Judgment of the General Court First Chamber, 21 December 2022, Ekobulkos v Commission, T-702/21

• Date: 21 December 2022
• Year: 2022

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However, in so far as the action brought by the applicant relates exclusively to the legality of the

contested decision, by which the Commission declared the notified federal scheme compatible with

Article 107(2)(b) TFEU, the application by the German authorities of an additional eligibility

requirement which is not expressly or implicitly mentioned in that scheme is not relevant to the

present proceedings.

In the light of the foregoing, and of Article 2(2) of the federal compensation scheme, as declared

compatible with Article 107(2)(b) TFEU in the contested decision, the applicant was eligible for aid

under that scheme. Thus, the Court finds that the annulment of that decision would not procure any

advantage for the applicant. Consequently, it dismisses its action as inadmissible for lack of interest in

bringing proceedings.

The General Court adds, however, that it is open to the applicant to bring an action before the

German courts, which will have to examine, if necessary after having referred a question to the Court

of Justice for a preliminary ruling, whether the addition of a supplementary eligibility requirement by

the German authorities is akin to the alteration of existing aid, and, therefore, to new aid subject to

the notification obligation under Article 108(3) TFEU.

Judgment of the General Court (First Chamber), 21 December 2022, Ekobulkos v

Commission, T-702/21

Link to the full text of the judgment

State aid – Production of electricity from renewable sources – Complaint – Action for failure to act – Call to

act – Admissibility – Obligation to act – None

The company Ekobulkos EEOD is a Bulgarian electricity producer which operates a photovoltaic power

plant put into operation on 19 May 2012.

By decision of 4 August 2016,

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the European Commission took the view that the Bulgarian aid

scheme for renewable energy production, notified by the Bulgarian authorities,

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was compatible

with the internal market in accordance with Article 107(3)(c) TFEU, and decided not to raise any

objections.

The scheme thus approved laid down, inter alia, the conditions under which producers of electricity

from renewable sources could benefit from preferential purchase prices. Those conditions were

amended in 2015, inter alia, by the introduction of anti-cumulation rules (‘the measure at issue’).

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More specifically, in order to eliminate any risk of overcompensation, those rules required, when

setting the level of support, where necessary, a reduction in the preferential purchase price by

deducting the amount of investment aid received on the basis of an application submitted before

3 May 2011, the date on which the law introducing the scheme in question entered into force.

On 21 February 2020, Ekobulkos submitted a complaint to the Commission in which it claimed that

the Republic of Bulgaria had granted certain producers of electricity from renewable sources State aid

that was unlawful and incompatible with the internal market by giving them the benefit of preferential

purchase prices which were exempt from any reductions under the measure at issue. In support of its

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Decision C(2016) 5205 final of 4 August 2016 in Case SA.44840 (2016/NN).

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As notified, that scheme consisted of the Zakon za energiata ot vazobnovyaemi iztochnitsi (ZEVI) (Law on energy from renewable sources), in

force since 3 May 2011 (DV No 35 of 3 May 2011), and two regulations of 18 March 2013 on the regulation of electricity prices and of

20 February 2004 on the regulation of electricity prices.

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The present case concerns Paragraph 18 of the Zakon za izmenenie i dopalnenie na Zakona za energetikata (ZID-ZE) (Law amending and

supplementing the Law on Energy) of 24 July 2015 (DV No 56 of 24 July 2015).