Order of the Court (Sixth Chamber) of 29 May 2024

1. Questions referred for a preliminary rulingQuestions the answer to which may be clearly deduced from the Court’s existing case-lawApplication of Article 99 of the Rules of Procedure

(Rules of Procedure of the Court of Justice, Art. 99)

(see paragraphs 27, 28)

2. Aid granted by a Member StateProhibitionExceptionsAid capable of being regarded as compatible with the internal marketAid for protection of the environmentGuidelines on State aid for protection of the environmentOperating aid for the production of renewable energyConcept of start of worksAssessmentCriteriaConcepts relating solely to the energy-producing installation to the exclusion of other installations economically linked to it

(Art. 107(3) TFEU; Commission Communication 2014/C 200/01)

(see paragraphs 30-35, 37-45, operative parts 1 and 2)

Operative part

1. The concept of ‘project’, within the meaning of recital 42 of Commission Decision C(2017) 8456 final of 6 December 2017 concerning amendments to the Estonian support scheme for electricity produced from renewable sources and efficient cogeneration, and that of ‘start of works’, within the meaning of recital 43 of that decision and of paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’,

   must be interpreted as relating solely to the energy-producing installation, regardless of whether that installation forms part of larger investment projects, comprising other installations that may be economically and/or technically linked to that energy-producing installation, which form an integral part of an overall investment project and are likely to make the operation of those installations more profitable.

2. In the context of recital 42 of Decision C(2017) 8456 final, the concept of ‘start of works’, within the meaning of recital 43 of that decision and paragraph 19(44) of those guidelines, must be interpreted as meaning that, for such a start to be recognised,

   • the Member State concerned is not required to prove that the aid applied for has an incentive effect; the determination to be made by the competent national authority concerns solely whether or not the developer has a legitimate expectation that that aid will be granted;

   • it is necessary to examine, in each case, whether the project was at such a stage of development that it appeared highly likely that it would be successfully completed and whether the project was sufficiently advanced so as to enable the developer to be treated in the same way as an existing producer of renewable energy;

   • account should be taken of the proportion of the total value of the project represented by the investments made, the commitments entered into, the construction work carried out and the expenditure incurred in order to determine, in particular, whether the commitments entered into were sufficiently significant, in terms of their nature and cost, in relation to the total scale of the investment project concerned;

   • it is necessary to evaluate the stage of development of an investment project, where appropriate, in respect of each case coming within that concept, and

   • only the commitments entered into in respect of the investment project relating to the energy-producing installation itself are to be taken into account, to the exclusion of commitments entered into in relation to other installations forming part of an overall investment project.