FVE Holýšov I s. r. o. and Others v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:740
• Docket Number: C-850/19
• Date: 16 September 2021
• Celex Number: 62019CJ0850
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (First Chamber)

16 September 2021 (*)

(Appeal – State aid – Renewable energy support scheme – Decision declaring the aid scheme compatible with the internal market – Action for annulment)

In Case C‑850/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 November 2019,

FVE Holýšov I s. r. o., established in Prague (Czech Republic),

FVE Stříbro s. r. o., established in Prague,

FVE Úsilné s. r. o., established in Prague,

FVE Mozolov s. r. o., established in Prague,

FVE Osečná s. r. o., established in Prague,

Solarpark Rybníček s. r. o., established in Prague,

FVE Knĕžmost s. r. o., established in Dolní Poustevna (Czech Republic),

Hutira FVE – Omice a.s., established in Brno (Czech Republic),

Exit 90 SPV s. r. o., established in Prague,

Onyx Energy s. r. o., established in Prague,

Onyx Energy projekt II s. r. o., established in Prague,

Photon SPV 1 s. r. o., established in Prague,

Photon SPV 3 s. r. o., established in Prague,

Photon SPV 4 s. r. o., established in Prague,

Photon SPV 6 s. r. o., established in Prague,

Photon SPV 8 s. r. o., established in Prague,

Photon SPV 10 s. r. o., established in Prague,

Photon SPV 11 s. r. o., established in Prague,

Antaris GmbH, established in Waldaschaff (Germany),

Michael Göde, residing in Aschaffenbourg (Germany),

NGL Business Europe Ltd, established in Larnaca (Cyprus),

NIG NV, established in Amsterdam (Netherlands),

GIHG Ltd, established in Nicosia (Cyprus),

Radiance Energy Holding Sàrl, established in Luxembourg (Luxembourg),

ICW Europe Investments Ltd, established in London (United Kingdom),

Photovoltaik Knopf Betriebs-GmbH, established in Fürstenfeldbruck (Germany),

Voltaic Network GmbH, established in Berlin (Germany),

WA Investments-Europa Nova Ltd, established in Nicosia, represented by A. Reuter, H. Wendt, C. Bürger, T. Christner, A. Compes, T. Herbold and W. Schumacher, Rechtsanwälte,

appellants,

supported by:

Federal Republic of Germany, represented by J. Möller and D. Klebs, acting as Agents,

intervener in the appeal,

the other parties to the proceedings being:

European Commission, represented by L. Armati, P. Němečková and T. Maxian Rusche, acting as Agents,

defendant at first instance,

supported by:

Republic of Poland, represented by B. Majczyna, acting as Agent,

intervener in the appeal,

Czech Republic, represented by M. Smolek, J. Vláčil, T. Müller and I. Gavrilova, acting as Agents,

Kingdom of Spain, represented by S. Centeno Huerta, acting as Agent,

Republic of Cyprus,

Slovak Republic, represented by B. Ricziová, acting as Agent,

interveners at first instance,

THE COURT (First Chamber),

composed of J.-C. Bonichot (Rapporteur), President of the Chamber, L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

By their appeal, FVE Holýšov I s. r. o., FVE Stříbro s. r. o., FVE Úsilné s. r. o., FVE Mozolov s. r. o., FVE Osečná s. r. o., Solarpark Rybníček s. r. o., FVE Knĕžmost s. r. o., Hutira FVE – Omice a.s., Exit 90 SPV s. r. o., Onyx Energy s. r. o., Onyx Energy projekt II s. r. o., Photon SPV 1 s. r. o., Photon SPV 3 s. r .o., Photon SPV 4 s. r. o., Photon SPV 6 s. r. o., Photon SPV 8 s. r. o., Photon SPV 10 s. r. o., Photon SPV 11 s. r. o., Antaris GmbH, Michael Göde, NGL Business Europe Ltd, NIG NV, GIHG Ltd, Radiance Energy Holding Sàrl, ICW Europe Investments Ltd, Photovoltaik Knopf Betriebs-GmbH, Voltaic Network GmbH and WA Investments-Europa Nova Ltd seek to set aside the judgment of the General Court of the European Union of 20 September 2019, FVE Holýšov I and Others v Commission (T‑217/17, not published, ‘the judgment under appeal’, EU:T:2019:633), by which the General Court dismissed their action seeking partial annulment of Commission Decision C(2016) 7827 final of 28 November 2016 on State aid SA.40171 (2015/NN) concerning the promotion of electricity production from renewable energy sources (‘the decision at issue’).

1 By its cross-appeal, the European Commission asks the Court of Justice to annul the decision contained in paragraph 174 of the judgment under appeal, not to rule on the admissibility of the action and to declare the action inadmissible.

Background to the dispute and the decision at issue

2 The background to the dispute and the content of the decision at issue were set out as follows in paragraphs 1 to 19 of the judgment under appeal:

‘1 By a letter dated 16 December 2003, two Czech associations active in the renewable energy sector, the Czech Society for Wind Energy and Eurosolar, sent a complaint to the Commission of the European Communities, concerning, inter alia, a draft law of the Czech Republic seeking to promote electricity generated from renewable energy sources (“RES”), the nature of that draft law being – they claimed – contrary to the EU State aid rules, and asking the Commission to contact the Czech authorities in order that they would notify the proposed aid scheme. The Commission informed the [complainants], by a letter dated 27 July 2004 (“the 2004 letter”), that, on the basis of the evidence in its possession, it considered that the proposed promotion system did not constitute State aid within the meaning of Article 107(1) TFEU, as it did not involve State resources.

2 The draft law referred to in paragraph 1 above was adopted as the Zákon o podpoře výroby elektřiny z obnovitelných zdrojů energie a o změně některých zákonů (zákon o podpoře využívání obnovitelných zdrojů) (Law on the support of the production of electricity from [renewable energy sources] and amending various laws), of 31 March 2005 (180/2005 Sb.) (“the initial scheme”).

3 The initial scheme established a number of measures for operators using electricity-generating facilities from RES (“the producers concerned”), including photovoltaic installations.

4 The measures established by the initial scheme, guaranteed during the life of the installations (20 years for photovoltaic installations), could take two forms:

– – either, for the producers concerned who chose to sell all the electricity which they produced to an operator of the electricity network, that of a minimum purchase price, set annually by the Energetický regulační úřad (Czech Energy Regulatory Office, “ERO”), established on the basis of, inter alia, the investment and operating costs of photovoltaic installations, which were to be recovered during the first 15 years of operation, the five remaining years constituting accordingly those producers’ profit (“the purchase price”). Any potential reduction of the purchase price compared to that fixed in the previous year was subject to a 5% cap (“the 5% cap”); in other words, the purchase price for a given RES-based technology implemented in a given year could not be less than 95% of the previous year’s purchase price for the same technology;

– – or that of a “green bonus” which represents a supplement to the market price for the producers concerned who chose to sell their electricity on the market.

5 The measures introduced by the initial scheme were financed exclusively by a special levy (“the RES levy”), in the form of a surcharge on electricity transmission and electricity distribution tariffs, paid by electricity end customers to the electricity transmission system operator […] and the regional electricity distribution companies […], with the result that end customers fully bore the burden of financing of those measures. That levy was imposed by the decree adopted by ERO and its amount determined by the latter by means of price decisions.

6 In 2010, the Czech Republic amended the initial scheme, on three occasions, on 21 April, 30 November and 14 December. The Czech Republic highlighted the fact that the initial scheme thus amended (“the amended scheme”) was intended to avoid the risk of overcompensation, connected with the combined effect of the 5% cap and the decline in costs of photovoltaic installations, which has been higher than 5% for some years.

7 Consequently, with effect from 1 January 2011, the Czech Republic imposed on the producers concerned, inter alia, a levy known as “solar levy”, on the purchase prices and the green bonuses, granted to photovoltaic installations commissioned between 1 January 2009 and 31 December 2010 (except for certain small plants, with an operational capacity of less than 30 kilowatts).

8 The solar levy was equal to 26% of the purchase price for the period covering the years 2011 to 2013 and 10% of the purchase price from 1 January 2014. At the same time, the green bonus referred to in paragraph 4 above was taxed at 28% for the period covering the years 2011 to 2013 and 11% from 1 January 2014.

9 Other measures were also adopted under the amended scheme. Accordingly, the 5% cap was abolished for certain installations brought into service after 1 January 2011 and, on 31 December 2010, it put an end to the exemption from income tax, which had originally to be applicable for a period of 6 years.

10 The amended scheme therefore had the effect of reducing the benefits of the measures granted to the producers concerned using photovoltaic installations by way of the promotion of electricity production from RES.

11 From 1 January 2011, the amended scheme was financed partly by means of the RES levy and partly by the State budget.

12 On 11 December 2014, the Czech Republic, pursuant to Article 108(3) TFEU, notified the Commission of the support scheme for electricity production from RES, produced by installations commissioned between 1 January 2006 and 31 December 2012.

13 On 28 November 2016, the Commission adopted [the decision at issue], a summary of which was published in the Official Journal of the European Union (OJ 2017...