The AG Opinion in Commission v. Tempus Energy (C-57/19 P) or the risk of a further weakening of third party rights in State aid procedures

symbols of justice and law on table of judge

Two instructive blog posts on the weak rights of third parties in State aid procedures have most recently appeared, by Prof. Leigh Hancher (see here) and by Juliette Delarue (see here). Reading those can only be recommended — they set the right tone as regards the disappointing AG General Opinion in Commission v. Tempus Energy (C-57/19 P).

The Commission should have to take submissions of third parties seriously, and not be allowed to protract its pre-notification discussions with the Member State until all doubts appear to be eliminated, so that it can then approve the aid measure or scheme following a very short preliminary investigation. This is a misuse of the procedure and risks to only lead to further erosion of third parties’ rights in State aid procedures. Instead, the Commission should be held to a strict standard for what is a diligent and impartial examination. Hiding behind possibly misleading information offered by the notifying Member State (this possibility is expressly recognised in paragraph 83 of AG Tanchev’s Opinion) to excuse itself from properly investigating claims by start-up companies who are discriminated against in schemes designed mostly by influential incumbent market players cannot be an option for the Commission. Otherwise, all of the Commission’s calls for a Green Deal for European Consumers and an Energy Transition that leaves no-one behind are meaningless.

In paragraph 133 of his Opinion, AG Tanchev wrote: “It seems to me that, given the difficulty of gathering reliable information, the Commission cannot be faulted for failing to carry out its own investigation of DSR potential.” Does this make any sense? Shouldn’t the Commission, the more difficulties exist to gather reliable information, all the more be required to use its investigative powers to obtain such reliable information? As the General Court rightly pointed out in its Judgment of 15 November 2018 in the underlying Case T-793/14, ECLI:EU:T:2018:790, at paragraphs 155 and 156, the Commission could not have accepted the UK Government’s approach to assess the potential of innovative technology (in this case demand-side response) to reduce the need for State aid only after the first auction in the notified State aid regime. After all, the AG recognises (at paragraph 80 of his Opinion) that the Commission is also in the preliminary investigation held to conduct a “diligent and impartial examination” (not only in the formal investigation procedure).

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