E-10/22 - Eviny AS v EFTA Surveillance Authority


E-10/22 - Eviny AS v EFTA Surveillance Authority


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Deadlines: Motivation ministry:    28 December 2022
Written observations:                    13 February 2023

Keywords: state aid; competition; streetlight infrastructure; economic activity

Subject: Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA)

Facts of the case:

The present application seeks annulment of ESA Decision No.161/22/COL. The decision concerns alleged aid to BKK Nett AS, Veilys AS and Eviny Solutions - all subsidiaries of Eviny AS (hereinafter collectively and individually referred to as "Eviny). The contested measures relate to alleged overcompensation for payment of (1) operation and maintenance costs and (2) capital costs in relation to streetlight infrastructure in Bergen. The vast majority of the streetlights are owned by Eviny, whereas a minority is owned by Bergen municipality. The alleged aid concerns the period from 01-06-2007 and continuing (capital costs), and the period from 01-01-2016 and continuing (operation and maintenance costs). However, for the streetlights owned by Bergen municipality, EFTA Surveillance Authority (ESA) concludes that no aid exists after 01-04-2020, after which the services were delivered by Eviny following a competitive tender procedure. The Applicant bases its application for annulment on the following six pleas. Firstly, ESA commits a manifest error by applying the notion of undertakings and concluding that streetlight ownership and operation is an economic activity. Secondly, ESA commits a manifest error of assessment by concluding that Eviny received an economic advantage through overcompensation. Thirdly, there is no distortion of competition. Fourthly, there is no effect on trade. Fifthly, any alleged aid is established and granted in 1996, and would therefore be existing aid. Sixthly, the Contested Act is based on an insufficient examination of the facts and fails to state a proper reasoning in violation of SCA Article 16.

Application summary:

the Applicant respectfully submits that the EFTA Court shall:

- Annul Decision No.161/22/COL, of 6 luly 2022, of the EFTA Surveillance

Authority; and

- Order the EFTA Surveillance Authority to pay the costs of the proceedings

Cited (recent) case-law: (C-180/98), (C-159/91 and C-160/91), AOK Bundesverband (C-264/01, C-306/01, C-354/01, C-355/01), Chronopost SA v Ufex and Others (C-83/01 P, C-933/01 P, C-94/01 P), (C-244/18 P), (C-300/16 P), Commission/BuczekAutomotive C-405/11 P), Commission v FIH (C-579/16 P), Commission v MTU Friedrichshafen, (C-520/07 P), EDF v Commission (C-124/10 P), Scandlines C-174/19 P and C-175/19 P), Altmark (C-280/00), France Telecomv Commission (C-81/10 P), Oy (C-6/12 P), Sildwestrundfunk (C-492/17), France v Commission (C-41/93), Mediaset (C-69/13), Commission v France (C-441/06)

Policy Area: EZK