Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 17 January 2019(1)

Case C‑706/17

Achema AB

Orlen Lietuva AB

AB ‘Lifosa’

v

Valstybinė kainų ir energetikos kontrolės komisija (VKEKK)

joined parties:

Lietuvos Respublikos energetikos ministerija,

UAB, ‘BALTPOOL’

(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania))

(State aid — Concept of ‘State resources’ — Selectivity — Effects on trade —Distortion of competition — Services of general economic interest in the electricity sector — Altmark conditions)

1.        By its questions, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) essentially asks whether certain aspects of the Lithuanian regime for the provision of public interest services (‘PIS’) in the electricity sector and of its financing mechanism (‘the PIS scheme’) must be regarded as giving rise to State aid within the meaning of Article 107(1) TFEU.

2.        The present case offers the Court the opportunity to refine its case-law, in particular, on the concept of ‘State resources’, and on the conditions laid down in the case-law devolving from the judgment of the Court of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg (‘Altmark’). (2)

I.      Legal framework

A.      Lithuanian law

3.        According to the referring court, the relevant provisions of national law are laid down in the following legal instruments, as in force at the material time: the Elektros energijos įstatymas, n° VIII 1881 (Lithuanian Law on electricity No VIII 1881) of 20 July 2000; the Lietuvos Respublikos atsinaujinančių išteklių energetikos įstatymo nº XI 1375 (Lithuanian Law on energy from renewable sources No XI 1375) of 12 May 2011; the Lietuvos Respublikos elektros energetikos sistemos integracijos į Europos elektros energetikos sistemas įstatymas Nr. XI 2052 (Lithuanian Law on integration of the electricity system into European electricity systems No XI 2052) of 12 June 2012; the Lietuvos Respublikos atsinaujinančių išteklių energetikos įstatymo 2, 11, 13, 14, 16, 20, 21 straipsnių pakeitimo ir papildymo įstatymas Nr. XII 169 (Lithuanian Law implementing the Law amending and supplementing Articles 2, 11, 13, 14, 16, 20 and 21 of the Law on energy from renewable sources No XII 169) of 17 January 2013; and the legal measures implementing those laws, including the Lietuvos Respublikos Vyriausybės nutarimo Nr. 916 dėl viešuosius interesus atitinkančių paslaugų elektros energetikos sektoriuje teikimo tvarkos aprašo patvirtinimo (Resolution No 916 of the Government approving the procedure for the provision of public interest services in the electricity sector) of 18 July 2012; and the Vyriausybės Nutarimas Nr. 1157 ‘Viešuosius interesus atitinkančių paslaugų elektros energetikos sektoriuje lėšų administravimo tvarkos aprašas’ (Resolution No 1157 of the Government governing the procedure for the administration of monies for public interest services in the electricity sector) of 19  September 2012 (‘the national legislation at issue’).

4.        The provisions of those legal instruments, insofar as they are relevant for the present proceedings, will be summarised in points 12 to 15 below.

II.    Facts, procedure and the questions referred

5.        The applicants in the main proceedings — Achema AB, Orlen Lietuva AB and AB ‘Lifosa’ (‘Achema and Others’) — are companies registered and active in the Republic of Lithuania which, among other things, operate combined heat and power plants. The electricity generated by those plants is used for meeting their own electricity needs or supplied to other undertakings. Those companies also purchase electricity from independent suppliers operating in Lithuania.

6.        In accordance with the relevant national legislation, Achema and Others were, as any other consumer of electricity, required to pay a certain amount for the PIS services provided to them in 2014.

7.        Achema and Others brought actions before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking the annulment of points 1.2 to 1.4, 1.7, 2 and 3 of the decision of the National Commission for Energy Control and Prices of Lithuania (‘the NCECP’) of 11 October 2013 (as amended by Decision No O3-704 of 22 November 2013) (‘the contested decision’). In the contested decision, the NCECP had determined the overall amount of monies due in respect of 2014 for electricity undertakings providing PIS (‘PIS providers’) (point 1) and the PIS price for Lithuanian (final) electricity consumers, including the applicants (points 2 and 3).

8.        By judgment of 9 February 2016, that court dismissed the actions brought by Achema and Others as unfounded.

9.        Achema and Others lodged appeals against that judgment with the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania). That court, entertaining doubts as to the correct interpretation of the relevant provisions of EU law, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘Is the legislative framework for the [PIS scheme] – established [by the national legislation at issue] – as in force in 2014, or part thereof, to be regarded as State aid (a State aid scheme) for the purposes of Article 107(1) [TFEU], including the following questions:

–        in circumstances such as those in the present case, is Article 107(1) TFEU to be interpreted as meaning that PIS monies are, or are not, to be regarded as State resources?

–        is Article 107(1) TFEU to be interpreted as meaning that a case where an obligation is imposed on network operators (undertakings) to purchase electricity from electricity producers at a fixed price (rate) and/or to balance the electricity, and the losses sustained by network operators on account of that obligation are compensated with monies which are possibly attributable to State resources, is not to be regarded as aid granted to electricity producers through State resources?

–        is Article 107(1) TFEU to be interpreted as meaning that, in circumstances such as those in the present case, the following support is, or is not, to be regarded as selective and/or capable of affecting trade between Member States: support granted to an undertaking which implements a project of strategic importance, such as NordBalt; support granted to undertakings which are entrusted with ensuring the security of electricity supply for a given period; support to compensate for the losses reflecting market conditions and actually sustained by persons, such as the developers of solar photovoltaic plants who are at issue, by reason of the State’s refusal to fulfil commitments entered into (by reason of national regulatory changes); support granted to undertakings (network operators) with the objective of compensating for actual losses sustained in their discharging of the obligation to purchase electricity at a fixed price from electricity producers providing PIS and to balance the electricity?

–        is Article 107(1) TFEU, applied in conjunction with Article 106(2) TFEU, to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme in question (or part thereof) is, or is not, to be regarded as satisfying the criteria laid down in paragraphs 88 to 93 of the judgment of the Court of Justice [in Altmark]?

–        is Article 107(1) TFEU to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme (or part thereof) is, or is not, to be regarded as distorting or threatening to distort competition?’

10.      Written observations in the present proceedings have been submitted by Achema, Baltpool, the Lithuanian Government and the Commission. They also presented oral argument at the hearing held on 6 November 2018.

III. Analysis

11.      Before examining the specific issues raised by the present proceedings, it seems to me useful briefly to illustrate the key aspects of the Lithuanian regime for PIS in the electricity sector, as explained by the referring court, and then to make a few preliminary remarks.

A.      The Lithuanian PIS scheme

12.      According to the referring court, PIS are essentially services provided, or activities carried out, in the general interest, in accordance with the national legislation at issue. During the period relevant for the present proceedings, PIS included inter alia: generation of electricity from renewable energy sources and its balancing; generation of electricity in a cogeneration mode at combined heat and power plants when such plants supply heat to district heating systems and the savings of primary energy are such that combined heat and power production can be considered efficient; generation of electricity at specified plants where electricity generation is necessary in order to ensure the security of electricity supply; implementation of strategic projects in the electricity sector related to improving energy security by installing interconnectors with electricity systems of other States and/or by connecting the electricity systems of the Republic of Lithuania with electricity systems of other Member States (such as the ‘Inter-system electricity link between Lithuania and Sweden’ project (also known as NordBalt)); and development of the solar photovoltaic plant project.

13.      Every year, in accordance with the procedures provided for in the law, the Lithuanian competent public authorities identify PIS providers, define the scope of PIS, and establish the conditions governing, and the amount of, the compensation due for the PIS provided. All electricity consumers pay the PIS price, in the amount determined by the NCECP, on the basis of the quantity of electricity actually consumed to meet their own need. The payment of the PIS price is either included in the price of the purchased electricity or made separately to network operators.

14.      Lithuanian electricity network operators transfer the monies collected from electricity consumers (‘the PIS monies’) to the administrator of PIS monies, UAB Baltpool, a State-controlled private law entity. In turn, Baltpool pays PIS providers for their services, in accordance with the procedure laid down by law. Baltpool is not financed through the public budget; its administrative costs are covered by the same PIS monies.

15.      PIS monies cannot be used for purposes other than payment for the provision of PIS, and do not form part of the State budget. Outstanding amounts from consumers who fail to pay the PIS price are recovered in accordance with the general procedure laid down for civil matters. Those consumers are not subject to liability under public law rules.

B.      Preliminary remarks

16.      Against that background, it must be first of all be emphasised that, when the Court is requested to give a preliminary ruling, its task is to provide the national court with guidance on the scope of the relevant rules of EU law so as to enable that court to apply the rules correctly to the facts in the case before it, and it is not for the Court of Justice to apply those rules itself, a fortiori because it does not necessarily have available to it all the information essential for that purpose. (3) In that connection, the Court has consistently held that national courts are authorised to interpret and apply the concept of ‘State aid’ and, in proceedings pending before them, it is for those courts to verify that the requirements laid down in Article 107(1) TFEU are met. (4)

17.      This ‘division of labour’ between the Court of Justice and national courts is of paramount importance. Even more so in a case such as the present one: the national framework applicable in the main proceedings is rather complex and includes various measures that could, at least potentially, be relevant under Article 107(1) TFEU. Furthermore, on some issues, the national court interrogates this Court on aspects which are mainly factual and rather technical, essentially asking the Court to endorse its analysis. Yet, as Baltpool correctly pointed out at the hearing, the Court lacks the data and other factual information required to confirm or invalidate the national court’s preliminary findings. With regard to those aspects, it will thus be for the national court to make the final determinations, in the light of the guidance that will be provided by the Court on the meaning and scope of Article 107(1) TFEU.

18.      Next, it may also be useful to emphasise that, according to settled case-law, categorisation as ‘State aid’ within the meaning of Article 107(1) TFEU requires all the conditions set out in that provision to be satisfied. First, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition. (5)

19.      Having said that, I will now turn to the analysis of the legal issues raised in the questions referred.

C.      First question

20.      The first question referred concerns the first condition listed in point 18 above. By that question, the referring court asks whether Article 107(1) TFEU is to be interpreted as meaning that funds such as the PIS monies ought to be regarded as State resources.

21.      To my mind, that question calls for an affirmative answer.

22.      At the outset, it must be borne in mind that, according to settled case-law, if advantages are to be categorised as aid within the meaning of Article 107(1) TFEU, they must both be granted directly or indirectly through State resources and their grant must be attributable to the State. (6)

23.      In the present case, it is undisputed that the measures alleged to constitute aid find their origin in legislative and regulatory measures adopted by the Lithuanian authorities. Those measures can, therefore, be attributed to the State.

24.      The real issue is, instead, whether those measures involve State resources for the purposes of Article 107(1) TFEU.

25.      It is clear that the concept of ‘State resources’ encompasses all the financial resources which the State may use to support undertakings: this encompasses not only monies that directly or indirectly come out of the public purse or revenues that the State forgoes, but also resources that, despite not being permanently held by the Treasury, constantly remain under public control. (7) Put simply, the latter are funds that, even if originating from private persons, are collected by the State, on behalf of the State, or by virtue of a State intervention, and that are made available to the competent national authorities who have the power to decide on their final use.

26.      This seems to be the case with regard to PIS monies in the context of the Lithuanian PIS scheme.

27.      From the moment they are collected from the electricity consumers to the point in time when they are distributed among PIS providers, PIS monies are under public control. In particular, it is the public authorities that identify the services that are to be considered PIS in each given year, and that select the undertakings that will qualify as PIS providers. It is also a public body — the NCECP — that determines the amount to be charged to the electricity consumers for the PIS services. Once collected by the electricity network operators, PIS monies are transferred to Baltpool, an entity that, although set up as a private-law company, is controlled by the State. Baltpool manages the funds received, distributing them among PIS providers according to criteria determined by law, while retaining a part of those funds to cover its administrative costs. Accordingly, the entire life cycle of PIS monies is strictly regulated.

28.      Therefore, the situation at issue in the present proceedings must be distinguished from that examined by the Court in other cases, such as PreussenElektra (8)and ENEA, (9) which also concerned national renewable energy support schemes. In those cases, the Court found that a mere obligation, imposed by the State upon private undertakings, to purchase electricity at a cost that may be higher than the normal market price did not constitute State aid within the meaning of Article 107(1) TFEU. What was key, in those cases, is that — unlike in the PIS scheme at issue — there was no financing mechanism administered by the State. There was no collection and distribution of monies paid by electricity consumers over which the State could exercise some form of control.

29.      Nor is the Lithuanian PIS scheme comparable with the measures examined by the Court in Pearle and Others (10) and in Doux Élevage. (11)

30.      In those cases, notwithstanding the fact that the financial contributions imposed upon certain undertakings were fixed by law and collected and administered by entities to which the State had granted certain powers, the Court still held the measures in question to fall outside the scope of Article 107(1) TFEU. However, in both cases, the entity managing the funds served merely as a vehicle for collecting and allocating resources destined to activities undertaken in the commercial interest of the very undertakings which were required to pay the contributions. (12) The compulsory contributions had thus been established at the initiative of private undertakings which also decided their final use. Neither in Pearle and Others nor in Doux Élevage did the monies collected have to be used in accordance with instructions from public authorities or in furtherance of a public interest objective determined by those authorities. (13)

31.      By contrast, under the national legislation at issue, Baltpool may by no means be regarded as ‘a vehicle’ acting under the direction, and pursuing the commercial interest, of the entities which are required to pay the contributions. Indeed, Baltpool uses the funds collected in furtherance of an agenda set by the State. From an economic standpoint, the beneficiaries of the activities subsidised are not the same parties who finance the measures of support. There is, consequently, a transfer of resources from consumers to certain undertakings, under the direction of the State authorities.

32.      The fact that Baltpool does not enjoy any discretion in choosing how the funds collected are to be used does not detract from the fact the it is the public authorities that take any decisions in that respect. (14) As explained in point 27 above, the funds collected are to strictly follow the path set out in the national legislation at issue. As a matter of fact, this actually demonstrates that the PIS monies are under State control.

33.      Similarly, the fact that, in the event that consumers do not pay the amounts due, Baltpool is to act before civil courts according to ordinary procedures is, in this context, of little relevance. I believe this is inextricably linked to the fact that the Lithuanian authorities have decided to confer the collection of PIS monies to network operators and the administration of those monies to an entity set up under private law. That aspect, which the Court took into account in determining the nature of private-law associations of inter-trade organisations in Doux Élevage, (15) has no bearing in the present case. Indeed, there is no doubt that, despite having been established in the form of a private-law company, Baltpool is controlled by the State and, with regard to the use of PIS monies, is bound to act as provided for in the relevant national laws. (16)

34.      In essence, I am of the view that the Lithuanian PIS scheme bears a strong resemblance to the French regime for electricity examined by the Court in Association Vent de Colère! and Others. (17) In that case, the Court held that a mechanism for off-setting the additional costs imposed on undertakings, because of an obligation to purchase wind-generated electricity at a rate higher than the market price that was financed by final consumer, had to be regarded as an intervention by the State or through State resources within the meaning of Article 107(1) TFEU. As I see it, the main reason for that conclusion was that the sums collected from consumers — in the amounts determined by the Minister for Energy — were entrusted to the Caisse des dépôts et consignations, a public body which acted as intermediary in the management of the funds. (18) In fact, asked at the hearing whether there was any significant factual difference between the situation examined by the Court in Association Vent de Colère! and Others and the one at issue in the main proceedings, neither the Lithuanian Government nor Baltpool could provide any meaningful answer.

35.      The judgment of the Court in Essent Netwerk Noord and Others (19) lends further support to the view that PIS monies constitute State resources under EU State aid rules. In that case — a reference from a Netherlands’ court — the Court held that national rules imposing a surcharge, to be borne by consumers, on the price of transmitting electricity collected by network operators and transferred to a designated company which was in turn responsible for administering and apportioning the monies, involved State resources within the meaning of Article 107(1) TFEU.

36.      It is true that, when considered in purely economic terms, the measures examined by the Court in cases such as PreussenElektra and ENEA (20) and those examined in cases such as Essent Netwerk Noord and Others and Association Vent de Colère! and Others (21) may appear largely similar. However, as Advocate General Mengozzi explained in his Opinion in Essent Netwerk Noord and Others, those measures are, from a legal viewpoint, to be classified quite differently. (22) Although Article 107(1) TFEU is only concerned with the effects of a State measure, it is a truism that the manner in which a measure is structured and operates may have consequences for the legal framework applicable thereto. A State measure may, for example, not qualify as aid under Article 107(1) TFEU but, depending on the circumstances, its compatibility with the Treaties may also need to be examined in the light of other provisions of EU law, such as the internal market rules. (23)

37.      In the light of the above, the answer to the first question referred should, in my view, be that, in circumstances such as those in the main proceedings, Article 107(1) TFEU is to be interpreted as meaning that PIS monies, such as those at issue in the main proceedings, are to be regarded as State resources.

D.      Second question

38.      By its second question, the referring court seeks to know what entities ought to be regarded as beneficiaries of aid granted through PIS monies, where the relevant measures under the PIS scheme impose an obligation on electricity network operators to purchase electricity from PIS providers at a set price and to balance electricity generated by them. In particular, the referring court wonders whether it is the network operators or the electricity producers that receive an economic advantage from PIS monies.

39.      My view is that the (indirect) beneficiaries of such a measure are the electricity producers, not the network operators.

40.      Indeed, in the context of the measure which is the object of the second question referred, PIS monies are — as I understand — merely meant to offset the extra costs that network operators may bear by reason of the obligation, imposed upon them, to purchase certain quantities of electricity at set prices, which may be higher than normal market prices. There is no element in the file which points to a possible net benefit that network operators might derive from PIS monies. Moreover, in the light of the explanations provided at the hearing by the Lithuanian Government and Baltpool, it seems that network operators may not pass on (some or all of) the extra costs to their customers, which would have entailed the risk of the operators receiving overcompensation. (24)

41.      By contrast, by offsetting network operators’ extra costs due to the abovementioned purchase obligation, PIS monies make it possible for some energy producers to sell certain quantities of electricity at a price higher than normal market price, or in any event to sell larger quantities. Those energy producers are thus able to generate greater revenues than those they would have under normal market conditions. Accordingly, although the PIS monies may actually be paid to other network operators, electricity producers are the indirect beneficiaries of those monies. (25)

42.      For those reasons, I propose that the Court should answer the second question referred to the effect that, in a situation such as that in the main proceedings — where a State measure requires electricity network operators to purchase electricity from electricity producers at a set price and to balance electricity generated by them, providing for the extra costs borne by those operators to be offset with contributions paid by final consumers — the electricity producers are to be regarded as aid beneficiaries for the purposes Article 107(1) TFEU.

E.      Third and fifth questions

43.      By its third question, the referring court essentially asks whether support granted, with PIS monies, to certain activities carried out in Lithuania in the electricity sector fulfils the criteria of selectivity and effects on trade between Member States for the purposes of Article 107(1) TFEU. By its fifth question, that I consider useful to examine after the third question since the two can be answered jointly, the referring court seeks to know whether Article 107(1) TFEU is to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme is to be regarded as distorting or threatening to distort competition.

44.      The measures which the Court is asked to examine from that angle are the following: (i) the support granted to an undertaking which implements a project of strategic importance, such as NordBalt; (ii) the support granted to undertakings which are entrusted with ensuring the security of electricity supply for a given period; (iii) the support granted to compensate for the losses actually sustained by undertakings such as the developers of solar photovoltaic plants; and (iv) the support granted to network operators with the objective of compensating for actual losses sustained in their discharging of the obligation to purchase electricity at a set price from electricity producers providing PIS and to balance the electricity (‘the measures at issue’).

45.      As explained in points 16 and 17 above, the final determinations on these issues are a matter for the referring court. However, in order to provide the referring court with all the necessary elements of interpretation of the applicable provisions of EU law, I shall proceed as follows. First, I shall illustrate the most relevant case-law and, on that basis, I shall attempt to give more specific guidance to the referring court as to the conditions in which the measures at issue may fulfil the criteria of selectivity, effects on trade and distortion of competition.

46.      To begin with, I would like to point out that, in order to assess whether the criterion of selectivity is fulfilled, it is necessary to determine whether, under a particular statutory scheme (also known as ‘the reference framework’), a State measure is such as to favour certain undertakings or the production of certain goods in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question. (26) Conversely, general measures applicable without distinction to all economic operators in a Member State and conferring an advantage that is available to anyone satisfying the conditions thereof are not selective and, consequently, fall outside the scope of Article 107(1) TFEU. (27)

47.      With regard to the effects on trade, it must be borne in mind that, for the purpose of classifying a national measure as State aid, it is not necessary to establish that the aid has a real effect on trade between Member States, but only to examine whether that aid is liable to affect such trade. However, the effect on trade between Member States cannot be purely hypothetical or presumed. Thus, it must be determined whether, and if so how, the measure concerned is liable by its foreseeable effects to have an impact on trade between the Member States. In particular, when aid granted by a Member State strengthens the position of an undertaking as compared to other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid. In that connection, it is not necessary that the beneficiary undertakings are themselves involved in intra-Community trade. Where a Member State grants aid to undertakings, domestic activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced. (28)

48.      Last, as far as the condition relating to the distortion of competition is concerned, it should be stressed that, according to settled case-law, aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition. (29)

49.      It is against that background that I will address the issues raised by the third question referred.

1.      Selectivity

50.      First, the support granted to undertakings which are entrusted with ensuring the security of electricity supply for a given period, the support granted to compensate for the losses actually sustained by undertakings such as the developers of solar photovoltaic plants, and the support granted to network operators with the objective of compensating for actual losses sustained in the discharge of the obligation to purchase electricity at a set price from electricity producers providing PIS and to balance the electricity appear prima facie to constitute measures that benefit only the undertakings active in a specific sector or providing a specific type of services.

51.      It seems to me that those measures are intended to relieve the beneficiary undertakings from certain costs that they would otherwise have had to bear themselves. The referring court itself, in its request for a preliminary ruling, describes as ‘uncontested’ the fact that a number of measures under the PIS scheme guarantee the beneficiary undertakings some profits at no risk.

52.      It is true that, in Asteris, the Court found that damages which the national authorities may be ordered to pay to undertakings in compensation for damage they have caused to those undertakings do not constitute aid within the meaning of (what is now) Article 107(1) TFEU. (30) However, in that case the Court was referring to sums paid, or to be paid, in the context of a Member State’s non-contractual liability. The reason is clear: a sum that is merely intended to indemnify a person for the damage suffered because of a civil or administrative wrong committed by a State authority does not, strictly speaking, procure any economic advantage to that person within the meaning of Article 107(1) TFEU.

53.      However, that case-law is not pertinent in the present case. The losses which the State measures in question compensate are, as far as I understand, not claimed to be the consequence of any unlawful conduct of the public authorities. Those losses are simply costs incurred by the undertakings in question in connection with their economic activities.

54.      In this context, I would add that it is irrelevant whether decisions with regard to investments or procurements by the beneficiaries have been provoked or encouraged by the authorities’ promise of public support. The fact that, in the absence of the measures in question, some economic operators would have made different business choices does not detract from the aid nature of those measures. Most aid schemes have precisely that objective: to promote some specific economic activity which the authorities consider to be in the public interest. Yet, the causes and aims of public intervention are of no relevance under Article 107(1) TFEU: that provision defines measures as aid only in relation to their effect on the single market. (31)

55.      With regard, finally, to the assessment of the selectivity of forms of support granted to undertakings which implement a project of strategic importance, such as NordBalt, the analysis is a more complex one.

56.      At the outset, it must be borne in mind that the financial support for construction infrastructures intended for general use (as opposed to a dedicated purpose), and that thus benefits no particular user, is generally considered not to be selective within the meaning of Article 107(1) TFEU. (32) That is most likely the case, in my view, of the infrastructures connecting the Lithuanian and Swedish electricity networks.

57.      That does not mean, however, that the financial support granted to the undertaking building that infrastructure does not constitute aid within the meaning of Article 107(1) TFEU. Clearly, were the Lithuanian authorities merely purchasing a service (construction of certain infrastructures) from a specific undertaking, among the many which are present on the market and capable of providing that service, the existence of aid would depend mainly on the price and terms agreed for the procurement, taking into account the procedure followed in order to select the provider. The well-established market economy operator principle (‘MEOP’) would be of guidance in that analysis. (33)

58.      Yet, from the information included in the case file, I understand that the NordBalt project has been designated as one of strategic importance and the construction works required have been reserved by law to a specific undertaking (LITGRID AB). A project of that kind — because of its magnitude, cost and significance — falls, after all, normally within the responsibility of the State. It is not unusual that public authorities entrust the development of important infrastructures to companies set up under private law but of which they are shareholders. (34) As I see it, the main issue may be rather a question of procurement by the State. However, as for other factual aspects of the measures at issue in the main proceedings, the Court does not dispose of the information necessary to make final determinations under Article 107(1) TFEU.

2.      Effects on trade between Member States

59.      In Fondul Proprietatea, (35) the Court was required to assess the possible aid nature of a measure adopted to support an undertaking active in the electricity sector. In that regard, the Court emphasised that the fact that an economic sector, such as the energy sector, has been the subject of liberalisation at EU level may serve to determine that a State measure alleged to be aid is liable to affect trade between the Member States within the meaning of Article 107(1) TFEU. The Court noted that, by virtue of such liberalisation, electricity is subject to cross-border trade. Consequently, the Court found that, subject to verification by the national court, a measure adopted by the Romanian authorities to support an undertaking active in the electricity sector satisfied the ‘effects on trade’ requirement.

60.      I see no objective reason, in the present case, to depart from the Court’s findings in Fondul Proprietatea.

61.      The fact that the beneficiary undertakings may not be active outside of the national borders is of no significance. Indeed, by reinforcing the local operators, the measures at issue may hinder access to the Lithuanian energy market by foreign undertakings. This may differ, however, with respect to support granted to an undertaking entrusted with the task of implementing a project of strategic importance such as NordBalt, as explained in point 58 above.

3.      Distortion of competition

62.      With regard, finally to the condition concerning distortion of competition, it may be sufficient to refer again to the recent judgment in Fondul Proprietatea. (36)

63.      In that case, in line with well-established case-law, the Court found the measure of support at issue to be, in principle, capable of distorting competition on the electricity market. The Court pointed out that the fact that an economic sector, such as the energy sector, has been the subject of liberalisation at EU level may serve to determine that the aid in question has a real or potential effect on competition and affects trade between the Member States.

64.      I take the view that those considerations are equally valid in the context of the present proceedings. I am, in fact, not persuaded by the argument put forward by the Lithuanian Government according to which, in 2014, the Lithuanian electricity market was still relatively isolated. In its request for a preliminary ruling, the referring court itself emphasises that, in the period in question, the Lithuanian electricity network was connected to the network of other Member States (such as Estonia) and there was lively competition on the market. In any event, measures of public support that favour incumbents may well deploy lasting distortive effects in a market that is being progressively opened up to foreign competition.

65.      Undertakings active in the production of electricity, or in the development of solar photovoltaic plant projects, based in Lithuania are clearly in competition with similar undertakings based in other Member States. However, the situation may be different as regards undertakings charged with projects of strategic importance like NordBalt, for the reasons explained in points 58 and 61 above.

66.      In conclusion, I propose that the Court should answer the third and fifth questions referred as follows.

67.      First, measures that benefit only undertakings active in a specific sector or providing a specific type of service, by relieving those undertakings from certain costs that they would otherwise have had to bear, are selective for the purposes of Article 107(1) TFEU. Second, measures of support to undertakings active in an economic sector, such as the energy sector, that has been the subject of liberalisation at EU level are, in principle, liable to affect trade between the Member States and distort competition within the meaning of Article 107(1) TFEU. Third, it is for the referring court to ultimately rule on whether those conditions are fulfilled with regard to the measures at issue.

F.      Fourth question

68.      Finally, by its fourth question, the referring court asks whether Article 107(1) TFEU, applied in conjunction with Article 106(2) TFEU, is to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme is to be regarded as satisfying the criteria laid down in paragraphs 88 to 93 of Altmark.

69.      In that judgment, the Court clarified when undertakings discharging public service obligations (‘PSOs’) do not enjoy a real financial advantage from the compensation received in consideration for the discharge of those obligations and are accordingly not in a more favourable competitive position than their competitors. To that end, the Court identified four cumulative conditions (‘the Altmark conditions’) that, if met, ensure that public service compensation does not constitute State aid within the meaning of Article 107(1) TFEU. (37)

70.      However, commentators have often observed that, due to their strict nature, the Altmark conditions are difficult to meet. (38) It is thus important to point out, in this context, that even a measure that does not satisfy those conditions may nonetheless be justified under Article 106(2) TFEU. And, as the Court has made it very clear in Viasat, the Altmark conditions are of no relevance in assessing the compatibility with the internal market of an aid measure granted to a SGEI provider. (39)

71.      That said, the question referred by the national court concerns, in principle, all four Altmarkconditions. However, the arguments developed in the request for a preliminary ruling focus mainly on the first of those conditions. As regards the other three conditions, the referring court merely explained, rather briefly, why in its view those conditions are fulfilled with respect to each of the measures at issue. As explained in points 16 and 17 above, however, it will be for the referring court to rule on those issues, not only in the light of the division of labour between the Court and the national courts set out in the Treaties, but also because there are insufficient elements in the case file to allow the Court to either endorse or refute the national court’s assessment.

72.      Against that backdrop, and with a view to assisting the referring court to the extent possible, I should like to formulate the following observations.

1.      First Altmark condition

73.      The first of the Altmark conditions requires an assessment of whether the undertaking receiving compensation actually has PSOs to discharge, and whether those obligations are clearly defined. That condition has thus several, albeit inextricably intertwined, aspects, essentially corresponding to the following questions: (i) have the public authorities lawfully designated a supply of services as ‘services of general economic interest’ within the meaning of Articles 14 and 106(2) TFEU?, (ii) was one (or more) specific undertakings entrusted with the task of providing PSOs in the context of the supply of those services?, and (iii) are the PSOs clearly defined?

74.      In that regard, I must first point out that, according to a consistent line of decisions, Member States have broad discretion to define what they regard as an SGEI and, consequently, the definition of such services by a Member State can be questioned only in the event of manifest error. (40) That is confirmed also by Article 1 of Protocol No 26 on services of general interest, according to which the shared values of the Union in respect of services of general economic interest include, in particular, ‘the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users’. (41)

75.      However, wide discretion does not amount to unfettered discretion. In order to prevent the common rules from being easily circumvented or largely deprived of effectiveness, the Treaties place some limits on Member States’ leeway. With respect to EU competition rules, Article 106(2) TFEU subjects SGEIs to those rules ‘in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them’ and provided that ‘the development of trade [is not] affected to such an extent as would be contrary to the interests of the Union’.

76.      In the light of those provisions, and taking into account general principles of law such as loyal cooperation and proportionality, I too am of the view that Member States’ discretion with regard to the definition of SGEIs cannot be ‘exercised arbitrarily for the sole purpose of removing a particular sector [of the economy] from the application of the competition rules’. (42) Regardless of the objective pursued by the national authorities, it is for me clear that not merely any service whatsoever may be designated as an SGEI: SGEIs must ‘exhibit special characteristics’ as compared to other services normally provided on the market. (43)

77.      Those characteristic pertain, in the first place, to the nature of the service provided. In particular, the authorities must have reasonable grounds to believe that, in the absence of public intervention, the service in question would probably not be provided at all, or not at the level considered most appropriate. (44) The public intervention must thus aim to satisfy a genuine need, in society, for some specific service that is not (and would not, in the foreseeable future) be adequately satisfied by undertakings operating under normal market conditions. (45) In that connection, I would stress that Directive 2009/72/EC concerning common rules for the internal market in electricity (46) provides, especially in Article 3(2) thereof, that Member States may impose on undertakings operating in the electricity sector, in the general economic interest, PSOs which may relate to various activities listed therein.

78.      Those special characteristics of SGEIs pertain, in the second place, to the manner in which the service is provided. In particular, the service must be provided, to some degree, universally and compulsorily. (47) By universally, I mean that the service must be provided, at least potentially, to all persons that may so request. By compulsorily, I refer to the fact that there must be an obligation to provide the service, a simple authorisation to provide a given service being insufficient to that end. Furthermore, if a service is provided with some continuity, on uniform and transparent terms, and at affordable rates, that may also be relevant to determine whether that service is genuinely provided in the general interest. (48)

79.      Concluding on this point, for a service to be legitimately designated as an SGEI two main conditions must be met: on the one hand, there must be objective reasons why the national authorities consider that public intervention is necessary to ensure the provision of that service and, on the other hand, the service must be provided universally and compulsorily. The fulfilment of those conditions may obviously be reviewed, depending on the circumstances, by national courts (49) or by the EU Courts, (50) albeit — given the national authorities’ broad discretion — only for a manifest error of appreciation. (51)

80.      In the second place, it must be born in mind that the mere fact that a service is designated in national law as being of general interest does not mean that any operator providing that service is entrusted with performing clearly defined PSOs within the meaning of the Altmark case-law. (52) The discharge of PSOs must be entrusted to one or more specific undertakings by an act (or a combination of acts) issued by the public authority. That act may take different forms: typically it is in the nature of a public act (for example, legislative, regulatory, or administrative), (53) although a clear entrustment of a PSO may, in certain circumstances, also stem from a contract. (54) Yet, whatever the nature of the act, the entrustment must be clear and unambiguous: that act ought to define, in a sufficiently precise manner, the nature, duration and scope of the PSOs in question. (55)

81.      Those aspects too may obviously be subject to judicial control before the competent national courts or before the EU Courts in case of a dispute. However, insofar as those aspects are of a technical or factual nature, the exercise of judicial review is not confined to a marginal standard of review. (56)

82.      As regards the application of the abovementioned principles in the present case, I would make the following two observations.

83.      First, there may be economic activities which the State may find reasonable to encourage (for example, the production of green energy, or the development of green technologies) by providing direct financial assistance, or through other measures of support, but which do not involve the supply of services within the meaning of the Altmark case-law. The typical Altmark scenario is the one in which one or more undertakings (the SGEI providers) are obliged by law to discharge certain PSOs in the context of a supply of services potentially to a multitude of recipients. Normally, the recipients are to pay a fee for the services received, which may however be below the ordinary (or hypothetical) market rate, thanks to the compensation awarded by the State to the SGEI providers. The Altmark principles do not easily fit in a scenario where there are, strictly speaking, no economic transactions involving a supply of services. For example, I find it doubtful that all activities designated as PIS under the PIS scheme (for example, the mere construction of a public infrastructure, or the development of solar photovoltaic plant projects) may be regarded as a supply of services for the purposes of the Altmark case-law.

84.      Second, there may be economic activities which, even if they do involve an actual supply of services, are carried out by undertakings voluntarily, without any specific entrustment by the State. As Advocate General Szpunar has pointed out in Renerga, which concerned the compatibility with EU law of certain aspects of the national legislation at issue in the present case, the mere fact that an activity is expressly and lawfully designated as ‘service of general economic interest’ does not suffice for the purposes of the Altmark case-law. (57) There must also be a public act that entrusts one or more specific undertakings with the task of supplying, with some degree of universality and compulsion, (58) the services in question. As regards the case at issue in the main proceedings, it is not clear whether, under the PIS scheme, all undertakings which are designated as PIS providers are actually subject to PSOs for the purposes of EU law. (59)

85.      If that is so, the question whether the dealings between the State and the undertakings concerned conceal some form of support relevant under Article 107(1) TFEU can only be determined outside the Altmark paradigm. The latter concerns, it may be useful to stress again, only undertakings discharging PSOs. Accordingly, public measures which fall outside the scope of the Altmark case-law must be examined in the light of the MEOP, as mentioned in point 57 above.

2.      Second and third Altmark conditions

86.      The second Altmark condition concerns the parameters on the basis of which the compensation is calculated: they must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings.

87.      In turn, according to the third Altmark condition, the compensation paid cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of PSOs, taking into account the relevant receipts and a reasonable profit for discharging those obligations.

88.      Those two conditions, which are complementary, pursue the same aim: to ensure that no overcompensation is paid to the undertakings charged with PSOs.

89.      According to the referring court, both conditions are, with regard to the measures at issue, satisfied. In its view, the national legislation at issue includes specific rules on the conditions under which compensation is due, the amount of compensation due or the procedures followed to calculate that amount, and a mechanism meant to control the use of the funds transferred. With regard to the amounts due as compensation, the legislation includes rules meant to ensure that only the necessary investments, the costs for providing the services and a ‘moderate profit’ are taken into account.

90.      However, as explained in point 71 above, it is not for this Court to confirm or reject that assessment. It is for the referring court to verify the existence of a sufficiently clear and comprehensive body of law that ensures that no overcompensation is paid to the service providers, and to promptly and effectively remedy any possible error in that regard.

3.      Fourth Altmark condition

91.      According to the fourth Altmark condition, where the undertaking which is to discharge PSOs is not chosen in a public procurement procedure, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well managed and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.

92.      Among the four Altmark conditions, this is possibly the most difficult to investigate.

93.      According to the referring court, this condition too appears satisfied with regard to the measures at issue. In the first place, that court notes that providers of PIS relating to electricity generation from renewable energy sources are selected under a bidding procedure on the basis of the price that is the lowest offer price but which is not higher than that set by the NCECP, which also sets the fixed rate for all other producers of electricity from renewable energy sources. As regards support for combined heat and power plants, the national court states that it is provided to all power plants that supply the thermal energy produced to district heating systems where the power plants meet the relevant requirements, including efficiency, and have submitted applications, and considers that those combined heat and power plants which are not engaged in the cogeneration in question or power plants which are not able to ensure efficient cogeneration cannot be evaluated in the same way. It also emphasises that the measure under the PIS scheme in question is applied to those combined heat and power plants whose main task is, in particular, to supply thermal energy to the population, and support is granted only for electricity generated during the heating season.

94.      With regard to the implementation of the NordBalt project, the referring court emphasises that such a project is financed on the basis of true and actual costs which are essentially incurred in paying for goods and services purchased in a public procurement procedure. Costs not higher than those actually incurred and corresponding to the average market prices are also the subject of compensation to developers of solar power plants and the aforementioned network operators.

95.      As in the case of the second and third Altmark criteria, it seems to me that on this point too there is no element in the case file that casts doubt on the preliminary assessment made by the referring court. Nor has the Court, on the other hand, sufficient information to endorse that assessment.

96.      It is thus the task of the referring court to ensure that PIS providers are chosen according to one of the two alternative scenarios that would permit compliance with the fourth Altmark condition. PIS providers may either be chosen pursuant to a public procurement procedure —that is, a sufficiently open and genuine competition (60) — that allows for the selection of the tenderer capable of providing the services in question at the least cost to the community. PIS providers may also be selected, in the absence of a real tender procedure, following the completion of a detailed and transparent analysis of the costs that an efficient and cost-effective undertaking active in that sector would have to incur to discharge its obligations.

97.      In conclusion, the answer to the fourth question referred should, in my view, be that it is for the referring court to determine whether the measures at issue in the main proceedings satisfy the criteria laid down in paragraphs 88 to 93 of the judgment of the Court of Justice in Altmark. To that end, the referring should, in particular, verify:

–        the existence of a public act that entrusts the PIS providers with the task of supplying those services with some degree of universality and compulsion, and that specifies, in a sufficiently precise manner, at least the nature, duration and scope of the PSOs;

–        the existence of a sufficiently clear and comprehensive body of law that ensures that no overcompensation is paid to the service providers, and to promptly and effectively remedy any possible error in that regard;

–        that PIS providers are selected either on the basis of a sufficiently open and genuine competition, or following a detailed and transparent analysis of the costs that an efficient and cost-effective undertaking active in that sector would have to incur to discharge its obligations.

IV.    Conclusion

98.      In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) that, on a proper construction, Article 107(1) TFEU is to be interpreted as meaning that:

–        funds such as those used to finance the Lithuanian regime for the provision of public interest services in the electricity sector are to be regarded as State resources;

–        where a State measure requires electricity network operators to purchase electricity from electricity producers at a set price and to balance electricity generated by them, providing for the extra costs borne by those operators to be offset with contributions paid by final consumers, the electricity producers are to be regarded as aid beneficiaries for the purposes Article 107(1) TFEU;

–        measures that benefit only undertakings active in a specific sector or providing a specific type of services, by relieving those undertakings from certain costs that they would otherwise have had to bear are, in principle, selective; measures of support to undertakings active in the energy sector are, in principle, liable to affect trade between the Member States and distort competition within the internal market; it is for the referring court to determine whether the measures at issue in the main proceedings satisfy those conditions;

–        it is for the referring court to determine whether the measures at issue in the main proceedings satisfy the criteria laid down in paragraphs 88 to 93 of the judgment of the Court of Justice of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415. To that end, the referring should, in particular, verify:

–        the existence of a public act that entrusts the providers of public interest services with the task of supplying those services with some degree of universality and compulsion, and that specifies, in a sufficiently precise manner, at least the nature, duration and scope of the public service obligations to be discharged;

–        the existence of a sufficiently clear and comprehensive body of law that permits to avoid that any overcompensation is paid to the service providers, and to promptly and effectively remedy any possible error in that regard;

–        that providers of public interest service are selected either on the basis of a sufficiently open and genuine competition or following a detailed and transparent analysis of the costs that an efficient and cost-effective undertaking active in that sector would have to incur to discharge its public service obligations.

1      Original language: English.

2      C‑280/00, EU:C:2003:415.

3      To that effect, see Opinion of Advocate General Jääskinen in Vent De Colère and Others, C‑262/12, EU:C:2013:469, point 24 and the case-law cited.

4      See, to that effect, judgments of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 39; and of 11 November 2015, Klausner Holz Niedersachsen, C‑505/14, EU:C:2015:742, paragraph 22.

5      See judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40 and the case-law cited.

6      See judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 74 and the case-law cited.

7      See judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 21 and the case-law cited.

8      Judgment of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160.

9      Judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671.

10      Judgment of 15 July 2004, Pearle and Others, C‑345/02, EU:C:2004:448.

11      Judgment of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348.

12      Cf. Opinion of Advocate General Wathelet in Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:58, point 66.

13      See, respectively, judgments of 15 July 2004, Pearle and Others, C‑345/02, EU:C:2004:448, paragraph 37; and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 31.

14      See, to that effect, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 69 and 70. See also Opinion of Advocate General Mengozzi in Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:33, point 109.

15      Judgment of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 32.

16      Cf. Opinion of Advocate General Jääskinen in Vent De Colère and Others, C‑262/12, EU:C:2013:469, point 44.

17      Judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851.

18      Ibid., paragraphs 22, 23, and 28 to 33.

19      Judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413.

20      Respectively, judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160; and of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671.

21      Respectively, judgments of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851.

22      Cf. Opinion of Advocate General Mengozzi in Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:33, points 108 and 109.

23      See, to that effect, Opinion of Advocate General Wathelet in Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:58, points 97 to 105.

24      See, to that effect, judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraphs 28 et seq.

25      Cf. Opinion of Advocate General Saugmandsgaard Øe in ENEA, C‑329/15, EU:C:2017:233, points 75, 83 and 84.

26      See, to that effect, judgment of 8 November 2001 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraph 41. See also judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 54, and of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 75.

27      See, to that effect, judgments of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 18; of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 23; and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraphs 56 and 59.

28      See, to that effect, judgments of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraphs 29 to 32 and the case-law cited, and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraphs 66 to 68 and the case-law cited.

29      See judgment of 25 July 2018, Commission v Spain and Others, C‑128/16 P, EU:C:2018:591, paragraph 84 and the case-law cited.

30      Judgment of 27 September 1988, Asteris and Others, 106/87 to 120/87, EU:C:1988:457, paragraph 24.

31      See, to that effect, judgment of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 13.

32      See, e.g., Hancher, L., Ottervanger, T., Slot, P.J., EU State aids, 4^th ed., Sweet & Maxwell, 2012, p. 91.

33      See, for example, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 68 and the case-law cited; and of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 78 and the case-law cited. See also Opinion of Advocate General Tizzano in Joined Cases P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:91, points 86 to 88.

34      Cf. Quigley, C., European State Aid Law and Policy, 3^rd ed., 2015, Hart, p. 75.

35      Judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraphs 34 to 38.

36      Judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraphs 33 to 35.

37      Paragraphs 89 to 93 of the judgment. Those conditions are as follows: first, the undertaking receiving compensation must actually have PSOs to discharge, and those obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings. Third, the compensation paid cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of PSOs, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Fourth, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.

38      See, with further references, my Opinion in Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2016:854, point 29.

39      Judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 35.

40      See, to that effect, judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraphs 69 and 70 and the case-law cited.

41      Emphasis added.

42      Opinion of Advocate General Wathelet in Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, C‑70/16 P and C‑81/16 P, EU:C:2017:654, point 48.

43      See, to that effect, judgments of 10 December 1991, Merci convenzionali Porto di Genova, C‑179/90, EU:C:1991:464, paragraph 27; of 17 July 1997, GT-Link, C‑242/95, EU:C:1997:376, paragraph 53; and of 18 June 1998, Corsica Ferries France, C‑266/96, EU:C:1998:306, paragraph 45.

44      See, to that effect, Opinion of Advocate General Sharpston in Farrell, C‑413/15, EU:C:2017:492, point 90, and judgment of 16 September 2013, Colt Télécommunications France v Commission, T‑79/10, EU:T:2013:463, paragraph 154.

45      See, to that effect, judgments of 7 November 2018, Commission v Hungary, C‑171/17, EU:C:2018:881, paragraphs 56 and 57, and of 1 March 2017, SNCM v Commission, T‑454/13, EU:T:2017:134, paragraphs 133, 134, 172, and 173.

46      Directive of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).

47      See Opinion of Advocate General Szpunar in Hiebler, C‑293/14, EU:C:2015:472, point 61, and judgment of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 172.

48      See Opinion of Advocate General Ruiz-Jarabo Colomer in Federutility and Others, C‑265/08, EU:C:2009:640, points 54 and 55.

49      Assisted, where necessary, by the Court of Justice seised under Article 267 TFEU.

50      In case of an action for annulment of a Commission decision taking a position on that issue.

51      Judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 70 and the case-law cited.

52      Ibidem, point 100, confirming the analysis of the General Court.

53      See, to that effect, judgment of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraph 66.

54      Cf. Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest (OJ 2012 C 8, p. 4), point 52.

55      Judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 73.

56      See, to that effect, Opinion of Advocate General Wathelet in Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, C‑70/16 P and C‑81/16 P, EU:C:2017:654, point 112.

57      See Opinion of Advocate General Szpunar in Renerga, C‑238/17, EU:C:2018:571, points 28 to 34.

58      As regards the importance of the compulsory nature of a SGEI, see generally de Hautecloque, A., Salerno, F.M., Suciu, S., ‘Services of General Economic Interest’, in Hancher, L., de Hautecloque, A., Salerno, F. M. (eds), State Aid and the Energy Sector, Hart, 2018, p. 275 to 277.

59      See, to that effect, judgment of 14 November 2018, Renerga, C‑238/17, EU:C:2018:905, paragraphs 19 to 29.

60      See, to that effect, judgment of 1 March 2017, SNCM v Commission, T‑454/13, EU:T:2017:134, paragraph 241.

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