Official Journal of the European Union

C series

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C/2024/4736

5.8.2024

(Case T-309/24)

(C/2024/4736)

Language of the case: German

Parties

Applicant: Hanseatic Energy Hub GmbH (Hamburg, Germany) (represented by: C. von Hammerstein, H. Heller and S. Schneider, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the defendant’s decision of 27 July 2023 (State Aid SA.102163 (2023/N) – Germany, Aid for the construction and operation of the Brunsbüttel on-shore LNG (1) Terminal);

—order the defendant to pay the costs.

Pleas in law and main arguments

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

1.First plea in law, alleging lack of incentive effect on account of sufficient feasibility of the project without State aid

According to the applicant, the authorised aid is not suitable for facilitating the development of an economic activity within the meaning of Article 107(3)(c) TFEU, because it has no incentive effect on the beneficiaries. The beneficiaries would also have constructed the planned LNG terminal without aid. The applicant is building its own LNG terminal without State aid, which proves that the beneficiaries did not have to be encouraged to build the terminal with State money. The funding gap alleged by the beneficiaries is so small that it could have been closed by adjusting the price of the long-term capacity booking contracts by only 2 %. Customers would have agreed to this minor adjustment as interested parties in the terminal construction, particularly, since the beneficiaries had charged prices that were significantly too low.

2.Second plea in law, alleging no necessity and appropriateness of the aid on account of a lack of market failure

In the applicant’s view, the aid is neither necessary nor appropriate because there is no market failure. The funding gap alleged by the defendant is not evidence of a market failure because it had merely been caused by the beneficiaries’ economically inefficient activity, which had concluded their long-term supply contracts at too low a price and on the basis of too low an expected return. An ordinary economic operator would have taken significantly higher expected returns as a calculation basis and accordingly charged its customers higher prices. This would have closed the funding gap and the terminal could be built without State aid.

3.Third plea in law, alleging no appropriateness on account of an implausible calculation of the funding gap and the amount of aid

The applicant submits that the aid exceeds the stated funding gap. The defendant fails to take into account that not only the preferential dividend, but also the State participation in the project itself constitutes aid. A private investor, rather than the State, would not have participated in the project irrespective of the aid dividend mechanism on the ground of a lack of expected returns. In addition, the amount of aid may be significantly higher as a result of an increase in equity (in particular due to higher construction costs).

4.Fourth plea in law, alleging no appropriateness on account of a lack of incentives for efficient management by beneficiaries

According to the applicant, the aid creates disincentives for the beneficiaries to generate a low return by increasing construction costs, setting prices too low or otherwise generating a low return, because the amount of the aid can thus be maximised.

5.Fifth plea in law, alleging significant distortion of competition on the market for LNG import terminals and on the downstream wholesale gas market

In the applicant’s view, the aid leads to significant distortions of competition on the market for LNG import terminals and on the downstream wholesale gas market because it enables the beneficiaries to obtain lower prices than their competitors and the beneficiaries’ customers to import LNG at significantly lower prices than customers of other LNG terminals.

6.Sixth plea in law, alleging infringement of Article 296 TFEU on account of a failure to state reasons

The applicant submits that the defendant has failed to state reasons for its conclusion that there is no distortion of competition. The defendant’s reference to the exemption decision is irrelevant because it concerns the effects of the aid and not the regulatory exemption on competition.

7.Seventh plea in law, alleging failure to initiate the formal investigation procedure under Article 108(2) TFEU despite serious difficulties

According to the applicant, the defendant has failed to initiate the formal investigation procedure under Article 108(2) TFEU despite serious difficulties. Those difficulties arise from the other pleas in law, the complexity of the aid and the long duration of the preliminary examination procedure.

* Liquefied Natural Gas.

ELI: http://data.europa.eu/eli/C/2024/4736/oj

ISSN 1977-091X (electronic edition)

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