24.1.2022

Official Journal of the European Union

C 37/24

(Case C-739/21 P)

(2022/C 37/32)

Language of the case: Greek

Parties

Appellant: European Commission (represented by: Antonios Bouchagiar and Paul-John Loewenthal)

Other parties to the proceedings: Dimosia Epicheirisi Ilektrismou ΑΕ (DEI) (applicant at first instance),

Mytilinaios AE — Omilos Epicheiriseon (intervener at first instance)

Form of order sought

The appellant claims that the Court should:

—set aside the judgment of the General Court (Third Chamber, Extended Composition) of 22 September 2021 in Joined Cases T-639/14 RENV, T-352/15 and T-740/17, DEI v Commission;

—give final judgment on the action at first instance in Case T-740/17 and dismiss it (in the alternative, give final judgment rejecting the third and fourth pleas for annulment and the first and second parts of the fifth plea for annulment and refer Case T-740/17 back to the General Court as regards the remaining pleas for annulment), and at the same time declare that the action in Cases T-639/14 RENV and T-352/15 has become devoid of purpose and there is no longer any need to adjudicate; and

—order the respondent and applicant at first instance to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appellant raises a single ground of appeal:

According to the appellant, the General Court misinterpreted and misapplied Article 107(1) TFEU, because it considered that the Commission could not have ruled out the existence of an advantage on the basis of application of the market economy operator test in relation to DEI’s recourse to arbitration with Mytilinaios, but should have examined whether the tariff determined by the arbitration tribunal in fact reflected the market price, because the arbitration tribunal should supposedly have been treated in the same way as an ordinary State court.

Owing to that error of law, the General Court erred in finding that the Commission should have entertained doubts within the meaning of Article 4(4) of Regulation 2015/1589, (1) on the basis of which it should have opened a formal investigation procedure under Article 108(2) TFEU regarding the tariff fixed by the arbitration tribunal.

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 (OJ 2015 L 248, p. 9).