14.2.2022

Official Journal of the European Union

C 73/11

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(Case C-693/21 P)

(2022/C 73/15)

Language of the case: Spanish

Parties

Appellant: EDP España, S.A. (represented by: J.L. Buendía Sierra, A. Lamadrid de Pablo, V. Romero Algarra, lawyers)

Other parties to the proceedings: Naturgy Energy Group, S.A., formerly Gas Natural SDG, S.A., European Commission, Viesgo Producción, S.L., sucessor in title to Viesgo Generación, S.L.

Form of order sought

The appellant claims that the Court should:

—declare admissible and well-founded the grounds of appeal set out in the present appeal,

—set aside the judgment of the General Court of 8 September 2021 in Case T-328/18, Naturgy Energy Group, S.A. v Commission,

—annul Commission Decision of 27 November 2017 concerning State Aid SA.47912 (2017/NN) (1) — Environmental incentive adopted by Spain in favour of coal-fired power plants, initiating the formal investigation procedure laid down by Article 108(2) of the Treaty on the Functioning of the European Union.

—Order the European Commission to pay the costs.

Pleas in law and main arguments

The appellant respectfully requests that the judgment under appeal should be set aside on the following grounds:

First ground of appeal: the Court misinterpreted and misapplied the obligation to state reasons with respect to the concept of selectivity.

The appellant submits that the Court should avoid drawing the legal inference which arises from the case-law of the Courts of the European Union, the application of which it disputes in the present case, that is to say that as a consequence of the failure to state reasons in relation to the concept of selectivity, the decision to initiate must be annulled. Moreover, the Court seeks to remedy that failure to state reasons by reconstructing it, contrary to the case-law, in an attempt to state reasons on the basis of various paragraphs of the decision.

Second ground of appeal: in the event that the Court of Justice does not uphold the first ground of appeal, the General Court incorrectly interpreted and applied Article 107(1) TFEU, in relation to the concept of selectivity.

In particular, the appellant submits that the Court erred in considering that its review should be limited to the issue of whether the Commission committed a manifest error of assessment. The General Court erred in that it focused its analysis on whether the parties had ‘manifestly’ succeeded in proving that the Commission erred in its analysis and not on the relevant issue, that is to say whether or not the Commission erred in analysing the selectivity. In any event, even if that were the applicable test, the General Court should have concluded that the Commission committed a manifest error of assessment in examining the requirement of selectivity.

(1) OJ 2018 C 80, p. 20.

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