27.2.2023

Official Journal of the European Union

C 71/3

(Joined Cases C-702/20 and C-17/21) (*)

(Reference for a preliminary ruling - State aid - Article 107(1) TFEU - National legislation imposing an obligation on the public operator to purchase from renewable energy producers at a price higher than the market price - Failure to pay a portion of the aid concerned - Application for compensation submitted by those producers to a public authority distinct from that which is, in principle, required, under that national legislation, to pay that aid and whose budget is intended solely to ensure its own operation - New aid - Notification requirement - de minimis aid - Regulation (EU) No 1407/2013 - Article 5(2) - Cumulation - Taking into account the amounts of aid already received during the reference period on the basis of that national legislation)

(2023/C 71/03)

Language of the case: Latvian

Referring court

Parties to the main proceedings

Applicants: ‘DOBELES HES’ SIA (C-702/20), Sabiedrisko pakalpojumu regulēšanas komisija (C-17/21)

Intervening parties: Sabiedrisko pakalpojumu regulēšanas komisija, Ekonomikas ministrija, Finanšu ministrija, ‘GM’ SIA

Operative part of the judgment

1.Article 107(1) TFEU must be interpreted as meaning that national legislation which obliges the approved electricity distribution undertaking to purchase electricity generated from renewable energy sources at a price higher than the market price and which provides that the resulting additional costs are financed by a compulsory surcharge borne by end consumers or which provides that the funds used to finance those additional costs constantly remain under public control constitutes an intervention ‘through State resources’ within the meaning of that provision.

2.Article 107(1) TFEU must be interpreted as meaning that the classification of an advantage as ‘State aid’ within the meaning of that provision is not subject to the condition that the market concerned has first been fully liberalised.

3.Article 107(1) TFEU must be interpreted as meaning that, where national legislation has established ‘State aid’, within the meaning of that provision, the payment of a sum claimed before the courts in accordance with that legislation also constitutes such aid.

4.Article 107(1) TFEU must be interpreted as meaning that, where national legislation establishing a statutory right to a higher payment for electricity generated from renewable energy sources constitutes ‘State aid’, within the meaning of that provision, legal proceedings seeking full entitlement to that right must be regarded as requests for payment of the portion of that State aid not received, and not as requests for the grant by the court seised of a separate State aid.

5.Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 [TFEU] to de minimis aid, in particular Article 5(2) thereof, must be interpreted as meaning that compliance with the de minimis threshold laid down in Article 3(2) of that regulation must be assessed in the light of the amount of aid claimed under the relevant national legislation cumulated with the amount of the payments already received during the reference period under that legislation.

6.Article 1(b) and (c) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] must be interpreted as meaning that, where State aid does not correspond to any of the categories of existing aid provided for in Article 1(b) of that regulation, that aid, including the portion thereof whose payment is subsequently claimed, must be classified as ‘new aid’ within the meaning of Article 1(c) of that regulation.

7.Article 108(3) TFEU and Article 2(1) and Article 3 of Regulation 2015/1589 must be interpreted as meaning that a national court may grant a request for payment of a sum corresponding to new aid which has not been notified to the European Commission, provided that that aid is first duly notified by the national authorities concerned to that institution and that the latter gives, or is deemed to have given, its consent in that regard.

8.Article 107(1) TFEU must be interpreted as meaning that it is irrelevant, for the purpose of determining whether sums are in the nature of ‘State aid’ within the meaning of that provision, whether those sums are claimed from a public authority distinct from that which is, in principle, required to pay them pursuant to the national legislation concerned and whose budget is intended solely to ensure its own operation.

(*) Language of the case: Latvian.