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

JUDGMENT OF THE COURT (Seventh Chamber)

17 November 2022 (*)

Table of contents

Legal context

Background to the dispute

The procedure before the General Court and the judgment under appeal

Forms of order sought and procedure before the Court

The appeal

The first ground

Arguments of the parties

– The first part

– The second part

– The third part

– The fourth part

– The fifth part

– The sixth part

Findings of the Court

– Preliminary observations

– The first part

– The second part

– The third part

– The fourth part

– The fifth part

– The sixth part

The second ground

Arguments of the parties

Findings of the Court

Costs

(Appeal – State aid – Article 107(1) TFEU – Article 108(2) and (3) TFEU – Regulation (EU) 2015/1589 – Article 4 – Member State legislation on business property taxation – Methods for valuation of property used to calculate the basis of assessment of the rate payable – Complaint from wind farm operators – Allegation of an under-assessment of the basis of assessment for the business rate payable by fossil fuel electricity producers and, consequently, of a level of business rate of those electricity generators lower than that of other electricity producers due to the choice of valuation method used – Preliminary examination procedure – Decision finding that there is no State aid – No economic and selective advantage – Failure to initiate the formal investigation procedure – Concept of ‘serious difficulties’ – Extent of the European Commission’s investigative duty – Principle of sound administration – Obligation to conduct the investigation procedure diligently and impartially – Scope of review by the General Court of the European Union)

In Case C‑578/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 September 2021,

Irish Wind Farmers’ Association Clg, established in Kilkenny (Ireland),

Carrons Windfarm Ltd, established in Shanagolden (Ireland),

Foyle Windfarm Ltd, established in Dublin (Ireland),

Greenoge Windfarm Ltd, established in Bunclody (Ireland),

represented by M. Segura Catalán, abogada, and M. Clayton, avocate,

appellants,

the other party to the proceedings being:

European Commission, represented by I. Georgiopoulos, S. Noë and K. Herrmann, acting as Agents,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of A. Prechal (Rapporteur), President of the Second Chamber, acting as President of the Seventh Chamber, F. Biltgen and J. Passer, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By their appeal, Irish Wind Farmers’ Association Clg (‘the IWFA’), Carrons Windfarm Ltd, Foyle Windfarm Ltd and Greenoge Windfarm Ltd seek to have set aside the judgment of the General Court of the European Union of 7 July 2021, Irish Wind Farmers’ Association and Others v Commission (T‑680/19, not published, EU:T:2021:412; ‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission Decision C(2019) 5257 final of 9 July 2019 concerning State aid SA.44671 (2019/NN) – Ireland (‘the decision at issue’), from which fossil fuel electricity producers benefitted in the form of a business rate lower than that of other electricity producers.

 Legal context

2        Article 4 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), entitled ‘Preliminary examination of the notification and decisions of the Commission’, provides, in paragraphs 1 to 4 thereof:

‘1.      The Commission shall examine the notification as soon as it is received. Without prejudice to Article 10, the Commission shall take a decision pursuant to paragraphs 2, 3 or 4 of this Article.

2.      Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision.

3.      Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the internal market of a notified measure, in so far as it falls within the scope of Article 107(1) TFEU, it shall decide that the measure is compatible with the internal market (“decision not to raise objections”). The decision shall specify which exception under the [FEU Treaty] has been applied.

4.      Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the internal market of a notified measure, it shall decide to initiate proceedings pursuant to Article 108(2) TFEU (“decision to initiate the formal investigation procedure”).’

 Background to the dispute

3        The background to the dispute, set out in paragraphs 1 to 22 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

4        The business rate is a tax levied annually on non-domestic and business properties in Ireland. Its aim is to contribute towards the costs of services provided by local authorities. The amount of that rate is calculated on the basis of the net annual value (‘the NAV’) of property used for commercial purposes, to which a rate, generally determined by local authorities at county level, is applied. The NAV of property essentially means the annual amount of the rent which can reasonably be expected from letting that property.

5        The Valuation Act 2001 (‘the 2001 Act’) provided for the revaluation of the NAV – formerly known as the ‘RV value’ – of all properties in Ireland as from 2005 by the Valuation Office (Ireland) (‘the VOI’) with a view to determining the amount of the business rates payable in respect of real property.

6        It is apparent from the 2001 Act that the VOI has three methods for determining the NAV of property, namely the so-called ‘rental method’ method, the so-called ‘tone of the list method’ and that known as the ‘contractor’s method’. A fourth method has been developed in the case-law on the application of that act, namely the method known as the ‘receipts and expenditure method’, which applies to properties that are seldom let or are difficult to replicate.

7        On 4 February 2016, the IWFA lodged with the Commission a complaint in which it argued that, as a result of the choice of valuation method used by the VOI for the purposes of determining the NAV when calculating business rates in Ireland, and the manner in which that method was applied, fossil fuel electricity generation facilities, to which the ‘contractor’s method’ was applied, were treated more favourably than wind farms, to which the ‘receipts and expenditure method’ was applied (‘the contested measure’).

8        That choice and the broad discretion enjoyed by the VOI in applying one or other of those methods had led to an under-assessment of the NAV of those facilities and, therefore, to a reduction in the amount of business rates payable by them. The IWFA argued that the existence of that tax advantage was illustrated by the fact that operators of the said facilities had paid, in 2015, a business rate approximately three times less than that paid by other electricity producers, such as wind farms.

9        In the course of the administrative procedure, the Irish authorities argued that the contested measure did not constitute State aid within the meaning of Article 107(1) TFEU and provided information to the Commission in response to two requests for information which the Commission had sent to them.

10      In the light of the complaint lodged by the IWFA and the additional information it had been sent by the latter and by those authorities during that procedure, the Commission expressed, on three occasions, its provisional position that, in the absence of a selective advantage, the contested measure could not be regarded as constituting ‘State aid’ within the meaning of Article 107(1) TFEU.

11      On 9 July 2019, the Commission adopted the decision at issue, by which it considered that the contested measure did not entail any economic advantage or a selective advantage and, therefore, did not constitute ‘State aid’ within the meaning of Article 107(1) TFEU.

12      In particular, the Commission considered, first, that it had not been established that the contested measure had conferred an advantage on operators of fossil fuel electricity generation facilities and, second, that, even assuming that an advantage had been derived for those operators from the choice of the valuation method used, that advantage was not selective in nature but was explained by the availability or lack of detailed and reliable financial information needed to apply a particular valuation method.

 The procedure before the General Court and the judgment under appeal

13      By application lodged at the Registry of the General Court on 30 September 2019, the appellants brought an action for annulment of the decision at issue.

14      In support of their action, the appellants raised a single plea in law, alleging infringement of Article 108(2) TFEU and Article 4(4) of Regulation 2015/1589 and, therefore, violation of their procedural rights, on the ground that, in the case at hand, the Commission was obliged to initiate the formal investigation procedure if it was faced with serious difficulties.

15      That single plea was divided into five parts. By the first part, the appellants claimed that the contested measure had not been correctly identified in the decision at issue. By the second part, they maintained that the Commission ought to have had doubts following the preliminary examination phase. By the third part, they claimed that the Commission had failed to understand certain fundamental elements of the complaint lodged. By the fourth part, they alleged that the Commission had not adequately examined all the information provided by the IWFA in the context of that complaint. Last, by the fifth part, they criticised the duration of the preliminary examination phase.

16      By the judgment under appeal, the General Court rejected each of those five parts of the single plea and, consequently, dismissed the action in its entirety and ordered the appellants to pay the costs.

 Forms of order sought and procedure before the Court

17      The appellants claim that the Court should:

–        set aside the judgment under appeal;

–        annul the decision at issue, and

–        order the Commission to pay the costs.

18      The Commission contends that the Court should:

–        dismiss the appeal, and

–        order the appellants to pay the costs.

 The appeal

19      In support of their appeal, the appellants raise two grounds of appeal, the first alleging infringement of Article 108(2) and (3) TFEU and of Article 4(2) and (4) of Regulation 2015/1589 in that, in the judgment under appeal, the General Court found that there were no serious difficulties requiring the Commission to initiate the formal investigation procedure, and the second alleging that the General Court distorted the evidence submitted before it.

 The first ground

 Arguments of the parties

20      By the first ground of appeal, which is divided into six parts, the appellants submit that the General Court misinterpreted Article 108(2) and (3) TFEU and Article 4(2) and (4) of Regulation 2015/1589 in finding that the preliminary examination had not shown that serious difficulties existed regarding both the categorisation of the contested measure as State aid and its compatibility with the internal market and that, therefore, the Commission was not required to initiate the formal investigation procedure.

–       The first part

21      First, the appellants submit that, in disregard of the case-law according to which the Commission is required to conduct a diligent and impartial examination of the complaints which it receives, the General Court adopted, in paragraph 99 of the judgment under appeal, a faulty reasoning which not only contravenes the Irish valuation legislation but also demonstrates that neither the Commission nor the General Court examined certain information, including that provided by the complainant and demonstrating significant but unexplained changes in the business rate levels paid by the energy producers that used different technologies before and after the revaluation mandated by the 2001 Act.

22      Second, the appellants complain that the General Court held, in paragraphs 107 to 109 of the judgment under appeal, that the Commission’s ‘silence’ in relation to a table provided by the IWFA evidencing changes before and after that revaluation could not constitute evidence of the existence of serious difficulties. Thus, the General Court adopted an erroneous interpretation of the Commission’s investigative duties since, according to such an interpretation, the examination of the evidence submitted to be conducted by that institution would depend on the manner in which the complaints are drafted.

23      Third, the appellants criticise the General Court for having held, in paragraph 82 of the judgment under appeal, that the mere fact that the Commission did not insist that the Irish authorities provide it with more precise answers to the questions asked in the context of the second request for information is not, in itself, such as to indicate the existence of serious difficulties which should have led it to send a third request for information. Thus, the General Court erred in law as to the extent of the investigative duty imposed on the Commission by the State aid rules and followed an interpretation contrary to the applicable provisions of Regulation 2015/1589.

–       The second part

24      The appellants submit that it is clear from paragraphs 108 and 112 of the judgment under appeal that the General Court erred in law by establishing a differentiated treatment of the procedural consequences of the failure to provide the information requested depending on whether that failure came from the Member State concerned or from the complainant.

25      In accordance with the Manual of Procedures and the Code of Best Practices for the conduct of State aid control procedures (OJ 2018 C 253, p. 14), the failure to answer part of the questions put to the Irish authorities in the context of the second request for information ought to have led the Commission, after having sent two requests for information, to open a formal investigation procedure. By accepting that that institution was not required to send a third request for information in order to obtain the missing information from those authorities, however, the General Court endorsed a violation of the procedural rules concerned.

26      Thus, the General Court accorded the said authorities a treatment very different from that accorded to the complainant, requiring it as a minimum standard to provide all the necessary information, despite the fact that, as a private party, the complainant does not have the same access to certain types of information as public authorities, and to elaborate expressly on that information.

–       The third part

27      As regards the General Court’s examination of the appellants’ complaint that the duration of the preliminary examination phase was excessive and is an indication of the existence of serious difficulties, the appellants take issue with the General Court for having first assessed that complaint in the judgment under appeal, whereas it was last relied on as the fifth part of the single plea of the application as coming in addition to the material evidence provided, which enabled the General Court to conclude, in paragraph 61 of the judgment under appeal, that that excessive duration was due mainly to the intensity of the exchanges between the IWFA and the Commission and thus to create the necessary set-up for its assessment that there were no such difficulties in the present case.

28      Regarding the duration of the investigation, the appellants complain that the General Court, in paragraph 59 of the judgment under appeal, attached importance to the complainant’s request for a suspension of the procedure, but disregarded an internal Commission delay of almost six months, which is, however, noted in paragraph 11 of that judgment.

29      Moreover, by taking into account that request for a suspension of the procedure and reprimanding the appellants for it, the General Court was not consistent with its own case-law (judgment of 15 October 2018, Vereniging Gelijkberechtiging Grondbezitters and Others v Commission, T‑79/16, not published, EU:T:2018:680, paragraph 104).

30      As regards the intensity of the exchanges between the Commission and the complainant explaining, according to the General Court in paragraph 61 of the judgment under appeal, the excessive duration of the investigation, the appellants consider that multiple exchanges of that kind are inevitable and are part of the procedure concerned, the complainants being, according to recital 32 of Regulation 2015/1589, ‘an essential source of information for detecting infringements of the Union rules on State aid’.

31      It is almost impossible to determine the number of exchanges that must be regarded as extending artificially the duration of the procedure. Taking into account, in the assessment of the existence of serious difficulties, the intensity of the exchanges between the Commission and the complainant could lead to a standard of proof impossible to achieve being imposed on the complainant, on whom the burden of proving the existence of such difficulties lies.

32      The appellants note that, whereas, in paragraph 53 of the judgment under appeal, the General Court referred to paragraphs 71 and 72 of the Code of Best Practices for the conduct of State aid control procedures, from which it is apparent that ‘the Commission services endeavour to investigate a formal complaint within a non-binding time limit of 12 months from when they are registered’, it considered, in paragraph 59 of that judgment, that the period of more than three years which elapsed between the lodging of the IWFA’s complaint and the adoption of the decision at issue did not show, as such, the existence of doubts capable of justifying the initiation of the formal investigation procedure.

33      Last, the appellants take issue with the General Court for having held, in paragraph 62 of the judgment under appeal, that, in any event, a period which exceeds what is normally required in order to examine the preliminary phase cannot in itself constitute strong evidence of the existence of serious difficulties unless that evidence is supported by other factors. It is not the duration of the preliminary examination phase in itself that matters, but the addition of several indicators that reveal the existence of serious difficulties. The General Court therefore erred in law by assessing in isolation, and then dismissing, the evidence of the existence of serious difficulties arising from the duration of the preliminary examination phase of more than three years.

–       The fourth part

34      The appellants claim that the General Court erred in law in concluding, in paragraph 124 of the judgment under appeal, that they had provided no evidence capable of demonstrating the existence of serious difficulties such as to place the Commission under the obligation to initiate the formal investigation procedure provided for in Article 108(2) TFEU.

35      The appellants consider that, in so ruling, the General Court imposed an unreasonably high burden of proof on them.

36      In that regard, the appellants refer to the table provided by the IWFA to the Commission containing data on the significant and unexplained changes in the business rate levels according to the technologies used (fossil fuel or wind energy), before and after the revaluation carried out following the entry into force of the 2001 Act.

37      The appellants recall that they argued before the General Court that the fact that those data show that, prior to that revaluation, all types of energy producers paid a comparable level of business rates, whereas, after revaluation, the levels changed significantly, such that, inter alia operators of fossil fuel electricity generation facilities now pay a business rate approximately three times lower than that paid by other electricity producers, and that this should have led the Commission to investigate the matter further.

38      The appellants submit that, in paragraph 107 of the judgment under appeal, the General Court could not therefore dismiss such an argument on the ground that such a comparison between the situation prior to and after that revaluation ‘[had] never expressly [been] relied on by the IWFA during the administrative procedure and consequently had never been the subject of debate with the Commission’.

39      It is after all for the Commission to review and examine the pieces of information provided in the file, whether they come from the national authorities or from a complainant, to the extent that they contain information and evidence relevant to the State aid assessment concerned and that, accordingly, failure to carry out that analysis constitutes de facto evidence of the existence of serious doubts (see, to that effect, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 51).

40      According to the appellants, a complainant cannot be required to carry out a preliminary analysis of the exact issues of State aid law that the information contains.

41      On the contrary, according to the case-law of the Court, the Commission is required to conduct a diligent and impartial examination of the measures at issue, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (judgment of 29 April 2021, Achemos Grupė and Achema v Commission, C‑847/19 P, not published, EU:C:2021:343, paragraph 43).

–       The fifth part

42      The appellants take issue with the General Court for having rejected, in paragraph 102 of the judgment under appeal, their argument that the similarity between the Irish system and the United Kingdom system was evidence of the existence of serious difficulties justifying the initiation of the formal investigation procedure, on the ground that, regardless of the situation in the United Kingdom, it has no influence on the functioning of the Irish tax system.

43      It is apparent from the case-law of the EU Courts that, for the purposes of assessing whether serious difficulties justifying the initiation of a formal investigation procedure exist, those courts take account of Commission decisions taken following such a procedure in cases concerning measures linked to the measure at issue.

44      In the present case, the appellants relied, during the procedure, on Commission Decision 2006/951/EC of 12 October 2006 the United Kingdom’s application of the tax on non-domestic property to telecommunications infrastructure in the United Kingdom (No C 4/2005 (ex NN 57/2004, ex CP 26/2004)) (OJ 2006 L 383, p. 70).

45      That decision is, in their view, important and relevant to the case at hand since it shows the methodology followed by the Commission when it had to assess the valuation of property. Furthermore, the valuation system in Ireland was established while that country was still ‘under [the] rule’ of the United Kingdom of Great Britain and Northern Ireland. Last, in the case which gave rise to that decision, the Commission chose to open the formal investigation procedure after seven exchanges and one meeting with the complainant.

–       The sixth part

46      The appellants recall, first, that, in paragraph 76 of the judgment under appeal, the General Court accepted that the questions that arose from the method for assessing the NAV of fossil fuel electricity generation facilities as to the selective advantage which it allegedly conferred were of a technical nature and, second, that it is settled case-law that the EU Courts must carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU after taking into account the technical or complex nature of the Commission’s assessments.

47      Consequently, the appellants submit that the General Court could not acknowledge the technical complexity of those questions while at the same time concluding, in paragraph 124 of the judgment under appeal, that they had not provided further evidence of serious difficulties. On the contrary, the General Court should have concluded that that technical complexity constituted evidence of the existence of such difficulties justifying the opening of a formal investigation procedure.

48      The Commission refutes the various complaints raised by the appellants under the six parts of the first ground of appeal as being in part inadmissible and in part unfounded.

 Findings of the Court

–       Preliminary observations

49      In the first place, it must be pointed out that, in paragraph 124 of the judgment under appeal, the General Court concluded that none of the alleged items of evidence put forward by the appellants, taken in isolation or with others, was such as to establish that the Commission had been faced with serious difficulties in its assessment of the contested measure and that it was therefore required to initiate the formal investigation procedure provided for in Article 108(2) TFEU. Moreover, in its view, in relation to the duration of the preliminary examination phase, none of those alleged items of evidence was capable of substantiating the existence of such difficulties, either. The General Court concluded, in paragraph 125 of that judgment, that it had to be held that the appellants had not demonstrated the existence of doubts such as to justify the initiation of the formal investigation procedure, with the result that the single plea in law had to be rejected and, consequently, the action dismissed.

50      The appellants cannot therefore criticise the judgment under appeal on the ground that the General Court assessed the said alleged items of evidence in isolation as evidence of the existence of serious difficulties without having examined their cumulative effect and the links between them.

51      In any event, the appellants in no way explain how the cumulative effect and the links between the same alleged items of evidence could have demonstrated the existence of serious difficulties, whereas the General Court, in following the structure of the application, found that none of them – taken in isolation or with others – was such as to reveal that the Commission had been faced with such difficulties.

52      In the second place, since the assessment of the first ground of appeal must be carried out in the light of the obligations which, according to the settled case-law of the Court, are binding on the Commission in the context of the preliminary examination procedure under Article 108(3) TFEU, it is appropriate to recall that case-law.

53      The procedure under Article 108(2) TFEU is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the internal market. The Commission may therefore confine itself to the preliminary examination under Article 108(3) TFEU when taking a decision in favour of aid only if it is able to satisfy itself after the preliminary examination that that aid is compatible with the internal market. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether that aid is compatible with the internal market, the Commission is under a duty to obtain all the requisite opinions and for that purpose to initiate the procedure provided for in Article 108(2) TFEU (judgment of 6 October 2021, Scandlines Danmark and Scandlines Deutschland v Commission, C‑174/19 P and C‑175/19 P, EU:C:2021:801, paragraph 65 and the case-law cited).

54      As the concept of ‘serious difficulties’ is objective in nature, proof of the existence of such difficulties, which must be looked for both in the circumstances in which the decision was adopted after the preliminary investigation and in its content, must be furnished by the applicant seeking the annulment of that decision, by reference to a body of consistent evidence (see, to that effect, judgments of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 31, and of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 82 and the case-law cited).

55      Accordingly, it is for the EU Courts, when they have before them an application for annulment of such a decision, to determine whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary investigation phase of the national measure at issue should objectively have raised doubts as to the categorisation of that measure as aid, given that such doubts must lead to the initiation of a formal investigation procedure (see, to that effect, judgment of 6 October 2021, Scandlines Danmark and Scandlines Deutschland v Commission, C‑174/19 P and C‑175/19 P, EU:C:2021:801, paragraph 67 and the case-law cited).

56      In addition, the lawfulness of a decision at the end of the preliminary examination procedure such as that referred to in Article 4(2) of Regulation 2015/1589 falls to be assessed by the EU Courts, in the light not only of the information available to the Commission at the time when the decision was adopted, but also of the information which ‘could have been available’ to the Commission, which includes information which seemed relevant and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraphs 42 and 43 and the case-law cited).

57      The Commission is required to conduct a diligent and impartial examination of the measures at issue, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 44 and the case-law cited).

58      That being so, although it may be necessary, when the existence and legality of State aid is being examined, for the Commission to go beyond a mere examination of the facts and points of law brought to its notice, it is not however for it, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (see, to that effect, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45 and the case-law cited).

59      Thus, the mere existence of a potentially relevant piece of information of which the Commission was not aware and which it was not required to investigate, in the light of the pieces of information that were actually in its possession, cannot demonstrate that there were serious difficulties obliging the Commission to initiate the formal investigation procedure (judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 51).

60      Last, it must be borne in mind that, while the principles affirmed in the case-law cited in paragraphs 53 to 59 of the present judgment have been developed in relation to decisions not to raise objections as referred to in Article 4(3) of Regulation 2015/1589, they also apply to decisions, such as the decision at issue, finding that the measure ‘does not constitute aid’, which are referred to in Article 4(2) of that regulation (see, to that effect, judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 33).

–       The first part

61      So far as concerns, first, the appellants’ complaint directed against paragraph 99 of the judgment under appeal, it must be rejected. On the one hand, that complaint is inadmissible since it seeks to call into question an assessment of national law and of the facts, carried out by the General Court, without alleging any distortion in that regard. On the other hand, the said complaint is, in any event, unfounded since the alleged infringement of national law is not substantiated and since, in paragraphs 106 to 108 of the judgment under appeal, the information provided by the complainant was indeed examined by the General Court, the argument relating thereto having been rejected.

62      Second, regarding the appellants’ complaint that the General Court erred in law in holding, in paragraphs 107 to 109 of the judgment under appeal, that the Commission’s ‘silence’ in relation to a table provided by the IWFA evidencing changes before and after the revaluation effected by the 2001 Act could not constitute evidence of the existence of serious difficulties, it cannot succeed, either.

63      It must be stated that, by that complaint, the appellants criticise those paragraphs in a general manner without, however, calling into question the reasoning followed therein. In particular, it is common ground that the appellants never complained, during the administrative procedure, of the existence of a difference, before and after the revaluation carried out in 2001, in the business rate levels paid by energy producers using different technologies which would have been indicative of the existence of State aid. Nor do they argue, in the appeal, that, as the General Court indicated, a comparison between the RV values and the NAVs was in any event irrelevant, since the values used in the old system were obsolete and no longer reflected reality and the reference criteria that are now used to determine those bases of calculation are different.

64      Third, as regards the appellants’ complaint directed against paragraph 82 of the judgment under appeal, it must be stated that this complaint is inadmissible in so far as it relates solely to the General Court’s assessment of the facts, without alleging any error in the legal characterisation of the evidence or any distortion thereof.

65      The said complaint is, in any event, unfounded since it relates only to the conclusion drawn in paragraph 82 of the judgment under appeal, without, however, calling into question the reasoning followed by the General Court in paragraphs 78 to 81 thereof in reaching that conclusion.

66      In those paragraphs, the General Court recalled the information already in the Commission’s possession, in particular a table provided by the Irish authorities and the reply given by those authorities to certain questions asked in the context of the first request for information. Consequently, according to the General Court, the Commission was able to consider that, since that information provided sufficient information on certain questions asked in the context of the second request for information, it was not necessary to ask those authorities for even more precise answers to those questions.

67      It follows that the General Court was entitled not to find fault with the Commission for having disregarded the obligations which, according to the settled case-law of the Court of Justice, are binding on it in the context of the preliminary examination procedure under Article 108(3) TFEU, as are recalled in paragraphs 53 to 60 of the present judgment, and, in particular, the obligation to examine diligently and impartially the measures at issue, which means that, although that institution may be required to request the production, in the course of the administrative procedure, of information which seems relevant, it is not for it, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it.

–       The second part

68      In the second part of the first ground of appeal, the appellants submit that it is apparent from paragraphs 108 and 112 of the judgment under appeal that the General Court erred in law by establishing a differentiated treatment of the procedural consequences of the failure to provide the information requested depending on whether that failure came from the Member State concerned or from the complainant.

69      Such a complaint must be rejected.

70      The said complaint is inadmissible in so far as it essentially constitutes a repetition of the complaint raised in the context of the first part of the first ground of appeal, which consists in contesting an assessment of the facts.

71      In any event, the same complaint is unfounded, since paragraphs 108 and 112 of the judgment under appeal relate to situations which are not comparable, namely, the first, a line of argument which has never been put forward by the complainant and, the second, the national authorities’ reply to a request for information.

–       The third part

72      First, the line of argument developed by the appellants is inadmissible in so far as it seeks to call into question the factual assessment made by the General Court of the duration of the preliminary examination procedure as an indication of the existence of serious difficulties without, however, alleging a distortion of the evidence submitted in that regard.

73      Second, as regards the fact that the General Court examined that duration in the first place, the appellants have not shown how it had any bearing on the substance of the conclusions reached in the judgment under appeal and constitutes an error of law vitiating that judgment.

74      Third, in respect of the argument based on the difference in treatment by the General Court, in its analysis of the duration of the preliminary examination procedure, between the complainant’s request for a suspension of the procedure and the Commission’s internal transmission delay of almost six months, which the appellants argue is incompatible with the General Court’s own case-law, it must be held that that argument is based on a misreading of the judgment under appeal.

75      It follows from paragraph 11 of the judgment under appeal that the General Court did not disregard that transmission delay. In any event, the said transmission delay cannot call into question the conclusion reached by the General Court in paragraph 59 of the judgment under appeal, according to which the duration of the preliminary examination procedure could in part be explained by the request for suspension made by the complainant.

76      Fourth, as for the appellants’ argument that the intensity of the exchanges between the Commission and the complainant cannot rule out the existence of serious difficulties, it is based on a misreading of paragraphs 59 to 61 of the judgment under appeal.

77      In those paragraphs, the General Court correctly applied the settled case-law of the Court of Justice according to which, while the length of the preliminary examination procedure can constitute an indication that the Commission may have had doubts regarding the compatibility of the aid in question with the internal market, its length cannot of itself lead to the conclusion that that institution should have initiated the formal investigation procedure (judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 32).

78      In the light of that case-law, the General Court was thus able to hold, without erring in law, in essence, that the intensity of the exchanges between the Commission and the complainant explained, to a certain extent, the duration of the preliminary examination, but that the content of those exchanges did not attest to the existence of serious difficulties.

79      Since what is at issue is an essentially factual assessment, it cannot be criticised at the appeal stage, the appellants moreover not having pleaded any distortion by the General Court in that regard.

80      Fifth, the appellants cannot criticise paragraph 62 of the judgment under appeal, since that paragraph reflects the case-law of the Court of Justice according to which it is only if it is reinforced by other factors that the passage of time, even if that time considerably exceeds the time usually required for a preliminary examination under Article 107(3) TFEU, may lead to the conclusion that the Commission encountered serious difficulties (judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 35).

–       The fourth part

81      With regard to the line of argument developed by the appellants in the fourth part of the first ground of appeal, concerning the unreasonably high burden of proof imposed on them by the General Court to establish the existence of serious difficulties, it must be held that, in spite of its general wording, it relates only to the assessment made by the General Court, in paragraphs 107 and 108 of the judgment under appeal, of the complaint alleging a failure by the Commission to examine the evidence provided by the complainant, concerning the changes, before and after the revaluation effected by the 2001 Act, in the business rate levels paid by energy producers using different technologies.

82      As the reference, made in the first part of the first ground of appeal, to the Commission’s obligation to conduct the procedure for examining the measures at issue diligently and impartially demonstrates, that line of argument has no autonomous scope.

83      Accordingly, for the same reasons as those set out in the examination of this first part, that line of argument must be rejected as inadmissible and, in any event, as unfounded.

–       The fifth part

84      It must be stated, first of all, that the line of argument developed in the fifth part of the first ground of appeal, in so far as it concerns the relevance of the alleged proximity of the valuation system in force in the United Kingdom to the Irish system, in that it relates to the assessment of the facts made by the General Court in paragraph 102 of the contested judgment, is inadmissible, the appellants not having alleged any distortion of those facts.

85      Next, it should be noted that the appellants do not dispute the conclusion, drawn in the last sentence of that paragraph 102, that, regardless of the situation in the United Kingdom, it has no influence on the functioning of the Irish tax system.

86      Finally and in any event, the appellants cannot rely on the Commission’s earlier decision-making practice to allege the existence of serious difficulties since, according to the case-law of the Court, the question whether a particular measure constitutes State aid must be assessed solely in the context of the application of Article 107(1) TFEU and not in the light of an alleged earlier decision-making practice of the Commission (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 114 and the case-law cited).

–       The sixth part

87      Last, the line of argument developed by the appellants in the sixth part of the first ground of appeal, according to which the General Court, after having noted, in paragraph 76 of the judgment under appeal, the technical complexity of the questions raised by the method for assessing the NAV of fossil fuel electricity generation facilities as regards the selective advantage which it allegedly conferred, should have concluded that that technical complexity constituted evidence of the existence of serious difficulties justifying the initiation of a formal investigation procedure, cannot be accepted, either.

88      Although the complexity of an aid measure is one of the circumstances specific to a case which are capable of justifying a long duration of the preliminary examination phase, such complexity does not mean that the Commission must, in any event, initiate the formal investigation procedure, as that institution may discuss technical issues with the Member States during the preliminary procedure in order to overcome any difficulties encountered (judgments of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraphs 35 and 37, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 62).

89      Furthermore, the appellants have not shown that it was impossible for the Commission to overcome, particularly by means of the information obtained from the Irish authorities, any technical difficulties which it might have encountered during the preliminary examination procedure.

90      In the light of the foregoing, the first ground of appeal must be rejected.

 The second ground

 Arguments of the parties

91      The appellants submit that, particularly in the context of the examination of their line of argument based on the misunderstanding by the Commission of certain fundamental elements of the complaint lodged, the General Court distorted key items of evidence, a distortion which led to the delivery of the judgment under appeal.

92      In that regard, first, the appellants submit that the General Court distorted the facts by incorrectly identifying the contested measure.

93      Second, the appellants criticise the General Court for having found, in paragraph 101 of the judgment under appeal, first, that the argument based on the ‘stand back and look’ principle was not supported by any evidence and, second and in any event, that no evidence had been produced that that principle should be applied in the context of a comparison between different electricity generation facilities using different technologies.

94      On the one hand, the said principle is a principle applicable to valuation in the Irish system which has been formally acknowledged on many occasions, including in a judgment of the Valuation Tribunal (Ireland) of 6 February 2018.

95      On the other hand, as the appellants have argued, the VOI considered in the mid 1990s that it had to compare the different forms of electricity generation based on their generating capacity in order to assess the valuation of a new form of electricity generation, namely wind electricity. Therefore, a comparison between the different electricity generation facilities using different technologies is necessary in order to assess the valuation of energy producers.

96      Third, the General Court’s misunderstanding of the evidence produced and the distortion of that evidence is revealed also by the reference made in paragraph 104 of the judgment under appeal to the NAV per megawatt as a metric.

97      The appellants have never disputed that the business rate is a tax on property, and not a tax on energy production. In the complaint lodged by IWFA, the quantity of megawatts produced annually was used since it is the only metric making it possible to examine the levels of business rates paid by the different operators and to demonstrate that fossil fuel energy producers had benefitted from business rates lower than those applied to those different operators. In response to a question put by the General Court, the appellants produced a judgment of the Valuation Tribunal in which it was explicitly stated that power plants are valued on the basis of the NAV per megawatt for the purposes of calculating the business rate.

98      The last sentence of that paragraph 104 also reveals a total misinterpretation of the explanations provided by the appellants, in that it states that the difference in business rate levels between fossil fuel electricity generation facilities and wind farms does not allow the General Court to draw any useful conclusion, as that difference results from the differences in the NAVs. It is precisely the difference in the NAVs that was the subject of the complaint lodged by the IWFA and then in the action for annulment brought by the appellants.

99      Fourth, according to the appellants, paragraphs 80 and 81 of the judgment under appeal provide a further example of the General Court’s misunderstanding not only of the decision at issue but also of the evidence submitted to it following the adoption of a measure of organisation of procedure.

100    In paragraphs 80 and 81, the General Court referred to the decision at issue in order to endorse the correctness of the information provided by the Irish authorities concerning the valuation of wind turbines. That valuation is useful only as a tool of comparison in order to demonstrate that, while fossil fuel electricity producers pay approximately the same business rates as they did prior to the revaluation carried out in 2001, those rates increased after that revaluation for other electricity producers, such as wind farms. Apart from that purpose, however, that valuation is irrelevant.

101    The Commission disputes each of the complaints raised by the appellants in support of the second ground of appeal and submits that they must be rejected.

 Findings of the Court

102    As a preliminary point, it should be recalled that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, secondly, to assess those facts and the evidence. The appraisal of those facts and the assessment of that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 52 and the case-law cited).

103    Furthermore, where an appellant alleges a distortion of the facts or the evidence by the General Court, he or she must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to such distortion. In addition, it is settled case-law that that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 53 and the case-law cited).

104    That case-law having been recalled, first, it must be held, as regards the distortion allegedly committed by the General Court when identifying the contested measure, that, since the appellants do not indicate precisely the evidence alleged to have been distorted by the General Court, but merely refer, vaguely, to the evidence and explanations provided in the course of the procedure, they have not demonstrated to the requisite legal standard the existence of a distortion which is obvious from the documents in the Court’s file, as is required by the said case-law.

105    Second, so far as concerns the ‘stand back and look’ principle, it must be held that none of the elements relied on by the appellants points to any obvious substantive inaccuracies in the findings of the General Court in paragraph 101 of the judgment under appeal, with the result that no distortion has been demonstrated in that regard.

106    Third, as for the reference made, in paragraph 104 of the judgment under appeal, to the NAV per megawatt as a metric, the appellants do not indicate precisely which evidence was distorted by the General Court in paragraph 104 of the judgment under appeal, but merely refer in a vague manner to the facts and arguments presented before the General Court, with the result that no distortion has been demonstrated in that regard, either.

107    As regards the use of the NAV per megawatt as a metric in the Valuation Tribunal’s judgment of 6 February 2018, the General Court did not distort that judgment in paragraph 104 of the judgment under appeal, but simply dismissed its relevance for the purposes of the present case and its reliability as an indicator of the fairness of the Irish system.

108    The last sentence of paragraph 104 contains a factual assessment by the General Court which, since no distortion has been demonstrated, is not subject to review by the Court of Justice on appeal.

109    Fourth, in respect of paragraphs 80 and 81 of the judgment under appeal concerning the information relating to the valuation of wind turbines by one method or another, provided by the Irish authorities, it must be held that the appellants do not indicate precisely the evidence alleged to have been distorted by the General Court in those paragraphs.

110    The appellants seek, in reality, to challenge the General Court’s assessment of data concerning the comparison, before and after revaluation, of the business rate levels paid by electricity producers using different technologies, but do not demonstrate any manifest distortion of the evidence submitted to the General Court. Such a line of argument is inadmissible at the stage of the appeal.

111    In the light of all the foregoing considerations, the second ground of appeal must be rejected and, accordingly, the appeal must be dismissed in its entirety.

 Costs

112    Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

113    Since the appellants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds, the Court (Seventh Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders Irish Wind Farmers’ Association Clg, Carrons Windfarm Ltd, Foyle Windfarm Ltd and Greenoge Windfarm Ltd to bear their own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 17 November 2022.

Registrar      Acting as President of the Chamber

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.