25 March 2019 (*)

(Actions for annulment — State aid — Aid scheme for renewable energies — Preliminary examination procedure — Decision finding the aid scheme compatible with the internal market — Action brought by recipients — No interest in bringing proceedings — Inadmissibility)

In Case T‑186/18,

Abaco Energy, SA,

established in Madrid (Spain), and other applicants whose names are listed in the annex, represented initially by P. Holtrop, P. Kuypers and M. de Wit, and subsequently by P. Holtrop, lawyers, (1)

applicants,

European Commission,

represented by T. Maxian Rusche, P. Němečková and S. Noë, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2017) 7384 final of 10 November 2017 relating to State aid SA.40348 (2015/NN) implemented by the Kingdom of Spain (Support for electricity generation from renewable energy sources, cogeneration and waste),

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

1The applicants, Abaco Energy SA and the other persons whose names are listed in the annex, own and operate plants in Spain that generate electricity from renewable energy sources. As such, they benefited from a support scheme governed, inter alia, by Real Decreto 661/2007 por el que se regula la actividad de producción de energía eléctrica en régimen especial (Royal Decree 661/2007 regulating the production of electricity under the special regime) of 25 May 2007 (BOE No 126 of 26 May 2007, p. 22846). That decree set up a premium economic scheme to support the generation of electricity from renewable energy sources (‘the previous scheme’). The previous scheme was not notified to the European Commission.

2In 2013, the Spanish authorities introduced a specific remuneration system to support the generation of electricity from renewable energy sources (‘the current scheme’). The current scheme is, inter alia, based on the following texts:

–Real Decreto-ley 9/2013 por el que se adoptan medidas urgentes para garantizar la estabilidad financiera del sistema eléctrico (Royal Decree-Law 9/2013 adopting urgent measures to ensure the financial stability of the electricity system) of 12 July 2013 (BOE No 167 of 13 July 2013, p. 52106);

–Ley 24/2013 del Sector Eléctrico (Law 24/2013 on the electricity sector) of 26 December 2013 (BOE No 310 of 27 December 2013, p. 105198);

–Real Decreto 413/2014 por el que se regula la actividad de producción de energía eléctrica a partir de fuentes de energía renovables, cogeneración y residuos (Royal Decree 413/2014 laying down rules on electricity generation from renewable energy sources, cogeneration and waste) of 6 June 2014 (BOE No 140 of 10 June 2014, p. 43876);

–Orden IET/1045/2014 por la que se aprueban los parámetros retributivos de las instalaciones tipo aplicables a determinadas instalaciones de producción de energía eléctrica a partir de fuentes de energía renovables, cogeneración y residuos (Order IET/1045/2014 approving the standard plant remuneration rates applicable to certain power plants using renewable energy sources, cogeneration and waste) of 16 June 2014 (BOE No 150 of 20 June 2014, p. 46430).

3The current scheme is applicable both to new installations and to installations that were already entitled to receive or which were already receiving support under the previous scheme (‘the existing installations’).

4On 22 December 2014, the Spanish authorities notified the current scheme to the Commission under Article 108(3) TFEU.

5Following a preliminary examination, the Commission adopted Decision C(2017) 7384 final of 10 November 2017 relating to State aid SA.40348 (2015/NN) implemented by the Kingdom of Spain (Support for electricity generation from renewable energy sources, cogeneration and waste) (‘the contested decision’).

6In the contested decision, first, the Commission took the view that the current scheme constituted State aid within the meaning of Article 107(1) TFEU on the grounds that the support under that scheme was imputable to the State, that it was financed from State resources, that it granted a selective advantage to its recipients and that it was likely to distort competition and affect trade between Member States.

7Second, the Commission noted that the current scheme was applicable from 11 June 2014 and that the Spanish authorities had notified the aid scheme after they had started implementing it and before a Commission decision. The Commission therefore concluded that the Kingdom of Spain had breached the stand-still obligation provided for in Article 108(3) TFEU and that the aid granted until the adoption of the contested decision was illegal.

8Third, the Commission indicated that it would assess the compatibility of the current scheme on the basis of Article 107(3)(c) TFEU. In that regard, first, the Commission found that aid had been awarded to new installations only after 1 July 2014. Second, it found that the award act of all aid granted to existing installations during their entire lifetime was constituted by the official registration on 9 July 2014 of the existing recipients in the current scheme which superseded and fully replaced the previous scheme, the awards of which were absorbed. It therefore concluded that the compatibility of the aid in question was to be assessed in the light of the Guidelines on State aid for environmental protection and energy 2014‑2020 (OJ 2014 C 200, p. 1; ‘the 2014 Guidelines’), paragraph 248 of which states that unlawful environmental or energy aid will be assessed in accordance with the rules in force on the date on which the aid was granted.

9Fourth, as regards the compatibility of the current scheme, the Commission first considered that that scheme was aimed at the objective of common interest of reducing greenhouse gas and CO2 emissions. Next, it stated that the aid in question was necessary and an appropriate instrument to address that objective of common interest. Furthermore, it considered that the aid had an incentive effect for existing installations, for the recipients of aid granted by means of two specific administrative procedures for allocating capacity and for the recipients of aid granted through competitive bidding processes. In addition, it considered that the aid awarded under the current scheme was proportionate, whether, on the one hand, in respect of aid for existing installations and installations selected through the two abovementioned administrative procedures or, on the other, in respect of aid granted through competitive bidding processes. Furthermore, it noted that undue negative effects on competition and trade between Member States were excluded and that the Spanish authorities would comply with the transparency requirements laid down in the 2014 Guidelines. Finally, following commitments proposed by the Spanish authorities, it took the view that, as regards the charge levied on all electricity consumption in Spain to finance part of the scheme in question, all concerns of potential discrimination against electricity producers established in other Member States had been alleviated in respect of Articles 30 and 110 TFEU. The Commission also found that the Kingdom of Spain had confirmed that it complied with EU law in environmental matters.

10Fifth, the Commission responded to the comments of third parties and assessed the conformity of the current scheme with other provisions of EU law.

11Sixth, the Commission found that the implementation of the current scheme would be subject to an evaluation which complied with the 2014 Guidelines.

12In conclusion, the Commission lamented the fact that the Kingdom of Spain had implemented the aid measure in breach of Article 108(3) TFEU. Furthermore, it explained that it had assessed the compensation received, under the current scheme, from the installations concerned for their whole lifetime, including the payments received by existing installations under the previous scheme. On the basis of that assessment, the Commission decided not to raise objections to the aid in question on the ground that it was compatible with the internal market pursuant to Article 107(3)(c) TFEU.

Procedure and forms of order sought

13The applicants brought the present action by application lodged at the Court Registry on 14 March 2018. The application was put in order on 4 May, 12 June and 3 October 2018.

14By document lodged at the Court Registry on 16 July 2018, the Kingdom of Spain applied for leave to intervene in support of the form of order sought by the Commission.

15By document lodged at the Court Registry on 26 July 2018, EDP España applied for leave to intervene in support of the form of order sought by the applicants.

16On 2 October 2018, by way of measures of organisation of the procedure under Article 89(3) of the Rules of Procedure, the Court (Ninth Chamber) asked the parties to submit their observations on the applicants’ interest in bringing proceedings against the contested decision.

17On 26 October 2018, the Commission lodged a defence and responded to the request referred to in paragraph 16 above.

18On 2 November 2018, the applicants responded to the request referred to in paragraph 16 above.

19The applicants claim that the Court should:

–declare the action admissible;

–annul the contested decision;

–order the Commission to disclose separate assessments of the previous scheme and of the current scheme in accordance with EU law;

–order the Commission to pay the costs.

20The Commission contends that the Court should:

–dismiss the action as inadmissible or as unfounded;

–order the applicants to pay the costs.

Law

The third head of claim

21Under Article 126 of the Rules of Procedure of the General Court, where an action brought before the Court is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

22In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

23By their third head of claim, the applicants ask the Court to order the Commission to disclose separate assessments of the previous scheme and the current scheme of support for electricity generation from renewable energy sources.

24Thus, the applicants are claiming that the Court should issue positive directions to the Commission.

25However, it should be noted that, when reviewing lawfulness on the basis of Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24; see also, order of 25 June 2014, dos Santos Patrício v Commission, T‑170/14, not published, EU:T:2014:609, paragraph 5 and the case-law cited).

26The applicants’ third head of claim must therefore be rejected on the ground that the Court manifestly lacks jurisdiction to hear and determine it.

The second head of claim

27Under Article 129 of the Rules of Procedure, on a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.

28In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

29By their second head of claim, the applicants ask the Court to annul the contested decision.

30First of all, the applicants maintain that their action is admissible.

31In that regard, the applicants submit that, for many of them, the conclusion in the contested decision is of limited relevance since they have not received any remuneration under the current scheme. In addition, they claim that they have no objection to the contested decision in so far as it declares the current scheme compatible with Article 107(3)(c) TFEU.

32However, the applicants maintain that it is the effect of the contested decision in relation to the previous scheme which is relevant. In that regard, they challenge the contested decision in so far as it does not contain an assessment of the compatibility of the previous scheme. They claim that the contested decision disregards the interests of the applicants in so far as the Commission states in that decision that a separate assessment of the compatibility of payments originally foreseen under the previous scheme is not relevant for the scope of that decision. The applicants state that they are involved in national proceedings against the Kingdom of Spain as regards, in particular, the amount of compensation granted under the previous scheme. They add that, in those proceedings, they claim the payment of amounts they have been granted and should have been granted by the Kingdom of Spain under the previous scheme. However, according to the applicants, the Kingdom of Spain objects to their claims on the ground that the previous scheme was overcompensated and therefore allegedly contrary to EU rules on State aid.

33Thus, the applicants claim that they have a vested and present interest in obtaining a final decision on the compatibility of the previous scheme with the internal market, including on the issue of (over-)compensation. Without such a decision, the applicants maintain that they will be unable to prove that the previous scheme was not overcompensated and incompatible with the internal market. Furthermore, in view of the Commission’s exclusive powers to assess the compatibility of an aid scheme, they claim that the Commission must carry out a separate assessment of the previous scheme. Only by the annulment of the contested decision would the applicants be able to obtain satisfaction. In that regard, the annulment of the contested decision sought by the applicants would procure an advantage to them in that the Commission would be required to make a separate assessment of the previous scheme and to take a decision on the compatibility of that scheme.

34The applicants add that the present action for annulment represents a final chance for them to contest the cuts — introduced by the Kingdom of Spain through the adoption of the current scheme — to the payments that they received under the previous scheme. They state that they have exhausted all legal remedies available at national level and therefore that, before the national courts, they can no longer obtain the same outcome or an outcome comparable to that sought by the present action. They also state that, in an action brought against Royal Decree 413/2014, the Tribunal Supremo (Supreme Court, Spain) refused to grant their request that questions be referred to the Court of Justice of the European Union for a preliminary ruling on the legality of the cuts to the payments introduced by the current scheme.

35In substance, the applicants rely on six pleas in law. First, the applicants maintain that the Commission breached its duty of care and the principle of good administration on the ground that it did not carry out a separate assessment of the previous scheme as a whole. Second, the applicants rely on a manifest error of fact in the Commission’s finding that the previous scheme had been absorbed by the current scheme. Third, the applicants claim that the Commission made a manifest error of law in that it assessed the previous scheme according to the 2014 Guidelines. Fourth, the applicants rely on a plea of insufficient reasoning in that they allege that the contested decision does not provide any reasons why the Commission considered both that the previous scheme had been absorbed by the current scheme and that the payments under the previous scheme constituted unlawful aid. Fifth, the applicants rely on a misuse of powers and an infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union, which lays down the right of every person to have his affairs handled impartially and fairly. It is alleged that the contested decision aims to ensure that disputes which are subject to international arbitration and involve the Kingdom of Spain fall within the jurisdiction of the EU Courts. In addition, it is alleged that the contested decision also aims to ensure that the Kingdom of Spain will not need to make payments in relation to national litigation arising from the previous scheme. Sixth, the applicants claim that the Commission disregarded the principle of proportionality on the ground that it did not provide a separate assessment of the previous scheme despite the fact that it had the means, information, time and the ability to make such an assessment.

36According to settled case law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (judgments of 27 February 2014, Stichting Woonlinie and Others v Commission

, C‑133/12 P, EU:C:2014:105, paragraph 54, and of 4 June 2015, Pevasa and Inpesca v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 25).

37An applicant’s interest in bringing proceedings must be vested and current and may not concern a future and hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 56 and 57 and the case-law cited).

38It is the applicant who must prove that he has an interest in making his application, which is an essential and fundamental prerequisite for any legal proceedings (see judgment of 14 April 2005, Sniace v Commission, T‑141/03, EU:T:2005:129, paragraph 31 and the case-law cited).

39It is in the light of those principles that the Court must examine whether, in the present case, the applicants can demonstrate that they have an interest in bringing their action, having regard to the submissions and to the evidence provided by them in the application and, provided it is of a sufficient degree of clarity, in the reply to the written question sent to them by the Court.

40As a preliminary matter, it must be found that, in the contested decision, the Commission examined the measure notified to it by the Kingdom of Spain, that is to say the current scheme. In that regard, the Commission made clear that the current scheme superseded and replaced the previous scheme. However, the Commission made clear that the payments which had already been received by existing installations under the previous scheme were covered by the contested decision in order to assess the proportionality of the current scheme, namely the absence of overcompensation. The Commission examined the compensation received by the installations concerned, under the current scheme, for their entire lifetime. On the basis of the amount of payments already received by the existing installations under the previous scheme and payments under the current scheme, it reached the conclusion that the aid granted to those installations was proportionate and compatible with the internal market pursuant to Article 107(3)(c) TFEU (see paragraph 12 above).

41Furthermore, it is clear from the application that the applicants are recipients under the previous scheme and that, at least for some of them, they are recipients under the current scheme in so far as they own and operate existing installations within the meaning of the contested decision.

42However, the mere fact that the contested decision declares the aid compatible with the internal market and thus, in principle, does not have an adverse effect on the applicants qua recipients does not dispense the Court from examining whether the Commission’s finding has binding legal effects such as to affect the applicants’ interests (see, to that effect, judgments of 20 September 2007, Salvat père & fils and Others v Commission, T‑136/05, EU:T:2007:295, paragraphs 36 and 37, and of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraph 49).

43In the first place, as the applicants state in the application, their line of argument is not intended to call into question per se the Commission’s conclusion that the current scheme implemented by the Kingdom of Spain is illegal aid nevertheless compatible with the internal market under Article 107(3)(c) TFEU.

44In support of their action, the applicants rely on the pleas referred to in paragraph 35 above and claim that the Commission failed to carry out a separate assessment of the previous scheme, taken as a whole, namely the payments already received by existing installations under the previous scheme and the originally foreseen payments under that previous scheme which were ultimately not paid.

45In the second place, as regards the payments already received by the applicants under the previous scheme, it is clear from the case-law on actions for annulment brought by recipients of aid against a decision of the Commission declaring that aid fully compatible with the internal market that an interest in bringing proceedings may be inferred from a genuine ‘risk’ that the applicants’ legal position will be affected by legal proceedings (see, to that effect, judgment of 20 September 2007, Salvat père & fils and Others v Commission, T‑136/05, EU:T:2007:295, paragraph 43), or from the fact that the ‘risk’ of legal proceedings is vested and present (judgment of 14 April 2005, Sniace v Commission, T‑141/03, EU:T:2005:129, paragraph 28) at the date on which the action was brought before the EU judicature (see judgment of 22 October 2008, TV2/Danmark and Others v Commission, T‑309/04, T‑317/04, T‑329/04 and T‑336/04, EU:T:2008:457, paragraph 79 and the case-law cited).

46In the present case, first, the applicants do not claim, and a fortiori have not shown, that there is a risk that their situation would be affected by legal proceedings based on the fact that, in the contested decision, the Commission allegedly characterised the payments already received under the previous scheme as ‘State aid’ within the meaning of Article 107 TFEU. In particular, the applicants are not relying on a risk of legal proceedings as a result of which they could be ordered to reimburse the payments which they received before the contested decision was adopted. Furthermore, in the contested decision, the Commission does not order the reimbursement of any aid.

47Second, it is clear from the contested decision that the Commission took account of the payments received under the previous scheme in assessing the compatibility of the current scheme on the ground that those payments constituted income previously received by the existing installations. It should be made clear that, in paragraph 4 of the contested decision, the Commission stated that payments under the previous scheme were covered by that decision in order to assess proportionality, that is to say the absence of overcompensation. In addition, it is clear from the part of the contested decision which concerns the assessment of the proportionality of the aid granted to existing installations, and in particular from paragraph 120 of that decision, that the Commission regarded the payments received under the previous scheme as ‘past sales income’.

48Third, it is clear from the description of the current scheme given by the Commission in the contested decision that it is Spanish legislation which provided that the compensation received by existing installations would be calculated by taking into account the income already received by those installations under the previous scheme. In particular, as stated in paragraph 35(g) of the contested decision, the current scheme provided that the revenue obtained prior to the entry into force of Royal Decree-Law 413/2014 was taken into consideration to calculate profitability over their lifetime.

49In that regard, it is true that the applicants challenge the Commission’s assessment that the payments under the previous scheme were absorbed by the current scheme. However, in the application, the applicants also state that, according to the third transitory provision of Royal Decree-Law 9/2013, payments made to installations under the previous scheme are deemed to be payments already made under the current scheme. The applicants add that, when installations that had received remuneration from the previous scheme entered into the current scheme, the remuneration received was calculated as having been received under the current scheme.

50Fourth, in the contested decision, the Commission took the view, as regards the compensation received by the installations concerned for their lifespan, including the payments received by existing installations under the previous scheme, that the current scheme was compatible with the internal market in accordance with Article 107(3)(c) TFEU. However, it has not been claimed that the declaration of compatibility in the contested decision is, in relation to the points contested by the applicants before the Court, conditional or subject to compliance with commitments undertaken by the Kingdom of Spain which became binding as a result of the contested decision.

51Therefore, any annulment of the contested decision in so far as it allegedly regards payments already received under the previous scheme as ‘State aid’, in so far as it allegedly erred in finding that the payments under the previous scheme were absorbed by the current scheme and in so far as it allegedly erred in applying the 2014 Guidelines to those payments would not have the effect of calling into question the finding that the current scheme is compatible with the internal market pursuant to Article 107(3)(c) TFEU, nor compel the Commission to carry out a separate assessment of the previous scheme.

52Consequently, the annulment of the contested decision for the reasons referred to in paragraph 51 above would not have the effect of calling into question the decision of the Kingdom of Spain to adopt the current scheme or to compel that Member State to repeal the current scheme or to implement a scheme more favourable to the applicants.

53It has therefore not been shown that the annulment of the contested decision would be favourable to the applicants on the basis that the Commission allegedly erred in regarding payments already received by existing installations as ‘State aid’, that it allegedly erred in finding that the payments under the previous scheme were absorbed by the current scheme and that it allegedly erred in applying the 2014 Guidelines to those payments.

54In the third place, as regards the previous scheme, taken as a whole, and the originally foreseen payments under the previous scheme supporting the production of electricity which were ultimately not paid to the applicants, it is clear from the contested decision that the Commission did not make any assessment of the compatibility of the previous scheme or of those payments with the internal market. In that regard, the Commission explained that, since the Kingdom of Spain had decided to replace the previous scheme with the current scheme, it was not relevant, within the scope of the contested decision, to assess whether or not the originally foreseen payments under the previous scheme, which were ultimately not paid, were compatible with the internal market.

55Furthermore, in the application, the applicants do not dispute that the previous scheme was repealed by the current scheme. The applicants also do not contest the fact that the Kingdom of Spain decided to replace the previous scheme with the current scheme and that the new regime was notified to the Commission.

56Given that the previous scheme was repealed and replaced by the current scheme, the annulment of the contested decision cannot compel the Commission to conduct, as the applicants maintain, a separate assessment of the previous scheme as a whole.

57Thus it has not been shown that the annulment of the contested decision, in that it allegedly incorrectly recognised that the previous scheme was absorbed by the current scheme and in that it allegedly therefore failed to examine separately the previous scheme as a whole, would procure an advantage for the applicants — they submit — in the form of a separate assessment of the entirety of the previous scheme.

58Consequently, the annulment of the contested decision would also not oblige the Spanish authorities to reverse their decision to replace the previous scheme. The applicants have therefore failed to demonstrate the existence of a link between the annulment of the contested decision and a possible reintroduction of the previous scheme.

59Indeed, as the Commission commented in its defence, the applicants are, by their line of argument, suggesting that the assessment of the compatibility of the previous scheme could be conducted in another Commission decision. That line of argument thus suggests that there is no link between the assessment of the compatibility of the previous scheme as a whole and the conclusion reached by the Commission in the contested decision.

60In the fourth place, in the application and in their reply to a written question from the Court, the applicants refer to proceedings before the national courts in which they have inter alia sought the annulment of the legislation governing the functioning of the current scheme.

61First, the applicants claim that the action for annulment before the Court represents their final chance to contest the cuts, introduced by the Kingdom of Spain through the adoption of the current scheme, to the payments they receive. They state that they have exhausted all legal remedies available at national level and therefore that, before the national courts, they can no longer obtain the same outcome or an outcome comparable to that sought by the present action. They also state that, in an action brought against Royal Decree 413/2014, the Tribunal Supremo (Supreme Court) refused to accede to their request that it refer questions to the Court of Justice of the European Union for a preliminary ruling regarding the legality of reducing payments introduced by the current scheme.

62However, it is to be noted that the fact that it is alleged, first, that the national courts have refused to refer a question to the Court of Justice of the European Union for a preliminary ruling, second, that there is a risk of failure to cooperate between the national courts and the EU Courts, or even, third, that the applicants have exhausted all legal means at the national level, has no direct link on the effects of the contested decision. Thus, such a fact, prior to the adoption of the contested decision, does not demonstrate the applicants’ interest in obtaining the annulment of the contested decision.

63Second, in other passages of the application, the applicants explain that they are involved in national legal proceedings in which they seek the annulment of Royal Decree 413/2014 and of Order 1045/2014. They add that they are preparing an action for the annulment of Orden ETU/130/2017 por la que se actualizan los parámetros retributivos de las instalaciones tipo aplicables a determinadas instalaciones de producción de energía eléctrica a partir de fuentes de energía renovables, cogeneración y residuos, a efectos de su aplicación al semiperiodo regulatorio que tiene su inicio el 1 de enero de 2017 (Order ETU/130/2017 updating standard installation remuneration criteria applicable to certain installations generating electricity from renewable sources and waste and by cogeneration, for the purposes of the legislative half cycle beginning on 1 January 2017) of 17 February 2017 (BOE No 45 of 22 February 2017, p. 11543).

64The applicants explain that those actions are based on a breach of national law and of EU law principles. In Annexes 12 to 14 to the application, the applicants have produced a copy of the action which they brought before the Tribunal Supremo (Supreme Court) against Royal Decree 413/2014, Order 1045/2014 and Order 130/2017. Furthermore, in Annex 18 to the application, the applicants produced a copy of a letter sent to the Tribunal Supremo (Supreme Court) in which a representative of the Spanish Government produced documents relating to the notification of the current scheme to the Commission and requested a stay in the proceedings until the procedure before that institution was closed.

65In that regard, it is to be noted that the request for a stay in the proceedings referred to in paragraph 64 above was lodged by a representative of the Spanish Government before the Tribunal Supremo (Supreme Court) in the case relating to an action for the annulment of Royal Decree 413/2014. As appears from Annex 16 to the application, by order of 17 July 2015, the Tribunal Supremo (Supreme Court) refused to grant that stay in proceedings and, in a judgment of 11 July 2016, refused to refer questions to the Court of Justice of the European Union for a preliminary ruling. In addition, in that judgment, the Tribunal Supremo (Supreme Court) dismissed the applicants’ action.

66In addition, it should be noted that, at various points, the applicants state that, by means of the actions which they have brought before the national courts, they seek to obtain the payment of the remuneration originally foreseen under the previous scheme. Furthermore, in the application, the applicants rely on the existence of proceedings before the national courts in order to criticise the lack of a separate assessment, by the Commission, of the previous scheme as a whole.

67It should be noted that, given that the previous scheme was repealed and replaced by the current scheme, it has not been demonstrated that the annulment of the contested decision, in that it allegedly wrongly recognised that the previous scheme was absorbed within the current scheme and thus failed to examine separately the previous scheme as a whole, would procure an advantage for the applicants, as the applicants maintain, in the form of a separate assessment of the entirety of the previous scheme (see paragraphs 54 to 57 above).

68Lastly, indeed, the applicants submit that, in the proceedings at national level, the Kingdom of Spain opposed their actions for the payment of the amounts originally foreseen under the previous scheme on the ground that that scheme was overcompensated and therefore contrary to the rules on State aid. However, the applicants have not adduced any evidence in support of their submission that the Kingdom of Spain claimed that the previous scheme was contrary to the rules on State aid, and it is not apparent from the case file that the replacement of the previous scheme with the current scheme was required by the Commission or, more generally, follows from the obligation of the Kingdom of Spain to comply with the rules on State aid.

69Therefore, as regards the evidence in the case file, it must be found that the evidence produced by the applicants regarding the actions allegedly pending before the Spanish courts do not prove that the annulment of the contested decision would procure an advantage for them in relation to those actions.

70Indeed, certain passages in the applicants’ reply to the written question addressed to them by the Court, in particular in paragraphs 10, 13 and 18, suggest that it is the assessments made in the contested decision and not any annulment thereof which would be favourable to them in relation to their actions at national level. According to the applicants, the Commission’s interpretation of national law in the contested decision would have procured an advantage for them in the national courts, if it had been made earlier.

71The finding made in paragraph 69 above is not called into question by the fact that the applicants brought an action for damages against the Kingdom of Spain and that they have, before the Audiencia Nacional (National High Court, Spain), challenged the 2013 regulations issued by the Comisión Nacional de los Mercados y la Competencia (National Commission for Markets and Competition, Spain).

72The applicants have not produced any evidence to support that claim.

73In the fifth place, indeed, in paragraph 158 of the contested decision, the Commission responded to the investors’ claims that the Kingdom of Spain had breached the general principles of EU law of legal certainty and of the protection of legitimate expectations at the time when that Member State amended the aid allocated to existing installations. In that paragraph, the Commission noted that, according to the case-law, a recipient of State aid cannot, in principle, have a legitimate expectation as to the legality of the award of aid which is not notified to the Commission.

74However, the Commission’s explanations referred to in paragraph 73 above were made in response to third parties’ observations and bear no relation to the finding in the contested decision that the current scheme is compatible with the internal market.

75Thus, the Commission’s explanations referred to in paragraph 73 above, which relate to the principle of the protection of legitimate expectations, do not provide the essential basis for the operative part of the contested decision and are therefore not subject to review by the EU judicature in this case, so that they cannot form the basis for an interest in bringing proceedings on the part of the applicants (see, to that effect, order of 19 February 2013, Provincie Groningen and Others v Commission, T‑15/12 and T‑16/12, not published, EU:T:2013:74, paragraph 38).

76In the sixth place, it is true that, in the contested decision, the Commission examined third parties’ claims alleging breach of provisions of the Energy Charter Treaty, signed at Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24). In that regard, the Commission noted that many investors had brought arbitration proceedings against the Kingdom of Spain on the basis of that treaty. As a preliminary matter, the Commission stated that any provision of an agreement concluded between two Member States that provides for arbitration between an investor established in another Member State and a Member State was contrary to EU law both in terms of substance and enforcement. The Commission inferred as a result that the Energy Charter Treaty did not apply to investors from Member States who bring proceedings against other Member States. In addition, the Commission noted that any compensation which an arbitration tribunal were to award to an investor on the basis that the Kingdom of Spain had modified the previous scheme by the current scheme, would in itself constitute State aid. However, arbitration tribunals are not competent to authorise the granting of State aid in so far as that falls within the exclusive competence of the Commission. Consequently, according to the contested decision, if arbitration tribunals were to award compensation or were to do so in the future, that compensation would be notifiable State aid and subject to the stand-still obligation under Article 108(3) TFEU. The Commission added that the contested decision was binding on arbitration tribunals were they to apply EU law and that a review of the legality of the decision fell within the sole jurisdiction of the EU Courts.

77However, for the same reasons as those adopted in paragraphs 74 and 75 above, the Commission’s explanations relating to compliance with EU law of certain arbitration proceedings and compensation that may be granted in that regard do not contain any legally binding position, do not provide the essential basis for the operative part of the contested decision and are therefore not subject to review by the EU Courts in the present proceedings, so that they cannot form the basis for the applicants’ interest in bringing proceedings. In any event, it should be noted that, as has been observed by the Commission, the applicants have not shown that they are a party to the arbitration proceedings to which the Commission referred in the contested decision.

78Accordingly, it must be found that the applicants have not shown that the annulment of the contested decision would procure an advantage for them and therefore that they have an interest in bringing proceedings.

79That finding cannot be called into question by the other arguments put forward by the applicants in the application and in their reply to the written question addressed to them by the Court.

80In the first place, assuming that the application may be interpreted to the effect that the applicants claim that their procedural rights were breached — which the Commission disputes — the Court of Justice has previously held, where an applicant sought the annulment of a Commission decision not to raise objections due to a breach of its procedural rights, that it was for the applicant to prove that, during the preliminary examination phase of the measure notified, the Commission should have had doubts as to the compatibility of that measure with the internal market (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59).

81However, in so far as an applicant submits that it is a recipient of aid declared to be compatible with the internal market following a preliminary phase of examination, it cannot claim that its procedural rights were breached (see, to that effect, judgment of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 31).

82The annulment of the contested decision cannot have the effect of authorising a measure of State aid which is broader than the measure declared to be compatible in the contested decision and cannot have the mere consequence only of suspending the decision in full and of authorising no aid measure (see, to that effect, order of 9 July 2007, wheyco v Commission, T‑6/06, not published, EU:T:2007:202, paragraph 102).

83Thus, in so far as the applicants rely on a failure to initiate the formal investigation procedure, it should be made clear that, as undertakings benefiting from the aid, their interest in bringing proceedings is not based on the fact that, if a procedure had been initiated, they would have been able to submit comments to the Commission (see, to that effect, order of 9 July 2007, wheyco v Commission, T‑6/06, not published, EU:T:2007:202, paragraph 104 and the case-law cited).

84Furthermore, as appears from paragraphs 43 to 78 above, the applicants have, in any event, not shown that the annulment of the contested decision on the grounds submitted in the applicants’ various pleas would procure an advantage for them. Thus, the annulment of the contested decision, in so far as the substance thereof allegedly bears witness to serious difficulties encountered by the Commission, would not procure any more of an advantage to the applicants.

85In the second place, in their response to the written question which the Court sent to them, the applicants advance arguments which appear to concern the merits of their action, which are, they maintain, related to compatibility with the current scheme. The applicants claim inter alia that the contested decision is incompatible with general principles of EU law in so far as the Commission endorsed retroactive application of the current scheme.

86However, in paragraphs 10 and 37 of the application, the applicants explained, inter alia in the part thereof intended to demonstrate their interest in bringing proceedings, that they were not contesting the contested decision for having declared the current scheme to be compatible.

87In addition, in the application, and in particular in paragraph 38 thereof, the applicants state that they are challenging the contested decision on the ground that it fails to include a separate assessment of the compatibility of the previous scheme. They claim that the contested decision disregards their interests in so far as the Commission stated in that decision that a separate assessment of the compatibility of payments originally foreseen under the previous scheme was not relevant for the scope of that decision.

88It is moreover only due to the lack of a separate assessment of the previous scheme as a whole that the applicants ‘referred’, without articulating a plea in that regard, to the Commission’s breach of the principles of legal certainty and of the protection of legitimate expectations. Nonetheless, in paragraphs 5, 19, 23 and 25 of the application, the applicants referred, without formulating any plea in law, to a breach of legitimate expectations by the Spanish Government in relation to the implementation of the current scheme.

89Put differently, in the application, the applicants claim that they have an interest in seeking the annulment of the contested decision on the ground that such an annulment would force the Commission to conduct a separate assessment of the previous scheme.

90Under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure, which was not the case here.

91Thus, in response to the question put by the Court, the applicants were, certainly, free to provide any evidence capable of establishing their interest in bringing proceedings. However, in order to prove their interest in bringing proceedings, it was not open to the applicants to alter the subject matter of the dispute and claim, for the first time in replying to the question put by the Court, that the current scheme was incompatible and that it breached the principle of non-retroactivity (see paragraph 85 above).

92It follows that the applicants’ arguments alleging that the current scheme is incompatible and in breach of the principle of legal certainty on the ground that the contested decision endorses retroactive application of the current scheme, are not capable of proving their interest in bringing proceedings.

93In any event, supposing that the applicants were to rely on the incompatibility of the current scheme and were therefore to rely on an interest in obtaining the annulment of the contested decision in so far as it declares the current scheme of which they are recipients to be compatible, it should be noted that it does not follow from the contested decision and has moreover not been claimed that the declaration of compatibility in the contested decision is, in relation to the points challenged by the applicants before the Court, conditional or subject to compliance with commitments undertaken by the Kingdom of Spain which became binding as a result of the contested decision (see paragraph 50 above).

94In the third place, as regards the applicants’ argument put forward in their reply to the Court’s written question and based, in essence, on the fact that the contested decision deprives them of the prescription period for the payments received under the previous scheme, it is to be noted that that decision does not affect the rules of prescription applicable to those payments. Furthermore, in any event, the applicants have not claimed that they may be required to reimburse payments previously received under the previous scheme (see paragraph 46 above).

95In the fourth place, the applicants’ situation cannot be subsumed within that of an applicant who has filed a complaint based on the rules on State aid and in the light of which the Commission would have been required to act and failed to adopt a position.

96It is true that, according to the file, an association, to which certain applicants claim that they belong, filed a complaint with the Commission.

97However, as maintained by the Commission, that complaint was not based on breach of the rules on State aid. In that complaint, the association referred to in paragraph 96 above alleged several breaches. First, it alleged breach of legitimate expectations due to cuts to remuneration granted to producers of electricity from renewable energy sources by the Kingdom of Spain, from the adoption of Real Decreto 1565/2010 por el que se regulan y modifican determinados aspectos relativos a la actividad de producción de energía eléctrica en régimen especial (Royal Decree 1565/2010 governing and amending certain aspects of the production of electricity under the special regime), of 19 November 2010 (BOE No 283, of 23 November 2010, p. 97428). Second, it alleged breach of Article 3(1) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), read in conjunction with Annex I to that directive, which sets mandatory objectives for the Kingdom of Spain as regards the proportion of energy from renewable sources in its total energy consumption in 2020. Third, it alleged breach of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32). Fourth, it alleged a restriction on the free movement of capital.

98In addition, in relation to the foregoing, the pleas put forward in the application do not correspond to breaches alleged in the complaint in question. The applicants have not formulated any plea or argument in relation to the Commission’s findings that the current scheme pursues an objective of common interest of reducing greenhouse gas and CO2 em emissions, is a necessary and appropriate means of meeting that objective of common interest, has an incentive effect for the recipients, is proportionate and does not lead to negative effects on competition and trade between Member States. To the same effect, in the application, the applicants do not rely on a plea alleging incompatibility of the current scheme in the light of the principle of non-retroactivity of legal acts or of EU environmental law.

99The Court therefore dismisses the second head of claim submitted by the applicants as inadmissible on the ground of lack of interest in bringing proceedings and, consequently, dismisses the first head of claim of the application.

100In the light of all of the foregoing, the Court dismisses the action in part due to the Court’s manifest lack of jurisdiction to hear and rule on it and in part as inadmissible, and, in accordance with Article 142(2) of the Rules of Procedure, there is no need to rule on the applications to intervene lodged by the Kingdom of Spain and EDP España.

Costs

101Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the applicants have been unsuccessful in their action, they must be ordered to bear their own costs and to pay those of the Commission, in accordance with the form of order sought by the Commission, with the exception of those relating to the applications to intervene.

102Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the applicants, the Commission, the Kingdom of Spain and EDP España must each bear their own costs relating to the applications to intervene.

On those grounds,

hereby orders:

1.The action is dismissed.

2.There is no need to rule on the applications to intervene of the Kingdom of Spain or EDP España.

3.Abaco Energy, SA, and the other applicants whose names are listed in the annex, shall bear their own costs and those incurred by the European Commission, with the exception of the costs relating to the applications to intervene.

4.Abaco Energy and the other applicants whose names are listed in the annex, the Commission, the Kingdom of Spain and EDP España shall bear their own costs relating to the applications to intervene.

Luxembourg, 25 March 2019.

Registrar

President

Language of the case: English.

The list of the other applicants is annexed only to the version sent to the parties.