Um trusted colleague Adrien deot clock from uh the cabinet of the president of the general court and he will actually kick us off today to take us through um the first set of cases on competition related issues in the energy sector then I’ll take over um and I will deal with
State aid and also some recent administrative uh cases and then we’ll turn the screen back to agent and if you have any questions please post them in the chat and we’ll see if we can take them on board as well so off we go thank you Adrian thank you very much Lee good
Afternoon everyone we’ve been doing this Cas for for quite some time it’s always a pleasure uh we have uh um I think quite quite many cases to to discuss and me for now I’ll stick to the two main comp polition cases that we had end of
October I think my my slides you can see them now um here we are so first is EDP it’s a preliminary ruling that will be for appetizer before we go to the big one which is Bulgarian energy holding a massive Judgment of 230 pages and so it
Will take a bit more time so but just to uh sort of warm up let’s have a look at this at this little one it’s it’s a preliminary ruling so as you know in these preliminary rulings the court does not rule on the case but just give indications as to the interpretation of
E to the National court and so there it’s interesting because uh we are looking at um um an association agreement between an electricity supplier EDP and a consumer product retailer in particular food retailer called Modelo continente we are in Portugal and these two undertakings uh deciding to join
Forces uh to cross promote uh and uh this implied uh some sort of Market sharing between them in the sense that um the um um the food retailer committed not to enter electricity Supply and vice verse for a few years so as long as the scheme
Was going on so in in short in in essence the the scheme was a discount scheme for for consumers the consumers had both to take the discount card from Modello continente and um to enjoy the scheme to sign a retail contract with EDP and they got a 10% discount on the
Electricity bill and some diverse discounts from Modello so the Portuguese competition Authority went after them because it thought that it was a restriction of competition uh by object and so that there was an infringement of the national Provisions mirroring article uh 101 tfu and one of the main
Problem is that the the scheme was implemented at the moment where we went out where we were going out of the regulated tariff era in Portugal and so that was really a way in particular for EDP to get a lot of consumers and so there the issue was uh in particular the
Notion of potential competition because really what uh what that what was U really restricted by that uh by that uh agreement if we take into account that Modello continent was not an electricity supplier so because one one of course applies when there’s a um a join conduct that restricts competition and so there
The test which was divis in particular but not only in generics UK and lunbeck was the issue was the idea was to look at if there wouldn’t be an that agreement would would there be any concrete possibility is for Market entry so not just a possibility because
There’s always a possibility in the end or an intent even if you have to take in you can intent take intent into account but where there are some concrete possibilities and there the court and I think very logically said that if you have a non-compete there’s it there
There there’s an indication that there’s potential competition between the two parties to the agreement on top of that mod continente was part of the Sonic Group which was supplying electricity in the past and own a CO generation plan so there were some knowledge in that group even though the court is not getting
Into the issue of is there between the son every all the branches of the Sona group is this a single economic unit under comp under competition law but so was looking at that and say that’s an indication that it’s not impossible at least uh and that there’s more than a
Possibility for Modelo continent to enter into the electricity market and so yes there was potential competition to restrict so that was the first thing then the two undertaking met different different arguments to try to escape the equivalent the Lo the national equivalent of 1011 uh in particular they said that it
Was a vertical course agency uh we should consider their Association agreements at vertical cross agency contracts why is that is because they wanted to rely on the guidelines on vertical restaurants which set up conditions under which you can escape 101 through getting exemption with 1013 tfu in particular they said that there
Were like two agents for each other but the problem is that agents in agency agreements do not take risk they just represent and sign contracts on behalf of the other companies but they take no risk was there in the scheme the whole risk were really shared between the two
Entities and so the cost of implementing the scheme was born not half half I think but they were born by both uh entity I think an argument that had a bit more potential was the argument as to um whether the non-c compet in the scheme would be only onary to the main
Agreement and there the the IDE is that if you can sever the restaurant from the main agreement which is obviously good for consumers then you could get a pass on on on that one um of course there the question is it severable from the main agreement uh or are there any less
Restrictive alternative because of course the the reference must be as limited as possible to be acceptable and this is of course for the national Court to look at it and there was also a question about is it a restriction by object by opposition as to a restriction by effect and there the
Court said that yeah it’s likely that a market exclusion agreements and we have had plenty of them in energy in a liberalization cont context at the end of regulated tariff is probably when it’s signed by a dominant player a restriction by object so that was the
First case I wanted to talk about so the second case is much much bigger and and way more difficult also uh to syze so it’s a case of last October 2023 uh the Alle alleged infringement of article 102 this time so abuses of dominance occurred between 2010 and
2015 there was originally a complaint by over gas which was a Bulgarian gas supplier at the time which was linked to gas prom I think up until 2021 and so there’s a bit of a strange context because if you remember well gas prom at that time was probably abusing
Its dominant position in Inn Europe and we have all that big case where we had uh also several cause cases about the abuses of dominance of gas pron so you have all this context that’s a bit um that’s a bit um that has to be taken into account at least so
Bulgarian energy holding and uh related companies so in particular bulgar gas and bulgar gas is a vertically integrated company which is dominant and I can say like that because it was confirmed by the general CT which is dominant on the gas infrastructure Market which means Upstream on the pipeline between Romania
And Bulgaria and then on the transport uh Network and then on the only one at the time at least G storage facility called shiran and so there the theory of arm was that there was a single and continuous infringement as we say in the sense that the bhn related
Companies all together come coordinated to implement a a host a big host of different tactics tactics at the three level to ensure there was no uh possibility uh for third party to get access one of the peculiarity so you you back I’m not sure I don’t know if I’m sharing my
Screen anymore whatever uh and um one of the peculiarity was that uh bulgar Gaz uh did not own the pipeline facility uh the pipeline facility so the only one p pipeline that imported gas through Ukraine from Russia to Bulgaria was owned and operated by trans gas which was the Romanian TSO however following
An international agreement that was signed a long long time ago and renegotiated in 2005 bulgar against an annual fee which was kind of considered as an investment in the pipeline could get um 100% of the capacity on the um on the pipeline so the commission framed the uh
Refusal to Grant ACC to to to Grant access as a refusal to to deal uh at the three levels and decided for a fine of 77 million euros and what was interesting is that uh the uh General C quashed the decision of the commission almost I think for the
First time at least on substance for an article one or2k so that’s why it’s it’s interesting uh to look at it a bit in more details uh the the general coup found that indeed bulgaras was dominant and that indeed there was a lot of difficulties to access in particular the
Gas Transit Pipeline and you can see from the Judgment that the whole is issue is really the issue of the gas Transit Pipeline and I’ll come back to that in the minute and so the the the the the general court did not did not deny the fact that there were
Difficulties to access the pipeline however there was an issue with attribut attributability in the sense that the difficulties were not attributable to bulgar gas but in essence to transgas and there were also other arguments so now we’ll get a bit more in detail into
The case as for as far as the as the definition of the relevant markets are concerned there’s nothing much to say everything was confirmed um the J just maybe it’s interesting to to see that the the the general court confirmed that probably in that case the primary and the secondary
Capacity markets and the transit part on the transit pipeline were was were one and the same relevant Market even though it wouldn’t change much as to the appreciation of the dominant position still there are there are some interesting development there as for the dominant position on the transit
Pipeline so the dominance come from the fact that as said bulgar gas has access to 100% of the capacity and is the only one uh that is resaling on the secondary Market the capacities and actually some operators got a bit of capacity in the secondary Market trans gas also needed
Needed consent from bulgar gas to resell the capacity when bulgar gas didn’t didn’t use the Capac capacity in the first place U of course that was not a very liquid Market because um the the the the the secondary capacities were always very shortterm and interruptible so it
Was not easy to enter the market so there the issue is not that it was easy or not to enter the no it was not then the qu the question was whether it was really uh attributable to bulgaras so here I think is the is one
Of the probably the main question is how to characteriz the abuse uh on on on the pipeline because the commission framed the case as a brono type of case of refusal to deal so maybe we can come back to to that just one second so brono is a is is a fairly
Old case it’s more than 25 years now I think it’s 98 he was um in the in the in the newspaper business and someone set up a retail network for home delivery of newspapers and someone Mr Bronner Oscar Broner I think uh came and asked for
Access against of course a fair fee to this retain Network and it was refused and that’s how uh we got uh the three cumulative conditions which needs to be um to be fulfilled to have uh to have a dominant operator to Oly him to to to give him a
Duty to contract so the the three cumulative conditions that refusal to deal makes entry impossible in the reala market there’s no feasible alternative and there’s no objective justification to the refusal to deal and so the brona conditions are very restrictive it has always been considered very restrictive
And why is that is because we don’t want to emper U the incentives to innovate even of dominant companies and of course there’s all the whole argument about the about the freedom to contract and so bur conditions are very restrictive and so that’s why when we are ESS essential facility type of cases
Seems to me that usually the commission tries to escape the Broner box you can see that for example in Lithuanian Railways latly uh we’ve seen that in energy for example in all the the commitment decisions that we had in the in the in the 2010s in particular for example any
But also others so we say okay it’s essential facility type but you don’t need to fulfill the Broner conditions there the the commission I think had no choice but to frame it as a bner type of abuse but even though of course it’s always a bit surprising when you are in
Energy it’s because of course the pipeline is a true essential facility because there to import gas to Bulgaria you need to have access to the pipeline and of course it’s not really easy to replicate a pipeline tomorrow of course ba B bulgar bulgaras in this case controls the facility so
There I think there’s no there’s no there’s no doubt about that uh and uh also that the annual fee amounts to an investment in the pipeline this I think is not really discussed in the Judgment but I think that’s also what also uh gets us back in the Broner box so once
The general court confirmed that Broner was uh applicable in that particular case which is in the end quite specific uh the general court however decided that the commission did not establish that there was uh an unlawful refusal to deal at all and for actually quite a few interesting reasons of course uh first
Reason was that a lot was in essence and you see that the judgment is really going into details and it’s extremely extremely thorough analyzis I have to say that’s why also it’s so long but lot of it is attributable to transgress behavior second thing is that uh some of
The other operators obtained access despite the functioning of uh the secondary Market on the pipeline um a third reason was I think interesting is that actually in in in concrete bulag gas did not oppose it seems the access request the commission has said that but the evidence
It seems did not show the same way and was actually rather constructive in granting access to those who wanted that and there came in again the notion of potential uh competition because it’s true that some operators went with some sort of exploratory questions to request access but it doesn’t mean that they are
That they had a real plan to enter the Bulgarian G market and so in the end there was no potential competition to restrict in these cases and also the Judgment made clear that to have um a Broner a Broner uh type of refusal to deal you need to have an explicit
Request and an explicit refusal which you didn’t have in this case and I think it’s it’s fair because this is exactly what you can find in Broner there’s a lot of development concerning the international agreement that was renegotiated in 2005 and where in a way but not really
Saying it very clearly I think uh the general court took into account so some sort of State action defense we said that yeah when uh you you your abusive Behavior actually you had no choice because you were just I mean maybe how could I said that but let’s say
Um following up on what the state decided then you not responsible for what you did and there it’s true that in that agreement it was a lot about the security of supply of Bulgaria and that it was fair for the company in the state to to make sure that they would have a
100% uh access to the pipeline so a whole sort of Act of argument in a way diluting the responsibility of bulgar gas um the commission did not establish either fully uh that there were refusal to deal on the transmission market and for the most part at
Shiran and that’s why even if it was true that there were some uh anti-competitive conduct especially on the storage facility and on the transmiss market it was not enough to back the operative part of the decision which was really based on a single and continuous infringement I think one
Thing that is really really interesting is that um the court found that it’s true that BH adopted an anti-competitive anti-competitive modu operand but it was incapable of restricting competition Downstream as River lacked access to the pipeline for reasons which which were not ATT attributable to bulgaras and so even
Though bulgaras were doing some bad things Downstream in the end it didn’t have in a way the potential to restrict competition because it was impossible to access the pipeline anywh but for reasons that were not linked to Its Behavior so I think that’s that’s quite interesting to see um there were also a
Procedural irreg irregularities on the case in particular the recording of documents relating to meetings with overas and the functioning uh of the information room where of course the the so the representants of the of the parties had had access to some information but what they could get out
Was to limit it to allow the companies to exercise the right of Defense so you have like you have a few P there that are interesting so I think a very interesting case overall pretty hard and heavy to swallow Before Christmas uh but we don’t know that if there will be an
Appeal yet I don’t think there’s one introduced but there’s still time so we will see back to youi thank you very much and thank you for digesting uh what is indeed a very heavy judgment very long I think it’s over a thousand paragraphs if I remember rightly captured the essence of it very
Well so I will now move on uh uh to state eight and um a number of uh interesting cases and Max is happily sharing my screen um some of them are a bit familiar um and I’ll try and get through them very quickly um the
The first one is a case called EST wind uh which we’ve actually I think also looked at um in one of the previous installments of this webinar and um it concerns um one of these uh kind of recur curring issues in state aid law um what is um to be considered start of
Works because for state aid um to be deemed um compatible uh one of the most important tests is that it has an incentive effect so um if you’ve already started constructing something like a wind farm um and then um having gone on to do that you um claim state then it’s
Questionable whether or not um you satisfy this test of incentive effect and if you’re giving money to someone who’s already doing what the the member state in question um wants to do so uh there there is there has been quite a bit of past case law and of course uh we
Do have guidance from the commission but um as in many of these cases of guidance the guidance isn’t very clear and there’s um there are Provisions in the what is now the old set of uh environmental Aid guidelines from 2014 um uh where this concept is explained to some extent but then
There is a footnote which kind of complicates um how to deal with this concept and it is as I say an ongoing issue uh but it is important because um it’s a concept that appears not just in the guidelines uh in the past but also in the current climate um and energy um
Environmental guidelines and also in the B exemptions um and what was important here was in fact that EST wind was trying to um apply for a new scheme when it was already an existing producer and it was uh an existing producer that was to benefit from an additional scheme um
To allow for the construction of a wind farm um and they had done some Preparatory work uh to um move into this new area um and this then was an important um concept uh were they actually starting new works and the the court uh looks at this U definition and
Comes up then with I think a fairly um um yes Common Sense approach and um if the wind farm um construction site had already been subject to Preparatory works and if uh there was a complete an irreversible commitment to actually go forward with the construction of the
Project then the the in the Court’s view uh ewp should then um comply with all the provisions um in the guidelines and should be eligible then for Aid going forward as an existing producer so this is a a good clarification of something that in practice although perhaps
Legally it doesn’t sound like a a very important point in practice it often actually is quite important um because otherwise um the beneficiary could find itself challenged and having to pay back the aid um which would be unfortunate so moving on to the next case um this is
Again one we’ve touched on before and this is really just um to uh remind us that the the concept of an interested party um who can Lodge complaints uh before um the courts um to challenge commission decisions is still very restricted um and here um it was a Trade
Union who had uh complained um to the way the commission uh was assessing an amendment to the French aren scheme uh this was a scheme which had also been deemed uh state aid in the past and it was updated and the Trade union complained that these amendments would actually Prejudice its members for
Various reasons um the commission uh didn’t take um their um issues on board so they challenged this eventual decision uh before the general court and um the general court followed I think the the usual strict interpretation of what an interested party is so this means often for for trade unions for NOS
Um it makes it very difficult to to rely on state a law uh to challenge decisions um of your government which was what was really an is issue here it was the amendments in France to the scheme that were particularly problematic so moving on to the next one um and here also this
Is one that we’ve we’ve seen before in previous um um seminars or webinars um and here this is quite an interesting case we now have a challenge um to the the the general Court’s findings um uh the general court had actually rejected uh the Spanish company n tury Energy’s
Complaint that the commission um had opened a formal investigation so as you’ll recall state aid procedures comprise two parts uh the opening decision where the commission is supposed to come uh with a reasonably quick um finding and if the commission has serious doubts about something then it should move on to a formal
Investigation um which obviously can last a lot longer and um third parties do have the possibility of submitting uh written comp written observations at this stage um but Nur um Nur uh found that there was no justification for the commission um to open this um formal investigation into a Spanish measure
That was aimed at desulfurizing um its co- plants and uh in particular um the the company argued that um the commission hadn’t actually Justified um its decision to open the formal investigation um in sufficient depth and one of the issues that had took um issue with uh was the concept of
Selectivity uh because allegedly um these measures were addressed to um all operators of C plants and there therefore should not at least in in E views have been found selective now the commission said well wait a minute you know this is um the arguments in the opening decision uh where we then uh
Come to a conclusion that we do have serious doubts are only uh preliminary and we can develop our reasoning we the commission we can substantiate our reasoning at the next stage at the formal stage um but it’s interesting here because The Advocate General signs with the aid beneficiary uh and says
Well you know if um if the commission does decide to open the the formal investigation this obviously has um implications and quite serious implications for the aid beneficiary because um if the Spanish government has followed all the usual uh requirements and notified uh the aid for clearance uh
To the commission then they have to to wait until the commission finalizes its um investigations and adopts a formal decision so this can take quite a long period and therefore in the meantime the beneficiary does not receive the aid so uh for those reasons The Advocate
General um takes the view um that the commission should indeed have um given uh clearer reasons so this is uh be interesting to see what the the court of Justice makes of this case now moving on then to the next case um I’ve added this um it wasn’t actually on the list we
Publicized but it’s a very um it’s a very short ruling and whereas poor Adrian had thousands of paragraphs to read uh this one I think um was confined to two pages um but it’s quite an important case um concerns the railway sector um so not really an energy case
But it’s one that has quite a bit of relevance for any uh sector um um because it concerns the application of the the market investor principle um so the the Spanish sorry the Czech Railway operators had sold some of its operations um to in fact a student body
I’m sorry about the um misspelling here uh and that was challenged in the National courts because um they had not sought to clear the terms of that Sal so they hadn’t notified it uh for clearance so they had breached um all the procedural rules at least in the view of um the
Complainant um but this case um was um an old case in fact you see it was from 2008 and in accordance with the procedural regulation that implements the state aid rules um article 17 of the procedural regulation from 2015 um the commission can no longer recover Aid after 10 years so after that
Limitation period has expired but the question before the court coming from the the Czech Supreme Court was well what about National limitations we have no limitation under cck law H do we have to then apply the EU limitation period and the court says no um it’s a question
Of national law subject of course uh to the usual um conditions of equivalence and Effectiveness so that’s actually quite an interesting case and the reasoning it follows earlier case law where the court of justice has said well if the state hadn’t notified um it shouldn’t as it
Were uh be allowed to use this limitation period under EU law to Shield itself from damages uh under national law so that um an important case um next one please uh this one um is also Saga which we’ve touched on before um and what’s quite interesting here is one of the issues in
Fact that was argued uh before the court that was that this case should no longer be um admissible um because um or the commission’s decision um should not be considered admissible because it had taken so such a long time to actually reach a decision um the the the issues
Um arising in this case go back to 2011 um it’s 12 years ago of course the commission had um been intervening so we’re not talking about the statutory limitation period here it’s just that each stage of the procedures took a long long time um so um this this was a a
Case which um concerned the way German transmission tariffs were constructed at the time and there was an article um in the relevant uh law uh whereby the the Federal Energy agency the the bundes net Hur um had been mandated uh to give an exemption uh from certain Network
Charges charges to uh large users and um this um it was a rather complicated way that this exemption was put into effect it was challenged at National level and actually that decision was quashed um the the network agency’s decision was caued but in the meantime lots of challenges were lodged before the German
Courts um one of those courts made a reference to the commission to ask for some clarity as to whether or not these measures were Aid or not and uh meanwhile many of the large users as well as the German government challenged the commission’s eventual decision um that um this network um charge exemption
For these large users was in fact a state aid now it’s a complicated quite a complicated case and it really turns of course on the question of um whether or not we are in the state aid box where these tariffs actually State resources uh but it’s quite interesting
To note that um the commission um tries to kick the case out of court uh by claiming that um the beneficiaries of the aid and those parties then um who had raised the action were out of time uh because they had not challenged the commission’s decision within the the two months uh
That is normally required to Lodge a challenge and the commission said they knew about this decision um quite a long time before it was published in the official journal and therefore they should have mounted their challenge within two months from the date they actually knew about it and not from the
Date uh in the official Journal this is a trick uh an argument that um comes up again and again and again uh and the um Advocate General dismisses this and said it’s the date of publication so is the date of publication in the official journal and that’s of course um important because it
Gives people a lot more time to prepare but still it demonstrates that um it’s it’s a bit of a dangerous um game if you only uh rely on the publication in the OJ okay so going back to what was the key here the key issue was whether or
Not this network charge exemption uh was to be qualified as state resources and this is an ongoing issue and it’s partly an issue that has resurfaced because um the case law of the court is really um not very clear um and the case law seems
To um evolve uh from one um one case one judgment to the next in a very pragmatic way um where a lot seems to turn on the facts of each case um and what was particularly problematic after um a case that we refer to as the
EEG case um that was um a ruling of the the grand chamber of the court of justice in 2021 uh on German Network tariffs um of which this particular case was um indirectly related but um in that case that EEG case uh the court seemed to
Roduce two tests as to whether or not to determine whether um a tariff exemption would be a state aid or not um it wasn’t enough just to say there was a Levi at issue that seemed to be the normal way we looked at these things from previous
Case law um the court in this EEG case has said oh there also has to be um an additional test that there is State control over the proceeds of this Levy um and earlier case laws seem to indicate that those were two alternative tests not two cumulative tests and The
Advocate General then has to um approach this argument um also in the light of the case law that has come um after the EEG 2021 case and in particular um Spanish case dois h um so uh The Advocate General relies he goes into some detail on this earlier
Case law so it’s worth it’s worth reading this again a rather long uh opinion but still he clarifies uh the case law and um he emphasizes uh the difference between this EEG case and the the rest of the case law and says these two uh cases are um alternative these
Two tests so if the levy in question is is mandated by the state that’s it you don’t have to then apply the additional uh State Control case so let’s see what the court makes of that uh there are a number of cases there’s the case brought by the um the German government but
There’s also um a case brought by the another set of users in finan um um all on the same issue so uh this is this is a will be a very important uh ruling when we get it and we’ll talk about it hopefully the next time so moving on to
The next case and I see we’re um running out of time a little bit so I’ll try and speed up so that we can get back to Adrian uh to look at the pending cases uh this one I can really dispose of quite quickly um this this is about the
Standard of review that the acers Board of appeal should apply um now we had um a discussion before about the aquent case um and the issue here is whether or not the board of appeal which is the the first um the first station of appeal if you like the first tier for an
Appeal against an Acer decision uh whether it should take should conduct what we call a full review so it looks at all the facts and the law um or it should have restricted itself to um a marginal review a limited review where it only looks to see if there has been a
Manifest um error or manifest failure of assessment of the facts or a failure um to apply the law properly so the key issue here was that um when the court um when the court was asked to consider whether the board had merely applied this this marginal review U of a
Decision of Acer about as to how to award um um a booking gas booking platform function at the German Polish border um Acer had failed uh to um develop and produce uh proper evaluation criteria for these tenders um the board had quashed the first Acer decision Acer
Took a new decision and uh in fact selected two new operators uh and however not OPG who then challenged uh the decision um what was I suppose a little bit complicating was that the ACA regulation um had meanwhile U changed we have the recast regulation uh which
Changed the powers of the board of appeal so the board can no longer um a null um an Acer decision it sends it back to um to Acer uh to make a new uh decision uh so uh what did that affect whether or not the board was justified
In only um carrying out a marginal review while the court here could be quite um short because that issue had in fact already been decided in the acent case so although the board um must act quickly it has to take a decision within four months it still is required to
Carry out a full review so the next case um is um if we can move on Max um uh it’s a very important case um uh and although it’s not directly related to state aid control um it is a key plank um in developing a more um
Effective control um over uh the way um the European bodies uh decide to finance uh various projects and um this was a case uh brought by by client Earth um um and client Earth had um in fact challenged a decision of the eiib the European Investment Bank um to um the IB
Refused to conduct what’s called um an internal review as required under the arus uh convention which is in turn um implemented into EU law by a regulation um at that time when this case was brought it was a regulation of 2006 um now that regulation um requires
Then uh that the act in question um has to be an administrative Act and the eiib supported by the commission um tried to argue that the general court had um actually uh committed also an error of law by finding that it’s decision the eib’s decision um to approve the
Financing of a a biomass Power Generation Plant in Spain uh was um an administrative act not an exercise of its own um sort of financial uh review um the this um was was one of the main grounds um of the challenge brought by the EB and the EC
Uh there were several other heads of appeal but unfortunately we can’t go into all in detail but what I think is very important is that the ecj uh takes a very um theological approach looks at the purpose of the Convention as implemented by the regulation and um it affirms that uh
This type of financial decision um is subject to the convention and the implementing regulation and therefore the eib was under duty to conduct this internal review that means the EI then takes a decision which also then of course can be challenged in court um and this is why uh for state aid decisions
This step um in the that the um ourhouse convention implemented through the regulation uh can provide um to a way in to uh challenging some of these decisions whereas as we’ve seen from the Trade union case mentioned earlier it’s very difficult U to claim to be an
Interested party uh in state aid law but here of course it’s the NGO that’s requested the internal review and if they don’t get it then it is obviously a party affected uh by the decision in question so finally moving on uh we have um one more case um which is quite
Interesting um and there I think just um to be very brief uh this case really shows the Court’s uh deference to security of Supply um and Urgent um sort of urgent measures that have to be taken um in the interest of security of supply and this case concerned um a tender um
For the coordination of um s tender just set up a platform to coordinate uh gas purchases in the wake of the energy crisis uh this platform has become known as aggregate EU U now the commission um did not um follow a normal open uh procurement procedure uh but rather um
It applied um a much um shortened procedure so-called negotiated procedure without prior publication of a contract and that would been um Justified only according to European procurement law um by the urgency of a situation now there is an alternative and that’s called the Urgent open procedure and the commission could have
Done that so here um a rival platform argued that they could have qualified they could have met um all the conditions uh that were required to set up this platform um uh in uh very short space of time but they wen’t they were not allowed even uh to um submit a bid
Because they weren’t even invited uh to participate in the tender so that that was then the reason they launched um this um the action for analment of the commission’s decision uh to restrict these tender procedures so there um there’s quite a lot of interesting arguments made uh by nmac that in fact
It was doubtful that it was really so urgent because it took about 10 months uh to get the whole thing set up um so were there really was there really a security of Supply issue at all here now you see that the court doesn’t really
Want to go into all the facts and S gives the the commission quite a wide discretion there um I think that’s sort of a normal way that the court uh deals with with these types of cases if uh the institution says there’s a security of Supply issue the court tends to accept
It as its word so um that’s will be an interesting perhaps an interesting precedent for a lot of the other challenges that have been brought against the uh emergency measures adopted um in 2022 Adrien uh the last word is yours you still have about five or 10 I think
5 10 minutes to go through the pending cases yeah thank you thank you very much Le a lot of very interesting cases you discussed um as to uh the pending cases here here they are so it’s only of course a selection and there are many so
I will run you through that as quickly as I can and so you were talking about nmac and that’s comes Andy because we’ll have other challenges uh concerning uh EU and National measures that were adopted uh in the impending energy crisis so at the EU level uh we have a
Few challenge before the general court um challenging uh the regulation and price intervention and one big case before the court of justice concerning the regulation uh on coordinated Dem reduction introduced by Poland and Poland introduced a series uh of appeals all raising in essence the issue of the legal basis and
So this one we will have to follow carefully and discuss again I point to your attention uh the recent electral um preliminary reference that was introduced a few weeks ago uh on the calculation of winful profits and so now we see that we get the cases also uh
Through uh the National Courts at the national level of course is these are the state issues and in essence it’s always either that my competitor benefits from the end and I don’t which is unfair or I don’t and it’s normal but I shouldn’t Finance it and so you have
Two two cases I think interesting one in Spain and one in Germany so that’s for the energy crisis then we have the uh cases related to the taxonomy Reg ation so in particular the two delegated acts uh the one concerning bio energy and Forestry and the other one concerning
Nuclear so uh on the one concerning um nuclear we have had already uh two appeals declared inadmissible but we have all the other ones pending and these ones are also very uh important I think with for example in the Austria commission case lots of interveners so
They are all with the same formation of judgment so we’ll see how it evolves but this we will have to follow uh carefully on the regulatory side um many cases of course there is really just a selection because we never know how they will if they will proceed Up Until the
End particular we get them uh almost exclusively through the preliminary ruling procedure and so you have on energy tax taxation on the UTS consumer protection Etc I singled out just a few the first one is the only one we have as a direct field which is the
Rvo in North stream two so as you remember uh North stre 2 appealed the modification of the gas directive when it was modified to uh kind of extend the unbundling provisions to um infrastructure link to third States and there when nor stream appealed the general court decided that it was that
No stream was not directly concerned and this was quashed by a judgment of the of the grand chamber of the court so now it’s back at the general court which will have to uh rule of course on what’s the remaining scope of the case and then
On the substance and there there’s a lot of I think a lot of interesting arguments there is one I found in Finland on the power and Independence of regulators one in Bulgaria on who Bears responsibility to constitute minimum oil stocks which is of course important now that we’ll have minimum or minimum
Reserves for different Commodities in different in different in different areas one where we already have The Advocate General opinion concerns a consumer law and what what does that really mean to be able for the supply for the for the consumer to switch Supply to switch Supply easily what are
The conditions that should be there in particular in the contracts so on that side of things we have also a lot of cases we have now a new stream of cases that EOS what you discussed concerning the the client Earth eiib cases so which concerns um the application of the oru’s
Regulation um there we have different things one is a request for a review that was denied of the regulation that was adopted end of 2022 on the acceleration of renable deployment and we have also the ones where it was there were had the request for review of the climate Plans by the
EC was denied and so of course this uh this um refusals can be challenged before the general C so we see more and more of these cases and so that shows the relevance of the O regulation sorry I’m going quickly already three so the S case is just to show you the number
Compared for example to the SL which are the competition stated cases and see when I see on our the court docket the general court and court of justice in yeah you have almost as many cases concerning as now than concerning state aid and competition together um so
They’re also coming and coming when you see in 23 we had actually one two three four five yeah six cases again um and some introduced and again there by the bundes net again to and and Germany some national regulatory authorities uh and member states coming after ACA so that’s really that’s really a
Um yeah stream of cases that is not that is not drying out so was mentioning competition State a and competition there’s no it seems to me no 101 and 102 cases there left but we have still the S Wave of appeals concerning the awe on asset swap uh that should be over soon
Because I think we will have the Judgment in a week now this is a s wave and um according so in state so you you talk about most of them uh or some of them because we had the advocate General’s opinion there I would uh draw your attention to the one concerning
Hungarian nuclear which this one I think is is most important and yeah the end of the DI Saga also so I think that’s about it yeah thank you thank you very much Adrian thank you um I know that we’ve uh we’re past our time I don’t think I saw any questions in the
Chat um maybe if anyone has a burning question before we are shut down alen are we allowed to stay on for a few minutes or yes sir yes okay so if there are any questions but I think it’s um I think most people have had to
Go sure short um short session um but as you as you’ve seen from the list um there’s some fascinating cases just um decided but also uh a lot of really important painting cases and we’ll be back next year with moment yeah yeah so it’s always a pleasure to be able to do
To do this um and to review um the way energy law uh keeps keeps evolving keeps us all busy so thank you very much for joining us thank you Max for helping us um and also um thank you um to uh the FSR and the human Center for getting
Everything organized today so I wish you all um a very happy festive season and uh a very good New Year and we’ll see you hopefully in 2024 thank you bye bye thank you bye thank bye