wording of Article 24(2) of Regulation 2015/1589, that it is sufficient for aid to be unlawful for it to be the subject of a complaint that is admissible under that article. Article 24(2) of that regulation in no way imposes an additional condition that the complaint should seek a declaration that the aid in question is incompatible. Although, according to the applicants, in practice it is rare, or even unprecedented, for a complaint against unlawful but compatible aid to be lodged by an interested party, that exceptional nature cannot, however, place that complaint outside the scope of Article 24(2) of Regulation 2015/1589, unless a condition of admissibility not laid down by the FEU Treaty or that regulation is added.

19 Furthermore, the Commission, in the contested decision, erred in relying on the conditions for initiating a formal investigation procedure, which should be initiated if, following the preliminary examination, doubts remained as to the compatibility of the aid with the internal market. According to the applicants, even though, in practice, most complaints concerning unlawful aid have as their ultimate objective the initiation of the formal investigation procedure, the option to lodge a complaint challenging unlawful aid which must lead, first of all, to the preliminary examination must not be confused with the case of initiating a formal investigation procedure.

20 In those circumstances, the fact that the applicants consider the unlawful aid which is the subject of their complaint to be compatible with the internal market and that they seek to obtain, by that complaint, a decision of the Commission not to raise objections to that aid does not exclude that complaint from the scope of Article 24(2) of Regulation 2015/1589.

21 The Commission disputes those arguments.

22 As a preliminary point, it should be noted that the complaint lodged by the applicants sought to obtain from the Commission a decision not to raise objections to the compatibility of the measures implemented by the French authorities and based on pricing orders 2006, 1/2010 and 8/2010. In that context, the first plea raises the question of whether Article 24(2) of Regulation 2015/1589 confers on the beneficiary of new, unlawfully granted aid and, as in the present case, on companies with an economic interest in the company receiving that aid, by reason of integration within the same group, an individual right to submit a complaint to the Commission in order to obtain from it a decision declaring aid which has not been notified by the Member State concerned to be compatible with the internal market.

23 Article 24 of Regulation 2015/1589, entitled ‘Rights of interested parties’, provides in paragraph 2 thereof that ‘any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid’. At the same time, the definition of ‘interested party’ in Article 1(h) of Regulation 2015/1589 refers to ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’.

24 Although it could be concluded from the wording of the provisions cited above that the beneficiaries of unlawfully granted aid may submit a complaint to the Commission, such a conclusion must nevertheless be rejected on grounds relating to the structure of State aid control and the scheme of the complaints mechanism.

25 As regards, first of all, the structure of State aid control, it must be recalled that the notification requirement is one of the fundamental features of the system of State aid control put in place by the FEU Treaty, which establishes a prior control of plans to grant new aid established by Article 108(3) TFEU and aims at ensuring that only aid compatible with the internal market is implemented, and only after doubts as to its compatibility have been resolved by a final decision of the Commission (judgment of 24 November 2020, Viasat Broadcasting UK, C‑445/19, EU:C:2020:952, paragraphs 18 and 19). That system of prior control precludes Member States which pay aid in breach of Article 108(3) TFEU from being favoured to the detriment of those which, in accordance with that provision, notify the aid at the planning stage and refrain from implementing it pending the final decision adopted by the Commission (judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 92). In that regard, it must also be recalled that the assessment of the compatibility of aid measures with the internal market, under Article 107(3) TFEU, falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union (see judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 37 and the case-law cited).

26 It is apparent from the actual structure of Article 108(3) TFEU, which establishes a bilateral relationship between the Commission and the Member States, that only the Member States are under the obligation to notify. That obligation can thus not be regarded as satisfied by notification by the undertaking receiving the aid. As has already been held by the Court of Justice, the machinery for reviewing and examining State aid established by Article 108 TFEU does not impose any specific obligation on the recipient of aid. First, the notification requirement and the prior prohibition on implementing planned aid are directed only to the Member State concerned, as is also apparent from Article 10 of Regulation 2015/1589, which provides that the Member State concerned may withdraw the notification before the Commission has taken a decision on the compatibility of the aid with the internal market. Second, the Member State is also the sole addressee of the decision by which the Commission finds that aid is incompatible and requests the Member State to abolish the aid within the period determined by the Commission (judgments of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraph 73, and of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 103).

27 To accept that the recipient of unlawfully granted aid may submit a complaint to the Commission in order for it to establish that the aid is compatible with the internal market would have no effect other than to allow that recipient to take the place of the Member State concerned, which alone is competent to notify an aid measure to the Commission.

28 Moreover, such an option for the beneficiary of unlawfully granted aid to submit a complaint to the Commission with a view to having the aid found compatible with the internal market would call into question the fundamental and imperative nature of the obligation to notify aid measures and the prohibition on their implementation under Article 108(3) TFEU, as recalled by the case-law (see, to that effect, judgment of 17 September 2019, Italy and Eurallumina v Commission, T‑119/07 and T‑207/07, not published, EU:T:2019:613, paragraph 113), as well as the penalty in principle associated with the failure of the Member State to fulfil, inter alia, that obligation to give prior notification, namely the repayment of that aid (see, to that effect, judgment of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraph 70).

29 It offers the recipient of unlawfully granted aid the opportunity to remedy, for its own benefit, failures by the Member State concerned to fulfil an obligation, by seeking a Commission decision allowing it subsequently to rely on paragraph 55 of the judgment of 12 February 2008, CELF and Ministre de la Culture et de la Communication (C‑199/06, EU:C:2008:79), under which the national court is not bound to order the recovery of aid implemented contrary to the last sentence of Article 108(3) TFEU, where the Commission has adopted a final decision declaring that aid to be compatible with the internal market, which the applicants themselves admit to seeking.

30 Furthermore, it should be borne in mind, again from the perspective of the structure of the system of State aid control, that the national courts must offer to individuals the certain prospect that all the necessary inferences will be drawn from a breach of the obligations arising from Article 108(3) TFEU, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures (judgment of 21 November 1991, Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon, C‑354/90, EU:C:1991:440, paragraph 12). To that end, proceedings may be commenced before national courts requiring those courts to interpret and apply the concept of aid contained in Article 107(1) TFEU, in particular in order to determine whether State aid should or should not have been made subject to the preliminary examination procedure provided for in Article 108(3) TFEU. If those courts reach the conclusion that the measure concerned should in fact have been previously notified to the Commission, they must declare it to be unlawful (judgment of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 37).

31 It follows that the recipients of unlawful aid may bring proceedings before their national courts in order to have a penalty imposed on the State providing that aid on account of an express or implied refusal to comply with its obligation to notify. Accordingly, it is not appropriate to recognise that those recipients have the right to initiate, by means of a complaint addressed to the Commission on the basis of Article 24(2) of Regulation 2015/1589, the examination of the compatibility of the aid with the aim of having it authorised, even, as the case may be, against the will of the Member State concerned, as manifested by its failure to notify the aid.

32 As the Commission correctly points out, there is no individual right to the grant of State aid under EU law. Accordingly, the recipient cannot substitute itself for the competences of the Member State and, on its own initiative, effect notification on behalf of the Member State with the aim of obtaining by such notification a decision authorising the implementation of non-notified aid (see, to that effect, judgment of 1 June 2006, P & O Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 103).

33 As regards the scheme of the complaints mechanism and the right to lodge a complaint with the Commission, it should be noted that, according to the first sentence of Article 24(2) of Regulation 2015/1589, the purpose of that mechanism is to inform the Commission of any alleged unlawful aid, which, in accordance with the first sentence of Article 15(1) of that regulation, triggers the initiation of the preliminary examination stage provided for in Article 108(3) TFEU, entailing the adoption, by the Commission, of a decision under Article 4(2), (3) or (4) of Regulation 2015/1589 (judgment of 5 May 2021, ITD and Danske Fragtmænd v Commission, T‑561/18, under appeal, EU:T:2021:240, paragraph 47).

34 Furthermore, the second subparagraph of Article 12(1) of Regulation 2015/1589 provides that the Commission ‘shall ensure that the Member State concerned is kept fully and regularly informed of the progress and the results of the examination [of any complaint]’. That provision, which is intended to protect the rights of defence of the Member State concerned, implies that the decision following up and upholding a complaint is intended to be unfavourable to it and, accordingly, to declare the incompatibility of the aid that was the subject of the complaint.

35 The fact that the complaint mechanism was designed to identify aid that is incompatible with the internal market is also borne out by point 8 of the complaint form referred to in Article 24(2) of Regulation 2015/1589 and annexed to Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 2004 L 140, p. 1), as amended, which requires that the complainant indicate ‘the reasons why [in its view] the alleged aid is not compatible with the internal market’.

36 In addition, it is apparent from point 3 of that form that the beneficiaries of aid are not among the parties who may lodge a complaint. Also, the reference to competitors of the beneficiary or beneficiaries of aid and the question set out in that point seeking to clarify why and to what extent the alleged State aid affects the competitive position of the complainant shows that the complaint mechanism is intended to protect, inter alia, the rights of those whose interests may be affected by the grant of aid to certain beneficiaries. That is further corroborated by point 7 of that form, which requires the complainant to explain how, in its opinion, the alleged State aid provides an economic advantage for the beneficiary or beneficiaries.

37 Therefore, although beneficiaries are regarded as ‘interested parties’ in Article 1(h) of Regulation 2015/1589, the scheme of the complaint mechanism precludes that mechanism being used by parties which, as is the case, inter alia, of the beneficiaries of the aid complained of, have an interest in the Commission’s finding that the aid is compatible.

38 It follows that the scope of Article 24(2) of Regulation 2015/1589 is limited to complaints made against unlawful aid which complainants consider to be incompatible with the internal market. By contrast, the scope of Article 24(2) of that regulation does not cover complaints by which complainants maintain that aid is compatible with the internal market and should, for that reason, be authorised by the Commission. Consequently, the recipients of unlawful aid, and the companies having an economic interest in that recipient company by virtue of the economic unit which they form with it because the complainants are wholly owned by the parent company, cannot rely on the first sentence of Article 24(2) of Regulation 2015/1589 in order to lodge a complaint concerning unlawful aid which they directly or indirectly receive, with the aim of having the Commission adopt a decision declaring that aid to be compatible.

39 In those circumstances, it must be held that the complaint lodged by the applicants on 20 June 2020 does not fall within the scope of Article 24(2) of Regulation 2015/1589.

40 It follows from the foregoing that the Commission did not err in law in finding that the complaint lodged by the applicants did not fall within the scope of Article 24(2) of Regulation 2015/1589. Accordingly, the first plea must be rejected as unfounded.

The second plea, based on an infringement of Article 12(1) of Regulation 2015/1589

41 By the second plea, the applicants claim that the Commission erred in law inasmuch as it acted contrary to its obligation to initiate the preliminary examination stage. Such an obligation was triggered under Article 12(1) of Regulation 2015/1589. According to the applicants, they lodged a complaint in accordance with Article 24(2) of that regulation.

42 The Commission contends that the second plea is not independent of the first and that its outcome depends entirely on the first plea for annulment, alleging infringement of Article 24(2) of Regulation 2015/1589. The Commission submits that the second plea is unfounded, taking into account the provisions of Article 12 of that regulation. Thus, according to the Commission, the second plea for annulment should also be rejected.

43 In response to that plea, it should be noted that, according to the second subparagraph of Article 12(1) of Regulation 2015/1589, the Commission is to examine any complaint ‘submitted by an interested party in accordance with Article 24(2) [of that regulation]’. Thus, the Commission is required to conduct a diligent and impartial examination of the complaints submitted to it where they allege infringement of Article 107(1) TFEU and identify in an unequivocal and reasoned manner the measures giving rise to that infringement (see, to that effect, judgment of 15 March 2018, Naviera Armas v Commission, T‑108/16, EU:T:2018:145, paragraph 102). Since the complaint submitted by the applicants on 20 June 2020 does not allege infringement of Article 107(1) TFEU and therefore does not fall within the scope of Article 24(2) of that regulation, the Commission was not under an obligation to initiate the preliminary examination stage in accordance with Article 12(1) of that regulation.

44 Accordingly, the second plea must be rejected as unfounded.

The third plea, based on the Commission’s obligation to apply the FEU Treaty

45 In the third plea, the applicants claim that the Commission failed to fulfil its obligations under Articles 107, 108 and 109 TFEU and Regulation 2015/1589.

46 Although the Commission was informed of the existence of the aid schemes resulting from pricing orders 2006, 1/2010 and 8/2010 and of the fact that they were not notified, the Commission remained inactive, which rendered the provisions of the FEU Treaty devoid of purpose. By rejecting a complaint relating to aid which the Commission acknowledges to be unlawful without, however, having ascertained beforehand that the aid was not incompatible with the internal market, the Commission failed to fulfil its role as guarantor of EU law and that of ensuring legal certainty for individuals. Since the Commission has exclusive competence to assess the compatibility of aid, it was for the Commission to verify that the unlawful aid, the existence of which had been brought to its notice by the applicants, was not incompatible. Moreover, there is material produced by the applicants, such as an opinion of the Commission de régulation de l’énergie (Energy Regulatory Commission, France), which called into question the compatibility of the aid with the internal market.

47 In those circumstances, the Commission’s failure to adopt a position on the compatibility of the aid at issue amounts, according to the applicants, to a denial of justice, since it creates a legal vacuum which Articles 107 to 109 TFEU, as well as Regulation 2015/1589, seek to avoid.

48 The Commission disputes the arguments put forward.

49 In response to the third plea, it should first of all be recalled, as the applicants submit, that the Commission has exclusive competence to assess the compatibility of aid measures with the internal market (see judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 37 and the case-law cited). However, EU law does not impose an absolute obligation upon the Commission to carry out an assessment of the compatibility of aid which has not been notified as soon as it is informed of that aid.

50 Regulation 2015/1589 provides for only two situations in which the Commission is in fact required to examine the compatibility of an aid measure with the internal market. First, such an obligation exists in the case of notification by the Member State providing the aid. Thus, the first subparagraph of Article 4(1) of that regulation provides that ‘the Commission shall examine the notification as soon as it is received’. Second, the Commission is under an obligation to examine, under the second subparagraph of Article 12(1) of that regulation, in the case of a complaint ‘submitted by any interested party in accordance with Article 24(2) [of that regulation]’.

51 In the present case, it is common ground that the aid resulting from pricing orders 2006, 1/2010 and 8/2010 was not notified to the Commission by the French Republic. In addition, it must be stated that the complaint submitted by the applicants on 20 June 2020 does not fall within the scope of Article 24(2) of Regulation 2015/1589. In those circumstances, the Commission was not required to examine the abovementioned aid measures. Accordingly, the fact that there is no decision on its part in respect of those aid measures cannot constitute a denial of justice liable to create a legal vacuum. That is all the more true since, as has been pointed out in paragraphs 29 and 30 above, the applicants may bring proceedings before the courts of the Member State concerned in order to have a penalty imposed on that Member State on account of its refusal to notify the measures complained of, assuming that those courts find that those measures are to be classified as new State aid.

52 In that regard, it should be noted that the prohibition on implementation of planned aid laid down in the last sentence of Article 108(3) TFEU has direct effect. The immediate enforceability of the prohibition on implementation referred to in that provision extends to all aid which has been implemented without being notified (see judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 29 and the case-law cited). Furthermore, it is for the national authorities to recover on their own initiative all aid that was unlawfully granted (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 92).

53 In the light of that clear legal framework as regards the scheme of new State aid granted without prior notification and the fact that there is no individual right under EU law for existing and potential beneficiaries to be granted aid by a Member State where there is no notification by that Member State, the absence of a Commission decision on the compatibility of such unlawful aid cannot undermine the principle of legal certainty either.

54 In the light of the foregoing, the third plea must be rejected and, ultimately, the action must be dismissed in its entirety.

Costs

55 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the action;

2. Orders Solar Electric Holding, Solar Electric Guyane, Solar Electric Martinique and Société de production d’énergies renouvelables to pay the costs.