The General Advocate of the European Union has given a resounding endorsement to Naturgy’s theses, in relation to the heavy appeal against the investigation initiated by the European Commission in 2017 on the Spanish aid regime for coal plants to reduce emissions contaminants. For this chapter they granted 440 million euros to 14 plants since they were launched ten years earlier. Specifically, the Advocate General’s recommendation, which is not binding but influential, suggests that the Court of Justice of the European Union (CJEU) thus annul the General Court ruling that rejected the appeal filed by Naturgy. He also calls for the Commission’s preliminary finding that coal supports constitute state aid to be annulled as well.
The electricity company chaired by Reynés, along with other companies such as EDP Spain, Generaciones Eléctricas Andalucía and Endesa Generación, argued in their appeal that the General Court erred in the judgment and argued that the Brussels decision lacked grounds and criticized it sufficiently for considering that the classification of the incentives as aid incompatible with the internal market was correct.
However, the Advocate General maintains that the General Court made mistakes and saw its legal reasoning as “flawed” and stresses that, in the opening decision, the European Commission must carry out all the appropriate analyzes that allow the parties to refute the legal arguments in under which the measure adopted by the Member State is classified (provisionally) as state aid incompatible with the internal market.
An error of appreciation of the European Commission
Along these lines, the lawyer adds that it is the Commission that must analyze the comparability of the situations between market operators, presenting all the arguments leading to assessing an alleged State aid incompatible with the internal market, although the analysis, for its provisional nature, it can be modified in the course of the formal investigation procedure.
In the same way, this representative of the European Justice adds that the non-existence of a comparative analysis in the opening decision allows us to consider that it is making an error of appreciation and warns that, if the reasoning of the Commission’s decision is insufficient and incomplete , there is a risk that the correct distribution of the burden of proof will be disrupted to the detriment of the parties who support a thesis contrary to that of the Community Executive.