Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 13 July 2023 (1)

Joined Cases C‑693/21 P and C‑698/21 P

EDP España, SA

v

Naturgy Energy Group, SA, formerly Gas Natural SDG, SA,

European Commission (C‑693/21 P)

and

Naturgy Energy Group, SA, formerly Gas Natural SDG, SA

v

European Commission (C‑698/21 P)

(Appeal – State aid – Environmental incentive adopted by Spain in favour of coal-fired power plants – Decision to initiate the formal investigation procedure – Duty to state reasons – Action for annulment)

1.        In two joined appeals, EDP España (Case C‑693/21 P) and Naturgy Energy Group (Case C‑698/21 P) (‘the appellants’) ask the Court to set aside the judgment of the General Court of the European Union of 8 September 2021, Naturgy Energy Group v Commission (2) (the ‘judgment under appeal’), by which the General Court dismissed the application for annulment of Commission Decision C(2017) 7733 final of 27 November 2017 on State aid SA.47912 (2017/NN) – Environmental incentive measure adopted by Spain in favour of coal-fired power plants (‘the decision at issue’).

I.      Legal framework

2.        Article 4(4) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (3) provides:

‘Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the internal market of a notified measure, it shall decide to initiate proceedings pursuant to Article 108(2) TFEU (“decision to initiate the formal investigation procedure”).’

3.        Article 6(1) of the regulation reads:

‘The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the common market. The decision shall call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which shall normally not exceed 1 month. In duly justified cases, the Commission may extend the prescribed period.’

4.        Article 9(1) and (2) of the regulation states:

‘1.      Without prejudice to Article 10, the formal investigation procedure shall be closed by means of a decision as provided for in paragraphs 2 to 5 of this Article.

2.      Where the Commission finds that, where appropriate following modification by the Member State concerned, the notified measure does not constitute aid, it shall record that finding by way of a decision.’

II.    Background to the dispute

5.        Between 1998 and 2007, every electricity generating plant in Spain was entitled to a remuneration known as the ‘power guarantee’, irrespective of the technology used, in order to encourage the establishment and maintenance of generation capacity in the electricity system and to guarantee a reliable supply. Renewable energy installations, however, did not benefit from that incentive, and received a specific award.

6.        In 2007, the Spanish Government gave the Minister for Industry, Tourism and Trade the authority to replace the power guarantee with a new tax known as the ‘capacity tax’.

7.        That decision was formalised by Royal Decree 871/2007, (4) which adjusted the electricity tariffs in force as from 1 July 2007. The decree, issued on 29 June 2007, (5) stipulated that the capacity tax would enter into force from 1 October 2007 onwards.

8.        The regulation of electricity tariffs was outlined in Orden ITC/2794/2007, (6) which was issued on 27 September 2007 (7) and entered into force on 1 October 2007 (‘ITC/2794/2007’).

9.        That order sets out the various measures that are to be taken to remunerate capacity by including an incentive to ensure the availability of installations and one to promote investment in production.

10.      The availability incentive is intended to benefit production installations falling under the ordinary regime of the system for the peninsula, with a minimum installed capacity of 50 megawatts (MW). That applies to installations that entered into service after 1 January 1998 and that have not yet been in operation for 10 full years. The purpose of the incentive is to encourage the construction and commissioning of new installations by providing for payments which help to offset investment costs. The amount of remuneration is set at EUR 20 000 per MW per year.

11.      Annex III to ITC/2794/2007 outlines the investment incentives: paragraph 10 states that the Minister for Industry, Tourism and Trade has the competence to approve such measures for investment in production installations that fall under the ordinary regime of the system for the Spanish peninsula and that have an installed capacity of 50 MW or more. Such incentives may be granted for significant investment necessary for the expansion or substantial modification of existing installations, or for investment in new installations in priority technologies in line with energy policy and security of supply objectives.

12.      The measure contained in that text was applied in order to incentivise coal-fired power plants to make ‘environmental’ investments in desulphurisation installations. The conditions for that benefit were laid down in Orden ITC/3860/2007 (8) (‘the contested measure’) of 28 December 2007, (9) which revised the electricity tariffs as from 1 January 2008.

13.      Only coal-fired power plants that are included in the National Emission Reduction Plan for Existing Large Combustion Plants (‘the PNRE-GIC’), approved by the Spanish Council of Ministers on 7 December 2007, and that are also included in the emissions ‘bubble’ defined by the PNRE-GIC, which prescribes the authorised emission quantities per company, are eligible for the above incentive.

14.      In addition, the investments must have been made before 1 October 2007, the date of entry into force of ITC/2794/2007, or the application for approval must have been submitted at least three months before that date.

15.      In 2011, the benefit of the contested measure was extended to cover coal-fired power plants that had made investments not only in desulphurisation installations, but also other ‘environmental’ investments to reduce sulphur oxide emissions, where they had been made before 1 January 2008.

16.      On 29 April 2015 the European Commission started a sector inquiry in 11 Member States, including Spain. Following this inquiry, on 4 April 2017 the Commission informed the Spanish authorities that it had carried out an inquiry into the measure in question, and on 27 November 2017 it decided to initiate a formal investigation into the measure pursuant to Article 108(2) TFEU.

17.      In that decision, the Commission states that it had reached the preliminary conclusion that the contested measure constitutes State aid and expresses doubts as to its compatibility with the internal market. Specifically, the Commission considers that the contested measure constitutes aid to investments made to bring coal-fired power plants into line with Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ 2001 L 309, p.1).

III. The procedure before the General Court and the judgment under appeal

18.      On 28 May 2018, Naturgy Energy Group, formerly known as Gas Natural SDG, a Spanish company active in the energy sector and involved in the generation of electricity from coal, filed an appeal with the General Court Registry. The appeal sought the annulment of the decision that had been challenged by the company.

19.      In those proceedings, EDP España and Viesgo Producción intervened in support of the appellant at first instance.

20.      In the judgment under appeal, the General Court dismissed the applications for annulment on the ground that the first plea, relating to the duty to state reasons for the selective nature of the measure in question, was unfounded.

21.      In paragraph 60 of the judgment under appeal, the General Court drew attention to the fact that, pursuant to Regulation 2015/1589, the formal investigation procedure may be initiated by summarising the relevant issues of fact and law relating to the State measure, together with a preliminary assessment of the measure in question in order to identify whether it can be classified as aid and setting out the doubts as to its compatibility with the internal market.

22.      In paragraph 61 of the judgment under appeal, the General Court added that the Commission was required to initiate the formal investigation procedure if a preliminary examination did not enable it to overcome all the difficulties raised by the question as to whether or not the measure at issue constituted aid for the purposes of Article 107(1) TFEU.

23.      In paragraph 62 of the judgment under appeal, the General Court recalled that the purpose of the decision to initiate the formal investigation procedure was to allow the interested parties to actively participate in that procedure. It also clarified that the decision included preliminary assessments and that the Commission was not obliged to clarify all potential unresolved issues at that initial stage.

24.      In paragraph 63 of the judgment under appeal, the General Court stated that it was important to remember that the classification of a State measure like that in such a decision is merely provisional. That is confirmed by Article 9(2) of Regulation 2015/1589, which provides that the Commission may determine, at the end of the formal investigation procedure, that the measure in question does not actually constitute aid. Thus, the classification of a State measure as State aid is subject to change and is not necessarily permanent.

25.      The General Court rejected the appellant’s arguments relating to two previous cases (10) in paragraphs 64 and 65 of the judgment under appeal. The court of first instance considered those arguments to be irrelevant since the first case related to a decision to close a formal investigation procedure and the second case did not concern the examination of compliance with the duty to state reasons.

26.      In paragraph 73 of the judgment under appeal, the General Court concluded that, on the basis of the nature, wording, content, context and relevant legal rules concerning the decision at issue, the appellant was in a position to understand the reasons underlying the Commission’s preliminary view that the measure appeared to be selective.

27.      Paragraph 74 of the judgment under appeal relates to the appellant’s argument concerning the Commission’s alleged failure to examine whether the contested measure favoured certain undertakings or goods over others that were in a similar situation as regards the objective pursued by the measure. However, the General Court rejected that argument and explained that such a comparison might be premature at the preliminary examination stage of the formal investigation procedure, pointing out that an analysis on comparability might pre-empt the conclusions of the investigation.

28.      In paragraph 75 of the judgment under appeal, the General Court stated that the argument concerning the selective nature of the measure had not prevented the appellant from presenting exhaustive considerations on the comparability of the situations mentioned in their second plea in law.

29.      In paragraph 76 of the judgment under appeal, the General Court held that it had not been prevented from reviewing the legality of the decision at issue.

30.      Consequently, in paragraph 81 of the judgment under appeal, the General Court dismissed the first plea as unfounded.

31.      Secondly, the General Court dismissed as unfounded the second plea, namely that Article 107(1) TFEU had been infringed in relation to the selectivity of the measure in question.

32.      As a preliminary point, it is important to note that it was made clear in paragraphs 98 and 99 of the judgment under appeal that when an action is brought against a decision to initiate a formal investigation procedure by the Commission regarding the classification of the measure as State aid, the review conducted by the EU judicature is limited to examining whether the Commission has made a manifest error of assessment, being unable to overcome all the obstacles during its preliminary analysis of the measure.

33.      In the judgment under appeal, and in paragraphs 102 to 116 in particular, the General Court examined in detail and ultimately rejected the appellant’s claim that the contested measure was merely intended to equate the relevant investments made after 1998, without taking into account the specific technology used or the type of installations concerned.

34.      In paragraphs 117 to 125 of the judgment under appeal, the General Court also analysed and rejected the appellant’s claim that coal-fired power plants are not similar to power plants that use a different technology.

35.      In paragraph 126 of the judgment under appeal, the General Court thus held that the appellant was unable to provide evidence that the Commission had committed a manifest error of assessment with regard to the comparability analysis.

36.      In paragraphs 128 to 130 of the judgment under appeal, the General Court rejected the arguments of Naturgy Energy Group and EDP España that were based on the judgment in Comunidad Autónoma de Galicia and Retegal v Commission (11)on the ground that that judgment concerned Commission decisions taken at the end of the formal investigation procedure.

37.      In paragraphs 131 to 133 of the judgment under appeal, the General Court also rejected the appellant’s arguments relating to the necessity of the contested measure for security of supply, finding that they related to the assessment of the compatibility of the aid and not to its classification and that, according to settled case-law, Article 107(1) TFEU did not distinguish between the causes or the objectives of State interventions, but defined them in terms of their effects.

38.      In paragraph 134 of the judgment under appeal, the General Court therefore dismissed the second plea in law as unfounded and, consequently, the appeal as a whole.

39.      Finally, the General Court ordered the appellant to pay, in addition to its own costs, those incurred by the Commission and ordered Viesgo Producción and EDP España to bear their own costs.

IV.    Forms of order sought by the parties to the appeal

40.      By their appeal, Naturgy Energy Group (appellant at first instance) and EDP España ask the Court to set aside the judgment under appeal, annul the decision at issue and order the Commission to pay the costs of the proceedings.

41.      In its statement, the Commission asks the Court to dismiss the appeal and order the appellants to pay the costs.

42.      Generaciones Eléctricas Andalucía, originally Viesgo Producción and intervener at first instance, asks the Court to set aside the judgment under appeal.

43.      By order of the President of the Court of Justice of 31 May 2022, Endesa Generación was granted leave to intervene in support of the appellants and requests the Court to set aside the judgment under appeal and order the Commission to pay the costs incurred in these proceedings.

V.      Analysis of the appeal

A.      Preliminary considerations

44.      Although the two grounds of appeal are separate, there are clear connections between them: the first relies on the General Court’s misinterpretation and misapplication of the duty to state reasons in relation to the concept of selectivity, while the second relies on the General Court’s misinterpretation and misapplication of Article 107(1) TFEU in relation to the concept of selectivity.

45.      Articles 107 and 108 TFEU lay down the rules on State aid at the level of primary legislation. Article 107 sets out the general criteria on the basis of which aid may or may not be considered compatible with the internal market, and Article 108 lays down the procedure to be followed by the Commission in assessing whether or not aid is compatible with the internal market. Regulation 2015/1589 contains the detailed rules for the application of Article 108 TFEU and, in particular, in Articles 4 to 9, describes the procedure to be followed for the assessment of aid: preliminary examination (Article 4), decision to initiate the formal investigation procedure (Article 6) and decision to close the formal investigation procedure (Article 9).

46.      In essence, the appellants and interveners criticise the judgment under appeal on the ground that it found the Commission’s decision to be free from defects, whereas they argue that it was deficient in terms of its reasoning. Specifically, the decision to initiate the formal procedure did not provide adequate reasoning with regard to the selectivity of the measure adopted, by failing to carry out an analysis of the comparability of the situations of the beneficiaries of the incentive measure and of other undertakings. In the alternative, by their second ground of appeal, the appellants criticise the judgment under appeal for holding that the classification of the contested measure as aid incompatible with the internal market was correct (because it was not affected by a manifest error of assessment).

47.      The legal question at issue in the present case may be summarised in terms of the Commission’s duty to state reasons in the decision to initiate the formal investigation procedure and, in the alternative and consequently, whether or not it is correct to classify the contested measure as aid incompatible with the internal market. The following issues will be analysed for the purpose of assessing whether the judgment under appeal contains the errors of law alleged by the appellants and interveners: (a) the application of the general principles regarding the statement of reasons for the decision to initiate the formal investigation procedure; (b) the differences in function and content between a decision to initiate a procedure and a decision to close a procedure, with particular reference to the requirements of provisionality and brevity inherent in the decision to initiate a procedure; (c) the need, in the decision to initiate a procedure, to analyse the comparability of the situations of the beneficiaries of the incentive measure and of other undertakings; (d) the apportionment of the burden of proof between the Commission and the parties contesting the decision.

48.      In essence, it will be necessary to assess whether, in its review of the merits of the Commission’s decision to initiate the formal investigation, the General Court correctly applied the general principles regarding the statement of reasons for decisions of EU institutions and, in particular, certain principles developed in relation to State aid; whether, in so doing, it correctly applied those principles to a decision such as the one at issue, in which the Commission, in making an assessment (albeit a provisional one) that a measure was selective, did not carry out an analysis of the comparability of the situations of the beneficiaries of the incentive measure and of other undertakings; whether, in fact, that enabled the parties concerned to exercise their rights of defence in compliance with the rules on the apportionment of the burden of proof applicable to the present case.

B.      The first ground of appeal, alleging infringement of the duty to state reasons

1.      Arguments of the parties

49.      By their first ground of appeal, the appellants allege misinterpretation and misapplication by the General Court of the duty to state reasons with regard to the criterion of selectivity.

50.      The interveners submit that the first ground of appeal is well founded, relying on arguments similar to those of the appellants.

51.      The appellants submit that paragraph  28 of the decision at issue is not a sufficient statement of reasons regarding the existence of the selective nature of the contested measure, particularly since the decision to initiate the formal investigation procedure could have significant legal consequences such as the suspension or recovery of the sums paid on that basis.

52.      Generaciones Eléctricas Andalucía adds that such a decision would not only result in the suspension of the alleged aid payments, but would also give the national courts the authority to take all necessary measures to hold accountable anyone breaching the obligation to suspend the implementation of the measure (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755).

53.      Both the appellants and the interveners also take the view that although the decision at issue is merely a decision to initiate the formal investigation procedure, it should include an analysis of the comparability of the companies involved and clarify, pursuant to Article 296 TFEU, the reason for which the applicable legislation distinguishes between different technologies and how coal-fired power plants are in a factually and legally comparable situation to those that use other technologies.

54.      They submit that the General Court erred in law in paragraphs 64 and 65 of the judgment under appeal in rejecting the arguments based on the judgments of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971), and of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002).

55.      Furthermore, they argue that in paragraph 66 of the judgment under appeal the General Court misinterpreted and misapplied the principles of the judgments of 10 March 2016, HeidelbergCement v Commission (C‑247/14 P, EU:C:2016:149), and of 21 July 2011, Alcoa Trasformazioni v Commission (C‑194/09 P, EU:C:2011:497).

56.      It is therefore necessary to conduct a thorough and well-documented assessment of the selectivity of a measure, based on established legal precedents. That assessment should be sufficiently detailed to allow a full examination by a judge, in particular as regards the assessment of whether the situation of those who benefit from the measure is comparable to those who do not. ‘Sufficient reasons must be stated’ for such assessments to permit full judicial review (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981).

57.      According to the appellants, in paragraph 74 of the judgment under appeal the General Court erred in law in stating that the introduction of a preliminary comparability analysis during the formal investigation procedure would make it difficult to distinguish between the initial decision and the final decision at the end of the procedure.

58.      Generaciones Eléctricas Andalucía also argues that the General Court misunderstood the nature of the Commission’s power to decide to initiate the formal investigation procedure, submitting that it is not a discretionary power but a binding power.

59.      It adds that a ‘mere indication’ is inappropriate in the context of Article 6 of Regulation 2015/1589, which requires the Commission to provide an objective analysis of the potential State aid. The Commission has the burden of proving that a measure may be classified as State aid before it initiates a formal investigation.

60.      Therefore, the Commission should have stated the difficulties which make it necessary to refer to a more thorough analysis.

61.      According to EDP España, in paragraph 73 of the judgment under appeal the General Court recognised the ‘summary’ nature of the Commission’s statement of reasons regarding the selective nature of the measure in question. However, in paragraph 66, it sought to remedy that ‘summary’ nature by holding that the measure in question had been adopted ‘in a context well known to the appellant, given the nature of its activities’ and that, moreover, ‘as is apparent from the appeal’, it was familiar with all the applicable rules.

62.      Lastly, it argues that in paragraphs 68 to 73 of the judgment under appeal the General Court wrongly attempted to remedy the defect in the statement of reasons by reconstructing the reasoning on the basis of various points in the decision at issue.

63.      Thus, EDP España submits that the General Court erred in finding that the Commission had not infringed its duty to state reasons.

64.      The Commission contends that the first ground of appeal must be dismissed as unfounded. It asserts that the General Court correctly analysed the duty to state reasons in the judgment under appeal.

65.      The Commission submits that the General Court did not err in law in paragraphs 63 and 64 of the judgment under appeal in finding the arguments of the appellants and the interveners to be irrelevant. The General Court’s decision was supported by the judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971), in which the Court of Justice did not address the duty to state reasons but focused on the merits of the case. In its judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002), the Court of Justice found that the duty to state reasons had been infringed due to the selectivity of the measure being applied to only one economic sector. However, in the present case, the decision at issue contained a provisional analysis and the Commission did not consider that the measure favoured one sector.

66.      The Commission responds to the appellants’ submission concerning the absence of a comparability analysis by referring to Article 6(1) of Regulation 2015/1589, which states that the decision should provide a summary of the relevant facts and law and include a preliminary assessment. Thus, if the decision satisfies the criteria set out in paragraphs 73 and 76 of the judgment under appeal, the mere brevity of the analysis is not sufficient to constitute an infringement of the duty to state reasons.

67.      The Commission considers that the General Court correctly found that the appellants understood the reasons why the contested measure was considered selective, as set out in paragraph 75 of the judgment under appeal.

68.      It submits that the legal consequences associated with the initiation of the formal investigation procedure referred to are hypothetical in the present case and do not preclude a preliminary and succinct statement of reasons pursuant to Article 6(1) of Regulation 2015/1589.

69.      The Commission adds that the decision at issue was analysed by the General Court, which referred to other elements in the statement of reasons for the decision at issue in support of its analysis. The Court of Justice has also recognised that a specific structure is not required for Commission decisions and that the content of the decision in its entirety should be examined when assessing compliance with the duty to state reasons (judgment of 25 July 2018, Commission v Spain and Others, C‑128/16 P, EU:C:2018:591, paragraph 93).

2.      Assessment

70.      By their first ground of appeal, the appellants allege an error of law by the General Court in its review of the statement of reasons for the decision at issue as regards the selective nature of the contested measure.

71.      With regard to the issue that is the subject of the first ground of appeal, the General Court states, in the judgment under appeal, in essence, that a decision to initiate the formal investigation procedure may be confined to summarising the relevant elements of fact and law and contains provisional assessments that will be the subject of in-depth consideration in the procedure itself.

72.      Those statements are correct and may be accepted. However, the General Court, probably on the assumption of a radical difference in the function and content (including in terms of the statement of reasons) between the decision to initiate the procedure and the decision to close the procedure, draws certain consequences from those statements that, in my opinion, are erroneous and contrary to the logic of the legal process.

73.      The General Court states that certain of the Court’s precedents are not applicable to the present case because they relate to a decision to close the procedure (12) or to situations in which the specific aspect of the duty to state reasons was not examined; (13) that, despite its conciseness, the statement of reasons for the Commission’s decision was adequately reasoned because the parties were able to understand the reasons underlying that decision, as the subsequent defences showed, and because it was adopted in a context well known to the parties; that an analysis of comparability between the various undertakings in order to establish the selectivity of the measure would have been premature in a decision to initiate the procedure because it might have pre-empted the conclusions to be drawn at the end of the procedure.

74.      According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must set out clearly and unequivocally the reasoning of the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure adopted and to enable the Court of Justice to review its legality. The duty to state reasons must be assessed in the light of all the circumstances of the case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure or other parties to whom it is of direct and individual concern may have in obtaining explanations. The statement of reasons is not required to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 16).

75.      When applying this principle to the Commission’s actions with regard to State aid, it should be noted that the decision to initiate the formal investigation procedure is not a measure in which the duty to state reasons is particularly trivial or superficial.

76.      A careful reading of Articles 4, 6 and 7 of Regulation 2015/1589 reveals how the decision to initiate the procedure is dependent, in terms of both time and logic, upon a preliminary examination: that is to say, the Commission carries out an investigation with the State concerned in which the elements capable of classifying a particular measure as aid are analysed and concludes, albeit on a provisional basis, that there are doubts as to the compatibility with the internal market of the measure under consideration. If the Commission does not reach such a conclusion, it closes the procedure with a decision not to raise any objections.

77.      The decision to initiate the formal investigation procedure is therefore not the first act following which all the elements that might lead to a particular measure being classified as prohibited aid will be analysed, but constitutes a subsequent stage at which the Commission, having carried out a preliminary examination, has ‘concluded’, albeit on a provisional basis, that there are doubts as to the compatibility of the measure with the internal market. The procedure following the decision to initiate the procedure will serve to enable all persons concerned to exercise their rights of defence by putting forward arguments to counter the legal arguments put forward by the Commission in classifying (albeit on a provisional basis) a particular measure as incompatible with the internal market.

78.      It follows that, in view of all the circumstances of the case, the Commission must set out in the decision to initiate the procedure all the arguments and legal grounds on the basis of which it considers the measure to be incompatible with the internal market, and that it cannot postpone its analysis to a later stage.

79.      The provisional nature of the assessment must not be understood as implying that it is superficial, nor must it result in the omission of analyses, tests or comparisons that are possible when initiating the procedure.

80.      Only in the event that it is impossible, in specific technically complex cases, to carry out a certain analysis requiring factual elements that may only be obtained as part of the procedure, following its initiation, may the Commission, giving reasons for its actions, postpone the analysis, test or assessment until the time of the final decision.

81.      For those reasons, the decision to initiate the procedure, as repeatedly argued by the appellants and interveners, is an important one in and of itself and may have a specific and significant effect on the economic interests of the parties. The initiation of a formal investigation procedure concerning State aid makes it mandatory to suspend payments of the alleged aid and empowers the national courts to take the necessary measures to act to penalise any infringement of the obligation to suspend the contested measure. (14)

82.      For the same reasons, the applicability or non-applicability of the principles set out in the case-law on aid must be carefully examined: it is not possible to dismiss as inapplicable certain principles set out in cases in which decisions to close the formal investigation procedure were analysed.

83.      The decision to initiate the procedure and the decision to close it, provided for in Articles 6 and 9 of Regulation 2015/1589, are undoubtedly different and perform different functions. For the reasons set out above, however, no assessment of the principles set out by the Court of Justice may be omitted merely because those principles relate to a closure procedure.

84.      The function of the procedure following the initiation is to enable the parties to convince the Commission to change its mind about the initial argument set out in the decision to initiate the procedure, to the effect that a specific measure constitutes aid incompatible with the internal market.

85.      In the judgment in Comunidad Autόnoma, the Court of Justice found an infringement of the duty to state reasons, as regards the principle of selectivity, noting that a measure which benefits only one economic sector or only some of the undertakings in that sector is not necessarily selective and that it is so only if, within the context of a particular legal system, it has the effect of conferring an advantage on certain undertakings over others, belonging to other sectors or to the same sector, and which are, in the light of the objective pursued by that system, in a comparable factual and legal situation. (15)

86.      Although the judgment in Comunidad Autόnoma concerns a Commission decision adopted at the end of the formal procedure, it is important to note that the Court of Justice relies on principles derived from the judgment in Lübeck, (16) which concerned a decision to initiate a formal investigation procedure.

87.      It also follows from this that the Commission could, and indeed should, have carried out an analysis of comparability between different undertakings in the sector. The General Court’s assertion that ‘to impose, in any event, at the preliminary analysis stage, contained in a decision to initiate the formal investigation procedure, a statement of reasons concerning the comparability of situations could be premature and could pre-empt the conclusions to be drawn at the end of that procedure’ is therefore erroneous; the risk feared is that there would be ‘a blurring of the boundary between the decision to initiate the formal investigation procedure and the decision to close that procedure’. (17)

88.      In my view, the Commission has a duty to specify, including at the stage of initiating the formal investigation procedure, the reasons for which the fact that a measure benefits only certain undertakings in a sector makes it possible to consider it, a priori, selective, and it cannot omit, in that context, even a preliminary examination of the comparability of the undertakings benefiting from the measure with those, active in the same sector, that do not benefit from it.

89.      As to the General Court’s assertion that the parties were well aware of the context and also defended themselves on the point regarding comparison with other undertakings, I consider that the General Court made an error of law that adversely impacts the apportionment of the burden of proof and also affects the second ground of appeal. (18)

90.      In the decision to initiate the procedure, the Commission must carry out all the relevant analyses to allow the parties to attempt to counter the legal arguments that (provisionally) qualify the measure adopted by the Member State as State aid incompatible with the internal market.

91.      It would be contrary to the usual apportionment of the burden of proof to make the parties responsible for reconstructing, indirectly or by extrapolation, the legal arguments put forward by the Commission, in order to subsequently refute them.

92.      The Commission should therefore have analysed the comparability of the situations of the operators in the market, presenting all the arguments necessary to support the allegation of State aid, incompatible with the internal market, albeit as a provisional analysis that might be modified in the course of the formal investigation procedure.

93.      In the judgment in Deutsche Post v Commission, (19) concerning a decision to extend a formal procedure that was found to be vitiated by a failure to state reasons, it was made clear that, on completion of the preliminary assessment of the measure, the Commission must give reasons for its decision if it decides to initiate a formal investigation procedure. (20)

94.      Furthermore, in the same judgment, the General Court states that ‘any decision that the Commission makes on completion of the preliminary examination phase must include a preliminary assessment as to whether the State measure in question is in the nature of State aid.’ (21)

95.      The comparability analysis can therefore never be left to the formal investigation procedure, as it is always possible to draw conclusions, albeit provisional ones.

96.      Although the Commission rightly states that it is essential to consider the content of a decision in its entirety in order to assess its reasoning, (22) it must be noted that the decision at issue is entirely devoid of a comparability analysis.

97.      In the light of the foregoing, I consider that the first ground of appeal may be upheld.

C.      The second ground of appeal, alleging infringement of Article 107(1) TFEU as regards the selectivity criterion

1.      Arguments of the parties

98.      By the second ground of appeal, the parties allege infringement of Article 107(1) TFEU as regards the selectivity criterion.

99.      The interveners submit that the second ground of appeal is well founded, relying on arguments similar to those of the appellants.

100. Naturgy Energy Group criticises the General Court with reference to paragraph 82 of the judgment under appeal, pointing out that the appellant had submitted that the Commission had made a manifest error in assessing the selective nature of the measure at issue.

101. The argument put forward by the appellants and the interveners is that the General Court should have carried out a comprehensive review of the Commission’s analysis of the selectivity of the measure in question (Naturgy cites the judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 111). In that regard, the appellants refer to the analysis of the Court of Justice in the judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971), in which the Court found an error of law and not a manifest error of assessment as regards the selectivity of a measure that had been the subject of a decision to initiate a formal investigation procedure.

102. According to Naturgy Energy Group, the General Court erred in law by comparing investments before and after 1998 instead of determining whether paragraph 10(2) of Annex III to ITC/2794/2007 constitutes a selective measure. In its view, that provision allows the government to contribute to all power plants, irrespective of their technology, for significant investments.

103. As regards the comparability of the situations of coal-fired power plants and power plants that do not use coal as their main fuel, the appellants and interveners argue that, in addition to committing an error of law in carrying out a review for manifest errors, the General Court, in paragraphs 102 to 126 of the judgment under appeal, reversed the burden of proof when it held that the appellant should have proved the absence of discrimination in relation to power plants not using coal as their main fuel (judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 62).

104. They argue that the Commission should have the task of identifying cases of discrimination, even if its analysis is merely a preliminary one. That includes the identification of cases similar to those mentioned in paragraphs 121 and 124 of the judgment under appeal, as noted by the General Court.

105. EDP España points out, in particular, that the General Court recognised that the analysis of whether it was appropriate to initiate a formal investigation procedure cannot be limited to identifying manifest errors of assessment, but must go beyond that (judgment of 8 September 2021, Achema and Achema Gas Trade v Commission, T‑193/19, not published, EU:T:2021:558, paragraphs 43 and 44).

106. Therefore, if the General Court had carried out a review of legality in accordance with the case-law of EU judicial bodies, it would, in its view, have reached the same conclusion in the judgment under appeal.

107. Endesa Generación considers that if the criterion for assessing whether aid were present was based on a manifest error of assessment, the General Court should have held that the Commission had made a manifest error of assessment in analysing whether or not the contested measure was selective. That is supported by the explanation given in paragraph 28 of the decision at issue.

108. It submits that the judgment under appeal is in any event vitiated by an error of law, in so far as the General Court found that the Commission did not make such an error in the decision at issue when it concluded, on a provisional basis, that the disputed measure was selective on the sole grounds that it applied to certain undertakings and without carrying out the comparability analysis required by the case-law in order to identify the selective nature of the measure.

109. Lastly, Generaciones Eléctricas Andalucía argues that the General Court erred in focusing only on the requirement of a manifest error of assessment, since the consequences of initiating a formal investigation procedure are significant. It submits that the Commission does not have the authority to decide to initiate such a procedure and that it must, rather, confirm that the situations analysed satisfy the selectivity criterion.

110. It further submits that in the judgment under appeal the General Court confused the provisional nature of the analysis in the decision to initiate the formal investigation procedure with the existence of a discretionary power on the Commission’s part.

111. The Commission submits that the second ground of appeal must be rejected as unfounded.

112. It argues that the Spanish law allowing differentiated payments to electricity producers does not affect the selective nature of the measure. Even if power plants built after a specific date may benefit from a return on investment, the measure nonetheless confers a selective advantage of varying amounts (judgment of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraphs 112 and 120). Moreover, only coal-fired plants listed in the PNRE-GIC may benefit from the measure.

113. The Commission submits that it follows from settled case-law that the review of the legality of a decision to initiate a formal investigation procedure is limited to the review of a manifest error of assessment (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 78).

114. It further argues that in order to show that a manifest error was made in the assessment of complex facts that would justify the annulment of the decision, the evidence relied on by the appellants must be sufficient to render the assessments of facts contained in that act implausible and that, subject to that examination of plausibility, it is not for the General Court to substitute its own assessment of the complex facts for that of the author of that decision (judgment of 15 October 2009, Enviro Tech (Europe), C‑425/08, EU:C:2009:635, paragraph 47).

115. Consequently, according to the Commission, it cannot even be argued that the General Court erred in law in its assessment of selectivity if no evidence has been adduced that would render the assessments in the decision at issue implausible. Such a duty to provide evidence is, it argues, inherent in any assessment of manifest error and has nothing to do with the fact that it is for the Commission to show, as a preliminary matter, that the measure is selective.

116. The General Court’s assessment in paragraphs 102 to 126 of the judgment under appeal is fully in accordance with the requisite review of legality based on case-law. The General Court checked the accuracy, reliability and consistency of all the evidence presented, ensuring that all the relevant information was taken into account in the assessment of the complex situation (judgments of 22 November 2007, Spain v Lenzing, C‑525/04 P, EU:C:2007:698, paragraph 57, and of 6 November 2008, Netherlands v Commission, C‑405/07 P, EU:C:2008:613).

117. The claim that the General Court did not correctly assess whether paragraph 10(2) of Annex III to Order ITC/2794/2007 constituted a selective measure is unfounded. That is because the aid was actually granted by means of a subsequent order (Order ITC/3860/2007), as confirmed in the fourth paragraph of the decision at issue and acknowledged by the General Court in paragraph 109 of the judgment under appeal.

118. Naturgy Energy Group has not provided any justification for its claim that the assessments made by the General Court were distorted, in particular in paragraphs 102 to 105 of the judgment under appeal. The Commission submits that the General Court carried out a comprehensive analysis of the national legislation and found that there was no evidence to suggest that the scheme in question was intended to confer an advantage only on large investments made after 1998.

119. The Commission noted that the arguments put forward were not only unfounded, but also unproductive. That is because, according to settled case-law, Article 107(1) TFEU does not distinguish between State measures by reference to their causes or aims, but rather assesses them according to their effects. Thus, the concept of aid is an objective concept and depends primarily on whether or not a State measure confers an advantage on one or more undertakings. Once the existence of aid has been established, the Commission must examine whether the aid is structured in such a way as to ensure that its positive effects in achieving an objective in the public interest outweigh its potential negative effects on trade and competition.

120. Finally, as regards the comparability of coal-fired power plants with power plants that do not use coal as a fuel, and the argument that, in essence, the General Court should have annulled the decision at issue because it does not contain a detailed analysis of the comparability of those two groups of undertakings, the Commission points out that the decision at issue explains that it considers the contested measure to be selective in that it benefits only those coal-fired power plants listed in the PNRE-GIC, as opposed to other coal-fired power plants or power plants using another technology. It concludes that the General Court correctly examined, in paragraphs 117 to 126 of the judgment under appeal, on the basis of the arguments of the appellants and the interveners, whether the Commission had made a manifest error of assessment because coal-fired power plants were not in a comparable factual and legal situation to power plants using other types of technology, and that the General Court correctly held that that conclusion was not called into question by the arguments of the appellants or the interveners.

121. The Commission submits that the burden of proof has therefore not been reversed at any point; the General Court examined whether the Commission’s assessment in the decision at issue was well founded and whether or not the appellants’ arguments rendered it implausible. Accordingly, the appellants have not demonstrated or even argued that the General Court distorted the facts on which it based its findings.

2.      Assessment

122. The second ground of appeal is raised in the alternative in the event that the Court of Justice does not uphold the first ground of appeal. Since I propose that the Court should uphold the first ground of appeal, I will make only a few brief observations on the second, partly because, as mentioned above, the two grounds of appeal are closely linked.

123. By their second ground of appeal, the appellants allege an error of law in the review of the application of Article 107(1) TFEU in relation to the selective nature of the measure at issue.

124. It is clear from the case-law of the Court of Justice that the review of the legality of the classification of a measure as ‘State aid’ by a Commission decision to initiate the formal investigation procedure is limited to ascertaining whether or not the Commission made a manifest error of assessment. (23) The Commission must initiate a formal investigation procedure if it cannot establish that the notified measure is compatible with the internal market or if it entertains doubts as to whether the measure constitutes aid within the meaning of Article 107(1) TFUE. (24)

125. In the same judgment, the Court of Justice stated that when a Member State contends that its measures do not qualify as aid during the Commission’s preliminary analysis, the Commission must conduct a thorough assessment of the question on the basis of the information provided by the Member State, even if the outcome of that examination is not definitive. Moreover, if it is clear, on the basis of the information available at the time when the procedure was initiated, that the measure cannot be classified as new aid, the decision to proceed against that measure must be annulled. (25)

126. Secondly, in paragraph 99 of the judgment under appeal, the General Court held that it was not for it to rule definitively on the manifestly selective nature of the contested measure. (26) The Court of Justice considers that it must avoid giving a final ruling on questions that have been assessed merely on a provisional basis by the Commission. (27)

127. On the basis of that case-law, at first instance the General Court rejects the ‘plea in law’ put forward, alleging an error of law as to the classification of the contested measure as aid, on the basis that the appellants and interveners were not able to establish a manifest error of assessment on the part of the Commission.

128. The critical point in this reasoning may be found in the link I have repeatedly referred to above between the two grounds of appeal: in essence, in the General Court’s view, the Commission had a somewhat limited duty to state reasons in the decision to initiate the procedure which was restricted to the presentation of a concise reconstruction of the facts and points of law with the possibility of postponing a subsequent in-depth analysis to the procedure following the initiation, including an analysis of the comparability of the undertakings benefiting from the measure with those, active in the same sector, not benefiting from it.

129. Next, as regards the extension of the General Court’s scrutiny and the associated burden of proof on the parties concerned to support arguments counter to those of the Commission (to the effect that there were not sufficient elements in place to classify the contested measure as aid incompatible with the internal market), the parties would be required to demonstrate a manifest error of assessment by countering with a wealth of allegations and evidence the arguments put forward by the Commission which, in their view, were incomplete (because they were to be supplemented in the course of the procedure).

130. Such reasoning adversely affects the proper apportionment of the burden of proof.

131. The Commission has a duty to carry out a preliminary examination with the Member State to justify the decision to initiate the formal investigation procedure because it considers that, on the basis of the elements known, the measure at issue qualifies as aid and there are doubts as to its compatibility with the internal market.

132. The decision to initiate the procedure must contain an analysis that is preliminary but complete on the basis of the known data and elements that enable the parties to be aware of all the legal reasons for the qualification of the measure as aid incompatible with the internal market. That assessment by the Commission is provisional (but, I repeat, not incomplete) because it is may to be modified in the course of the procedure by reason of the arguments put forward by the interested parties.

133. The parties’ rights of defence are, however, fully respected if they are placed in a position to know, at the time of the decision to initiate the procedure, all the elements and legal arguments supporting the (provisional) classification made by the Commission. Only in the event that, due to particular technical complexity, certain assessments or tests require additional elements that the Commission is able to examine only after the intervention of interested parties other than the Member State (with which dialogue has already taken place in the course of the preliminary examination) may those assessments or tests be postponed until the time of the procedure, with a specific statement of reasons to that effect. The same argument also applies to the comparability analysis.

134. Once the burden of proof as described above has been met, it is fair to assume that the General Court’s review must be limited to the existence of a manifest error of assessment in the Commission’s analysis, since the court may not enter into the merits of the complex and in-depth assessments already made. Otherwise, in the case, namely, of a deficient and incomplete statement of reasons, the limitation of that court’s review to the existence of a manifest error in the Commission’s analysis might prove to be a distortion of the correct apportionment of the burden of proof, to the detriment of the parties wishing to argue a view contrary to that of the Commission.

135. In the present case, while I agree with the Commission’s assertions concerning the limits to the General Court’s review as reaffirmed in the Court of Justice’s most recent case-law, (28) in respect of the classification of the contested measure as selective, the abovementioned deficiencies in the statement of reasons do not allow me to conclude that the second ground of appeal, which is in fact correctly subordinate to the first, should be rejected.

136. Should the Court of Justice conclude that the first ground of appeal should not be upheld and that the General Court’s reasoning, which did not criticise the Commission’s decision on the grounds of failure to state reasons, should therefore be regarded as free from defects, the evidence on the file, in particular the absence of any comparative analysis in the decision to initiate the procedure, would be such as to enable the Commission’s decision to be regarded as vitiated by a manifest error of assessment.

VI.    Conclusions

137. On the basis of all the foregoing considerations, I propose that the Court should:

–        uphold the first ground of appeal put forward;

–        set aside the judgment under appeal and annul the Commission’s decision.

1      Original language: Italian.

2      T‑328/18, not published, EU:T:2021:548.

3      (OJ 2015 L 248, p. 9).

4      Real Decreto 871/2007 por el que se ajustan las tarifas eléctricas a partir del 1 de julio de 2007 (Royal Decree 871/2007 adjusting electricity tariffs as from 1 July 2007).

5      BOE No 156, 30 June 2007, p. 28324.

6      Orden ITC/2794/2007, por la que se revisan las tarifas eléctricas a partir del 1 de octubre de 2007 (Order ITC/2794/2007 revising electricity tariffs as from 1 October 2007).

7      BOE No 234, 29 September 2007, p. 39690.

8      Orden ITC/3860/2007, por la que se revisant las tarifas eléctricas a partir del 1 de enero de 2008 (Order ITC/3860/2007 revising electricity tariffs as from 1 January 2008).

9      BOE No 312, 29 December 2007, at p. 53781.

10      Judgments of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002), and of 21 December 2016 Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971).

11      Judgment of 20 December 2017 (C‑70/16 P, EU:C:2017:1002).

12      Judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002).

13      Judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971).

14      See the order of 13 November 2019 in which the Court allowed EDP España’s intervention on the ground that it had demonstrated a direct and present interest in the dispute.

15      Judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002, paragraph 62).

16      Judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 58): ‘a measure which benefits only one economic sector or some of the undertakings in that sector is not necessarily selective. It is selective … only if, within the context of a particular legal regime, it has the effect of conferring an advantage on certain undertakings over others, in a different sector or the same sector, which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation’.

17      Judgment under appeal, paragraph 74.

18      See below.

19      Judgment of 10 April 2019, Deutsche Post v Commission (T‑388/11, EU:T:2019:237).

20      ‘Unless the obligation to state reasons under the second paragraph of Article 296 TFEU is to be rendered meaningless, any decision that the Commission makes on completion of the preliminary investigation phase must include a preliminary assessment as to whether the State measure in question is in the nature of State aid and must set out, at the time when it decides to initiate the formal investigation procedure, the Commission’s doubts as to the measure’s compatibility with the common market’.

21      Judgment of 10 April 2019, Deutsche Post v Commission (T‑388/11, EU:T:2019:237, paragraph 72).

22      Judgment of 25 July 2018, Commission v Spain and Others (C‑128/16 P, EU:C:2018:591, paragraph 93).

23      Judgments of 21 July 2011, Alcoa Trasformazioni v Commission (C‑194/09 P, EU:C:2011:497, paragraph 61), and of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 78).

24      Judgment of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201).

25      Judgment of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201, paragraph 53).

26      See, to that effect, judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 73).

27      See, to that effect, judgments of 23 October 2002, Diputación Foral de Guipúzcoa v Commission (T‑269/99, T‑271/99 and T‑272/99, EU:T:2002:258, paragraph 48), and of 25 March 2009, Alcoa Trasformazioni v Commission (T‑332/06, not published, EU:T:2009:79, paragraph 61).

28      Judgment of 16 March 2021, Commission v Poland (C‑562/19 P, EU:C:2021:201, paragraphs 50 and 52).