In a judgment delivered on Wednesday 22 September in three joined cases (T-639/14 RENV, T-352/15 and T-740/17 DEI v Commission (EL)), the General Court of the EU annulled the decisions by which the European Commission had found that an arbitration award setting an allegedly preferential electricity tariff did not involve the granting of an advantage to the aluminium producer Mytilinaios.
The General Court found that the European Commission was obliged to carry out a diligent, sufficient and comprehensive examination of the possible existence of State aid by carrying out complex economic and technical assessments and should therefore have launched an investigation procedure under Article 108(2) of the TFEU.
The Commission had received complaints in the context of a dispute between Dimosia Epicheirisi Ilektrismou AE (DEI), an Athens-based electricity producer and supplier controlled by the Greek State, and its largest customer, Mytilinaios AE - Omilos Epicheiriseon, over the electricity supply tariff to replace the preferential tariff Mytilinaios enjoyed under an agreement signed in 1960 but which expired in 2006.
In October 2013, the Greek arbitration tribunal had set the energy tariff applicable to Mytilinaios. After the Court of Appeal dismissed DEI’s appeal against this arbitration award, DEI filed two complaints with the Commission, arguing that first the Hellenic Regulatory Authority for Energy (RAE) and then the arbitration tribunal had granted Mytilinaios illegal State aid insofar as the tariff in question obliged it to supply Mytilinaios with electricity at a price below its costs and thus below the market price.
In June 2014, the Commission informed DEI that its complaints had been closed, as the Commission considered that the tariff in question did not constitute State aid, as the criteria of imputability and advantage were not met. DEI therefore brought an action before the EU General Court (T-639/14) to have the classification decision annulled.
In those proceedings, the Commission had, by decision of 25 March 2015, withdrawn its contentious letter and argued instead that the arbitration award did not involve the granting of State aid in favour of Mytilinaios, essentially on the ground that DEI’s voluntary submission of their dispute to arbitration was consistent with the conduct of a prudent market economy investor and, therefore, did not involve an advantage (first contested decision).
DEI then brought an action before the General Court (T-352/15) to annul the first contested decision. In February 2016, the General Court found that there was no longer any need to rule on the action in Case T-639/14. However, on appeal, the Court of Justice annulled this order and referred the case back to the General Court (T-639/14 RENV).
In August 2017, the Commission adopted a second decision confirming that the award did not involve the granting of State aid within the meaning of Article 107(1) of the TFEU (second contested decision).
DEI then brought an action before the General Court for annulment of this second decision (Case T-740/17).
Since the Commission did not satisfy, in the second contested decision, the control requirements incumbent on it, the General Court finds that it should have experienced serious difficulties or had doubts requiring the initiation of the formal investigation procedure. Thus, the General Court allows the action in Case T-740/17 and annuls the second contested decision.
In view of the almost identical content of the first and second contested decisions, the General Court, for the same reasons, allows the action in Case T-352/15 and annuls the first contested decision. (Original version in French by Aminata Niang)