EN

Official Journal of the European Union

C 235/57

(Case T-240/23)

(2023/C 235/71)

Language of the case: German

Parties

Applicant: LichtBlick SE (Hamburg, Germany) (represented by: C. von Hammerstein, P. Roegele and H. Schutte, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the decision of the defendant of 21 December 2022 (State Aid SA.104606 (2222/N) — Germany, TCF communication: Temporary cost containment of natural gas, heat and electricity price increases) in so far as it declared the grant of aid under the German law on the introduction of an electricity price brake and amending other provisions of energy law (Gesetz zur Einführung einer Strompreisbremse und zur Änderung weiterer energierechtlicher Bestimmungen) to charging point operators to reduce the cost of charging electricity consumed by third persons behind a charging point to be compatible with the internal market;

—order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1.First plea in law

By its first plea, the applicant submits that the Commission failed to initiate the formal investigation procedure under Article 108(2) TFEU despite serious difficulties. The defendant overlooked the fact that the aid scheme of the Strompreisbremsegesetz (German Electricity Price Brake Law) also benefits charging point operators even though they are energy suppliers and not final consumers.

2.Second plea in law

By its second plea, the applicant submits that the formal investigation procedure under Article 108(2) TFEU ought to have been initiated because the Commission ought to have determined on a complete examination that charging point operators, which are both providers and suppliers of charging electricity, and not pure suppliers of charging electricity, such as the applicant, are to receive aid.

3.Third plea in law

By its third plea, the applicant submits that the defendant incorrectly declared the aid scheme of the German Electricity Price Brake Law for the benefit of charging point operators to be compatible with the internal market pursuant to Article 107(3)(b) TFEU. It follows from the TCF communication that aid to compensate for additional costs due to exceptionally severe increases in electricity prices following the aggression against Ukraine by Russia is only compatible with Article 107(3)(b) TFEU if there is a mechanism which ensures that the aid also benefits those who are affected by a serious disturbance in the economy of a Member State. Such a mechanism is lacking in the case of the aid to charging point operators.

4.Fourth plea in law

By its fourth plea, the applicant submits that the aid scheme of the German Electricity Price Brake Law for charging point operators is incompatible with the internal market because it distorts, without any reasonable justification, competition between pure suppliers of charging electricity, on the one hand, and charging point operators, on the other. The aid scheme of the German Electricity Price Brake Law benefited only suppliers of charging electricity which also operated charging points. By contrast, pure suppliers of charging electricity did not receive any aid under the German Electricity Price Brake Law. Charging point operators were therefore given a competitive advantage over pure suppliers of charging electricity.

5.Fifth plea in law

By its fifth plea, the applicant submits that the charging electricity aid infringes Directive (EU) 2019/944 (*) because it is based on a fiction — which is unlawful under Article 2(3) of Directive (EU) 2019/944 — that charging point operators are final consumers when in fact they are electricity undertakings within the meaning of Article 2(57) of Directive (EU) 2019/944 and carry out tasks related to supply pursuant to Article 2(12) of Directive (EU) 2019/944. The selective granting of aid only to charging point operators and not also to pure suppliers of charging electricity leads to a distortion of competition contrary to Article 3(4) and Article 5(1) of Directive (EU) 2019/944.

* Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast) (OJ 2019 L 158, p. 125).