Official Journal of the European Union

C series

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C/2025/739

10.2.2025

(Case T-630/24)

(C/2025/739)

Language of the case: German

Parties

Applicants: eins energie in Sachsen GmbH & Co. KG (Chemnitz, Germany) and six other applicants (represented by: I. Zenke and T. Heymann, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul the decision of the defendant of 11 December 2023 declaring the aid in the amount of EUR 2.6 billion in favour of RWE compatible with the internal market, in the context of procedure SA.53625(2021/C),

—order the defendant to disclose the revised calculations of RWE’s foregone profits of 16 December 2022 from r2b energy consulting GmbH,

—order the defendant to pay the costs of the proceedings, including the legal and travel costs incurred by the applicants in the context of the proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1.First plea in law, alleging a failure to state reasons for approval SA.53625.

It is not apparent from approval SA.53625 how the aid from the Federal Republic of Germany in favour of RWE is supposed to promote certain economic activities within the meaning of Article 107(3)(c) TFEU. The defendant fails to set out a contra factual scenario against which to compare the alleged promoting effect of the aid.

The defendant fails to give sufficient reasons for the alleged proportionality of the aid in the amount of EUR 2.6 billion, since it bases RWE’s fictitious profit expectations in essence on calculations set out in an expert report drawn up for the Federal Republic of Germany, without stating the specific sales assumptions serving as a basis for the profit expectations in the contra factual scenario.

2.Second plea in law, alleging insufficient investigation of facts by the defendant.

The defendant makes the assumption that the aid in favour of RWE has the effect of promoting (inter alia) the production of renewable energy. The defendant derives this effect from the production gap resulting from the closure of lignite-fired units, without having investigated the circumstances that may play a role in the deployment of renewable energy. The defendant failed to investigate the regulatory requirements of the Erneuerbare-Energien-Gesetz (Law on renewable energy), (1) historical participation in renewable energy tenders and the actual evolution of the deployment thereof, with a view to establishing that the aid would help accelerate the deployment of renewable energy.

According to the applicants, the defendant also failed, when examining the fictitious profits calculations set out in the expert report, to investigate properly circumstances that were relevant to its decision. It relied on the unadjusted forward market prices for October/November 2022, that were exceptionally high due to the war and not representative, for the presumed profits for the 2023-2025 supply period. In addition, it assumed, without proving RWE’s actual sale and supply prospects, that RWE could, at the relevant time, dispose of the entire capacity of the plant to be closed at a profit.

3.Third plea in law, alleging manifest error of assessment by the defendant.

The defendant is clearly mistaken in its assumption that the aid facilitates the development of certain economic activities within the meaning of Article 170(3)(c) TFEU. It is unclear first of all to which economic activities it refers. The general objective of reducing greenhouse gas emissions pursued, according to the Federal Republic of Germany, by the aid does not promote any economic activities. Moreover, it is not the production of electricity from lignite-fired plants – which, in any event, is not eligible for aid – that is promoted but, at most, the decommissioning thereof. In so far as the defendant refers to the production of renewable energy as the economic activity to be promoted, it has not established any promoting effect, since it did not take account, in the contra factual scenario, of the fact that even without any aid to RWE, the Gesetz zur Reduzierung und zur Beendigung der Kohleverstromung (Law on the reduction and termination of coal-fired electricity production) (2) would have resulted in coal being phased out. Furthermore it is not sufficient that the production of renewable energy is indirectly promoted by the production gap resulting from lignite being phased out.

The defendant disregards the fact that the aid adversely affects trading conditions within the meaning of Article 107(3)(c) TFEU, which runs counter to the general interest. The applicants claim that the aid is not necessary, since the Federal Republic of Germany extensively regulated the phasing out of lignite, in line with its Constitution, without even providing for any compensation for RWE. The aid is also not appropriate since the phasing out of lignite without compensation, provided for in the Law on the reduction and termination of coal-fired electricity generation, is a less restrictive alternative which was also, as the defendant was right to find, in line with property law. The aid is not proportional either, since the defendant exaggerated the profit expectations on the basis of the inadequate expert report when, by contrast, it disregarded the other benefits that the aid brought to RWE, namely by allowing RWE to plan and carry out the transformation and expansion of its pool of plants. All of these elements, ultimately, led to the clearly mistaken conclusion that the positive effects of the aid on competition and trade outweighed the negative effects thereof.

The defendant disregarded the relevant EU law requirements. The aid infringes the principle of causation laid down in Article 191 TFEU, since RWE itself is responsible for (the reduction of) the environmental impact of its lignite units. In addition, the defendant did not take sufficient account of the fact that the aid strengthened RWE’s market power that is problematic for the purposes of Article 102 TFEU.

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ELI: http://data.europa.eu/eli/C/2025/739/oj

ISSN 1977-091X (electronic edition)

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