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 a recipient — No interest in bringing proceedings — Inadmissibility)

In Case T‑190/18,

Solwindet las Lomas, SL,

established in Girona (Spain), represented by L. Sandberg-Mørch, lawyer,

applicant,

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 applicant, Solwindet las Lomas, SL, owns and operates a wind farm in Spain which produces electricity and was built in 2004.

2Initially, the applicant benefited from a scheme which encouraged the production of electricity and received aid under Real Decreto 436/2004 por el que se establece la metodología para la actualización y sistematización del régimen jurídico y económico de la actividad de producción de energía eléctrica en régimen especial (Royal Decree 436/2004 laying down the methodology for updating and reorganising the legal and economic framework for the production of electricity under the special regime) of 12 March 2004 (BOE No 75, of 27 March 2004, p. 13217).

3The applicant then 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.

4Subsequently, in 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).

5The current scheme is applicable both to new installations and to installations that were already entitled to receive or who were already receiving support under the previous scheme (‘the existing installations’).

6On 22 December 2014, the Spanish authorities notified the current scheme to the Commission under Article 108(3) TFEU.

7Following 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’).

8In 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.

9Second, 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.

10Third, 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. The Commission 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.

11Fourth, 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, as well as for the recipients of aid granted through competitive bidding processes. In addition, it considered that the aid granted 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.

12Fifth, the Commission responded to the comments of third parties and assessed the conformity of the current scheme with other provisions of EU law.

13Sixth, the Commission found that the implementation of the current scheme would be subject to an evaluation which complied with the 2014 Guidelines.

14In 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

15The applicant brought the present action by application lodged at the Court Registry on 15 March 2018.

16The Commission lodged its defence on 15 June 2018.

17By document lodged at the Court Registry on 13 July 2018, the Kingdom of Spain applied for leave to intervene in support of the form of order sought by the Commission.

18By 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 applicant.

19The applicant lodged its reply on 18 September 2018.

20On 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 applicant’s interest in bringing proceedings against the contested decision. The parties complied with that request within the prescribed period.

21The applicant claims that the Court should:

–declare the action admissible and well founded;

–annul the contested decision;

–order the Commission to pay the costs.

22The applicant also asks the Court to request, by means of a measure for the organisation of the procedure adopted in accordance with Article 89(3)(a) and (d) of the Rules of Procedure, that the Commission state or furnish the correspondence between the Spanish authorities and the Commission as well as the total number of observations submitted by third parties.

23The Commission contends that the Court should:

–dismiss the action as inadmissible or as unfounded;

–order the applicant to pay the costs.

Law

24Under 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.

25In 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.

26Without formally raising a plea of inadmissibility in accordance with Article 130 of the Rules of Procedure, the Commission claims that the action is inadmissible inter alia on the ground that the applicant has not shown that it has an interest in bringing proceedings.

27The applicant submits that its action is admissible. In the application, it claims, inter alia, that it is a direct recipient of the previous scheme and of the current scheme in so far as it is an entity ‘owning and operating existing facilities’ within the meaning of the contested decision. It specifies that, although the contested decision may seem favourable to the recipients of the aid, the contested decision is detrimental to it. Given that in the contested decision the Commission approved the current scheme, which replaced the previous scheme from which the applicant had benefited, that decision had the effect of making the conditions for the exercise of its activities less favourable than had previously been the case. In particular, it maintains that, under the current scheme, the target rate of return applicable to existing installations was significantly reduced. Furthermore, the fixed feed-in-tariffs and premiums under the previous scheme were repealed and replaced with a premium based on capacity as opposed to production. Lastly, remuneration received was substantially reduced. As a result, the applicant claims to have suffered substantial financial loss.

28According 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, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 25).

29An applicant’s interest in bringing proceedings must be vested and present 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).

30It is the applicant who must prove that it has an interest in making its 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).

31It is in the light of those principles that it is appropriate to consider whether, in the present case, the applicant has shown that it has an interest in bringing proceedings on the basis of the submissions and evidence which the applicant has provided.

32As 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 14 above).

33In the application, the applicant maintains that it is a direct recipient of the previous scheme and of the current scheme in so far as it is an entity ‘owning and operating existing facilities’ within the meaning of the contested decision.

34However, 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 applicant qua recipient does not dispense the Court from examining whether the Commission’s finding has binding legal effects such as to affect the applicant’s 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).

35In support of its action, the applicant puts forward three pleas in law. The first plea alleges, in essence, breach of its procedural rights in that the Commission failed to initiate the formal investigation procedure laid down in Article 108(2) TFEU. The second plea alleges an error in law and a manifest error of assessment regarding the payments received by existing installations under the previous scheme. The third plea alleges breach of the obligation to state reasons.

36The second plea on which the applicant relies, which alleges an error in law and a manifest error of assessment, contains three limbs.

37First of all, the applicant submits that the Commission erred in law, first, by subsuming the payments already received by existing installations under the previous scheme in its assessment of the current scheme and, second, by applying the 2014 Guidelines to those payments as opposed to the Commission’s Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3).

Next, the applicant claims that, even if the Commission had been entitled to subsume the payments already received by existing installations under the previous scheme in its assessment of the current scheme (which, in its view, was not the case), the Commission erred in law in finding that the aid was granted to existing installations on 9 July 2014 under the current scheme and, thus, that the 2014 Guidelines were applicable to the current scheme. In the applicant’s view, the Commission should, in accordance with paragraphs 246 and 248 of the 2014 Guidelines, have assessed the payments received by existing installations under the current scheme as unlawful State aid on the basis of the Community Guidelines on State aid for environmental protection (OJ 2008 C 82, p. 1).

40Lastly, the applicant claims that the Commission erred in taking into account payments already received by existing installations under the previous scheme for the compatibility assessment of the current scheme with the internal market. First, the Commission failed to establish anywhere in the contested decision that the payments received by existing installations under the previous scheme amounted to State aid within the meaning of Article 107(1) TFEU. Second, at the time when the existing installations were built, that is in 2004 in the applicant’s case, and payments received under the previous scheme, those payments would not have amounted to State aid within the meaning of Article 107(1) TFEU, since they were not State resources.

41The applicant adds that, had the Commission analysed the previous scheme through an ex ante assessment of its compatibility with the internal market in the light of the Commission’s Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3), it would have adopted a favourable decision and the operators of the existing installations would have been better off in so far as the current scheme is less favourable to them.

4241

42The third plea on which the applicant relies alleges a breach of the obligation to state reasons in that the Commission did not explain the reasons why it took account of the payments already received by existing installations under the previous scheme, ‘as if such payments constitute State aid’, in assessing the compatibility of the current scheme with the internal market against the 2014 Guidelines.

43In that regard, as a preliminary matter, it should be made clear that the applicant’s line of argument against the contested decision is that it concerns the payments already received by existing installations under the previous scheme and the originally foreseen payments under the previous scheme which were ultimately not paid.

4443

44In the first place, as regards payments already received by the applicant under the previous scheme, that applicant challenges errors made by the Commission in subsuming, within the current scheme, payments which had already been received by existing installations under the previous scheme, in applying the 2014 Guidelines to those payments and, lastly, in taking account of payments which had already been received by existing installations under the previous scheme for the assessment of the compatibility of the current scheme with the internal market. As part of that line of argument, the applicant claims inter alia that the payments received under the previous scheme do not constitute ‘State aid’ within the meaning of Article 107 TFEU.

45In that regard, it is first 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 applicant’s 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, the applicant does not claim, and a fortiori has not shown, that there is a risk that its 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 applicant is not relying on the existence or risk of legal proceedings as a result of which it could be ordered to reimburse the payments which it received before the contested decision was adopted. Furthermore, in the contested decision, the Commission does not order the reimbursement of any aid.

47Nor has the applicant relied on pending legal action to which it is a party the result of which could be influenced by the outcome of the present action.

48Second, it must be found that the challenge to the alleged classification of the payments received under the previous scheme as ‘State aid’ is aimed solely at demonstrating that the Commission erred in assessing the compatibility of the current scheme.

49In its reply to a written question addressed to it by the Court, the applicant submits that the classification of the measure in question as aid forms the essential support for the conclusion reached in the operative part of the contested decision to approve the payments made both under the previous scheme and the current scheme. In the operative part of the contested decision, the applicant claims that the Commission explicitly required that, in determining whether the aid ceiling under the current scheme would be reached, the payments received under the previous scheme had to be taken into account ‘as if such payments constitute State aid’. The applicant specifies that that classification as aid affects its interests. The Commission’s requirement that payments received under the previous scheme must be taken into account in determining whether the aid ceiling under the current scheme was reached ‘as if such payments constitute State aid’ is a ‘condition’ which is binding upon the Kingdom of Spain and the aid recipients. That condition limits the total amount of aid which can be received under the current scheme. Therefore, if the contested decision were annulled, the Commission would need to assess whether the payments made under the previous scheme were aid and it could revise its position in that regard.

50However, first, 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’.

51Second, it is clear from the description of the current scheme given by the Commission in the contested decision and the applicant’s exposition of that scheme in the application 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 and noted by the applicant in the application, the current scheme provided that the revenue received prior to the entry into force of Royal Decree-Law 413/2014 would be taken into consideration to calculate profitability over their lifetime.

52Third, contrary to what the applicant claims, the operative part of the contested decision cannot be interpreted to the effect that the declaration of compatibility of the current scheme is subject to the condition that the payments received under the previous scheme be taken into account in determining whether the aid ceiling for the current scheme was reached. It cannot be inferred from the reasoning in the contested decision or the operative part thereof that taking into account payments received under the previous scheme for the purposes of calculating the compensation which can be claimed by existing installations follows from a ‘condition’ or an obligation which the Commission has imposed upon the Spanish authorities. In the contested decision, the Commission merely noted that it had assessed the current scheme, that that scheme provided for payments received under the previous scheme to be taken into account for the purposes of calculating the compensation which could be claimed by existing installations and that that scheme was compatible with the internal market. Thus, the declaration of compatibility in the contested decision is, in relation to the points contested by the applicant before the Court, not conditional or subject to compliance with commitments undertaken by the Kingdom of Spain which became binding as a result of the contested decision.

53Therefore, no annulment of the contested decision for the reasons set out in paragraph 43 above would have the effect of enabling the applicant to receive more aid under the current scheme.

54Consequently, the annulment of the contested decision for the reasons referred to in paragraph 43 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 applicant.

55Thus, it has not been established that the annulment of the contested decision in which the Commission allegedly subsumed, within the current scheme, the payments which had already been received by existing installations under the previous scheme, applied the 2014 Guidelines to those payments, took account of payments which had already been received by existing installations under the previous scheme in the assessment of the compatibility of the current scheme with the internal market or, lastly, erred in classifying payments already received by existing installations as ‘State aid’, would be favourable to the applicant.

56In the second 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 applicant, 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, in the context of the contested decision, to assess whether the payments which were originally foreseen under the previous scheme and which were ultimately not paid, were compatible or not with the internal market.

57Furthermore, in the application, the applicant notes that the Kingdom of Spain decided to repeal the previous scheme, to replace the previous scheme with the current scheme and to notify the current scheme to the Commission. Nor does the applicant claim that the replacement of the previous scheme with the current scheme was imposed by the Commission or, at a more general level, follows from the obligation of the Kingdom of Spain to comply with the rules on State aid.

58Thus, the applicant has not put forward any argument capable of calling into question the fact that it was no longer eligible for the previous scheme as a result of a decision taken freely by the Kingdom of Spain to adopt the current scheme rather than as a consequence of the contested decision. The applicant has therefore not shown that the annulment of the contested decision would consequently require the Kingdom of Spain to apply the previous scheme and enable it to continue to benefit from the previous scheme. In other words, it has not been established that the annulment of the contested decision would affect the decision of the Kingdom of Spain to substitute a new scheme for the previous scheme or that such an annulment could potentially compel that Member State to reintroduce the previous scheme.

59Therefore, the applicant has not established that the annulment of the contested decision, on the ground of the arguments it raises in the second plea, would procure an advantage for it.

60In addition, the applicant has also not shown that the annulment of the contested decision founded on the third plea in support of the action would procure an advantage for it. As appears from paragraph 41 above, the third plea in the action is based on a breach of the obligation to state reasons as regards the same factual and legal questions as those referred to in the second plea.

61By its first plea in law, the applicant claims that the Commission breached its obligation to initiate the formal investigation procedure. In support of that plea, the applicant claims that the Commission faced serious difficulties in assessing the compatibility of the aid in question. It claims that those difficulties are demonstrated, first, by the length of time which the preliminary investigation took and its circumstances and, second, by the substance of the contested decision. As regards the substance of the decision, the applicant puts forward the same arguments as those put forward in relation to the second plea (see paragraphs 36 to 39 above).

62In its reply and in its response to a written question addressed to it by the Court, the applicant claims that the annulment of the contested decision would significantly improve its position in relation to the Kingdom of Spain. In that regard, it notes, first, that the case would be transferred to the Commission which would be required to initiate the formal investigation procedure and, second, that it would have a role to play in that procedure and could influence the future decision of the Commission. For example, the applicant notes that the Commission would be required to justify the inconsistent approach of, on the one hand, retroactive cuts to incentives for the production of electricity from renewable energy sources authorised in the contested decision and, on the other hand, Proposal for a Directive COM(2016) 767 final of the European Parliament and of the Council of 23 February 2017 on the promotion of the use of energy from renewable sources (recast).

63First, in that regard, 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).

64However, 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).

65The 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).

66Thus, in so far as the applicant relies on a failure to initiate the formal investigation procedure, it should be made clear that, as an undertaking benefiting from the aid, its interest in bringing proceedings is not based on the fact that, if a procedure had been initiated, it 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).

67Second, as appears from paragraphs 42 to 59 above, the applicant has not shown that the annulment of the contested decision on the grounds submitted in the applicant’s second and third pleas would procure an advantage for it. 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 applicant.

68Third, in its application, the applicant has 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 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. The applicant does 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. It therefore cannot rely on any potential inconsistency in approach between, on the one hand, alleged retroactive cuts to incentives for the production of electricity from renewable energy sources which, it maintains, were authorised in the contested decision and, on the other hand, Proposal for a Directive COM(2016) 767 final of the European Parliament and of the Council of 23 February 2017 on the promotion of the use of energy from renewable sources (recast).

69The applicant has not therefore shown that the annulment of the contested decision on the ground of a breach of its procedural rights would procure an advantage for it.

70In the light of all of the foregoing, it must be found that the applicant has not shown that the annulment of the contested decision would procure an advantage for it and therefore that it has an interest in bringing proceedings.

The Court therefore dismisses the action as inadmissible on the ground of the applicant’s lack of an interest in bringing proceedings. It is not necessary to rule either on the applicant’s application for a measure of organisation of the procedure or, in accordance with Article 142(2) of the Rules of Procedure, on the applications to intervene of the Kingdom of Spain and of EDP España.

Costs

72Under 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 applicant has been unsuccessful in its action, it must be ordered to bear its 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.

Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the applicant, 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.Solwindet las Lomas, SL shall bear its own costs and those incurred by the European Commission, with the exception of the costs relating to the applications to intervene.

4.Solwindet las Lomas, 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.