Castelnou Energía, SL v European Commission.

• Jurisdiction: European Union
• Celex Number: 62011TJ0057
• ECLI: ECLI:EU:T:2014:1021
• Court: General Court (European Union)
• Docket Number: T‑57/11
• Date: 03 December 2014
• Procedure Type: Recurso de anulación - infundado

JUDGMENT OF THE GENERAL COURT (Second Chamber)

3 December 2014 ( *1 )

‛State aid — Electricity — Compensation for additional production costs — Public service obligation to produce certain volumes of electricity from indigenous coal — Preferential dispatch mechanism — Decision not to raise objections — Decision declaring the aid compatible with the internal market — Action for annulment — Individual concern — Significant effect on a competitive position — Admissibility — Failure to initiate formal investigation procedure — Serious difficulties — Service of general economic interest — Security of electricity supply — Article 11(4) of Directive 2003/54/EC — Free movement of goods — Protection of the environment — Directive 2003/87/EC’

In Case T‑57/11,

Castelnou Energía, SL, established in Madrid (Spain), represented initially by E. Garayar Gutiérrez, subsequently by C. Fernández Vicién, A. Pereda Miquel and C. del Pozo de la Cuadra, then by C. Fernández Vicién, L. Pérez de Ayala Becerril and D. Antón Vega and finally by C. Fernández Vicién, L. Pérez de Ayala Becerril and C. Vila Gisbert, lawyers,

applicant,

supported by

Greenpeace-España, established in Madrid (Spain), represented initially by N. Ersbøll, S. Rating and A. Criscuolo, and subsequently by N. Ersbøll and S. Rating, lawyers,

intervener,

v

European Commission, represented by É. Gippini Fournier and C. Urraca Caviedes, acting as Agents,

defendant,

supported by

Kingdom of Spain, represented initially by J. Rodríguez Cárcamo, subsequently by M. Muñoz Pérez and N. Díaz Abad, then by N. Díaz Abad and S. Centeno Huerta and finally by A. Rubio González and M. Sampol Pucurull, abogados del Estado,

by

Hidroeléctrica del Cantábrico, SA, established in Oviedo (Spain), represented by J. Álvarez de Toledo Saavedra and J. Portomeñe López, lawyers,

by

E.ON Generación, SL, established in Santander (Spain), represented initially by E. Sebastián de Erice Malo de Molina and S. Rodríguez Bajón, and subsequently by S. Rodríguez Bajón, lawyers,

by

Comunidad Autónoma de Castilla y León, represented initially by K. Desai, solicitor, S. Cisnal de Ugarte and M. Peristeraki, lawyers, and subsequently by S. Cisnal de Ugarte,

and by

Federación Nacional de Empresarios de Minas de Carbón (Carbunión), established in Madrid (Spain), represented initially by K. Desai, solicitor, S. Cisnal de Ugarte and M. Peristeraki, lawyers, and subsequently by S. Cisnal de Ugarte and A. Baumann, lawyers,

interveners,

APPLICATION for annulment of Commission Decision C(2010) 4499 of 29 September 2010 concerning State aid N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism for indigenous coal power plants,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 September 2014,

gives the following

Judgment

Background to the dispute

1 By Decision C(2010) 4499 of 29 September 2010 concerning State aid N 178/2010 notified by the Kingdom of Spain in favour of electrical energy production from indigenous coal (‘the contested decision’), the European Commission, in essence, authorised the aid provided for in Real Decreto 134/2010, de 12 de febrero, por el que se establece el procedimiento de resolución de restricciones por garantía de suministro y se modifica el Real Decreto 2019/1997, de 26 de diciembre, por el que se organiza y regula el mercado de producción de energía eléctrica (Royal Decree 134/2010 of 12 February 2010 establishing the procedure for resolving restrictions for the purpose of ensuring security of supply, and amending Royal Decree 2019/1997 of 26 December 2010 organising and regulating the electricity generation market, BOE No 51, 27 February 2010, p. 19123), and in the draft amendments which led to the adoption, after the contested decision, of Real Decreto 1221/2010, de 1 de octubre, por el que se modifica el Real Decreto 134/2010 y se modifica el Real Decreto 2019/1997, de 26 de diciembre, por el que se organiza y regula el mercado de producción de energía eléctrica (Royal Decree 1221/2010 of 1 October 2010 amending Royal Decree 134/2010 and amending Royal Decree 2019/1997 of 26 December 2010 organising and regulating the electricity generation market, BOE No 239, 2 October 2010, p. 83983) (‘the contested measure’).

2 Under the contested measure, the ten electricity power plants identified in Annex II to Royal Decree 134/2010 are required to source ‘indigenous’ coal (i.e. coal of Spanish origin), the price of which is higher than that of other fuels, and to produce certain volumes of electricity from that coal (23.35 TWh per year).

3 In order to overcome the difficulties in accessing the daily market for the sale of electricity faced by the power plants benefitting from the measure, given the high price of the coal which they are required to use, the contested measure introduced a ‘preferential dispatch mechanism’. The preferential dispatch mechanism provides, in essence, that the electricity produced by those power plants must be bought in preference to the electricity produced by power plants using imported coal, fuel-oil or natural gas and by those operating on a combined cycle, which is withdrawn from the daily energy market in order to ensure the sale on that market of electricity volumes produced from indigenous coal by the beneficiary power plants.

4 The owners of the beneficiary power plants receive compensation equal to the difference between the additional production costs which they have incurred and the sale price on the daily electricity market. Annex II to Royal Decree 134/2010 establishes the method for calculating that compensation and the method for setting the volumes of electricity which the beneficiary power plants must produce annually. The mechanism is financed through a State-controlled fund. The planned annual expenditure is EUR 400 million.

5 It is provided that the contested measure will expire on 31 December 2014 at the latest.

6 After engaging in pre-notification contacts, which began in January 2010, the Kingdom of Spain formally notified the contested measure to the Commission (paragraphs 1, 7 and 11 of the contested decision) pursuant to Article 108(3) TFEU.

7 The Commission considered that the requirements imposed by the contested measure on the owners of the beneficiary power plants were in keeping with the operation of a service of general economic interest (‘SGEI’) justified on the ground of safeguarding security of electricity supply (paragraphs 77 to 103 of the contested decision), and concluded that the measure constituted State aid since it did not satisfy the fourth condition set out in the judgment of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, ECR, EU:C:2003:415) relating to the method for determining the level of compensation for discharging public service obligations (paragraphs 104 to 127 of the contested decision). However, the Commission declared the aid at issue compatible with the internal market under Article 106(2) TFEU, according to which ‘[u]ndertakings entrusted with the operation of [SGEIs] ... shall be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them’ (paragraphs 128 to 163 of the contested decision).

8 Therefore, the Commission decided, on the basis of Article 4(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), not to raise objections to that State aid.

Procedure and forms of order sought by the parties

9 By application lodged at the Registry of the General Court on 27 January 2011, the applicant, Castelnou Energía SL, brought the present action.

10 By documents lodged at the Registry of the General Court on 3 and 17 March and 13 and 14 April 2011, the Kingdom of Spain, Hidroeléctrica del Cantábrico SA, E.ON Generación SL, the Comunidad Autónoma de Castilla y León and the Federación Nacional de Empresarios de Minas de Carbón (Carbunión) sought leave to intervene in support of the form of order sought by the Commission in the present case. By document lodged at the Registry of the General Court on 3 May 2011, Greenpeace-España sought leave to intervene in support of the form of order sought by the applicant.

11 The applicant requested confidential treatment, vis-à-vis those interveners, of certain elements of the application, the reply and the corrigendum to the reply, and of certain elements of the statement in intervention of the Kingdom of Spain.

12 By orders of 13 July 2011 of the President of the Eighth Chamber of the General Court, the Kingdom of Spain, Hidroeléctrica del Cantábrico, E.ON Generación, the Comunidad Autónoma de Castilla y León and Carbunión were granted leave to intervene in support of the form of order sought by the Commission. The decision on the merits of the requests for confidentiality was reserved.

13 The Kingdom of Spain and Hidroeléctrica del Cantábrico requested confidential treatment, vis-à-vis the other interveners, of certain elements of their respective statements in intervention.

14 By order of 6 November 2012, the President of the Eighth Chamber of the General Court granted Greenpeace-España leave to intervene in support of the form of order sought by...