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Milestone or Tombstone?

Climate Change and State Aid Procedures - Tempus Fugit?

Leigh Hancher

DOI https://doi.org/10.21552/estal/2022/1/9

Keywords: GC, Tempus, Milestones, pre-notification, interested party

In Case T-793/14 Tempus UK, the General Court (GC) had concluded that the EC should have opened the formal procedure provided for in Article 108(2) TFEU into a complex UK measure on a capacity mechanism remuneration (the UK CRM), on the grounds that the assessment of the compatibility of the measure notified with the internal market gave rise to doubts within the meaning of Article 4 of Regulation No 659/1999. The GC considered inter alia that the observations from third parties, the length of the pre-notification procedure (18 months), and the complexity and novelty of the measure indicated that the Commission should have had doubts about the compatibility of the measure with the internal market. The ECJ subsequently overturned this GC. In the following Tempus Poland case, the GC applied the ECJ’s approach. One of the most interesting features of the Tempus cases is the role of the pre-notification period and its impact, if any, on third party or ‘interested party’ rights in the further stages of the procedures. It is this feature of the Tempus cases that will be a primary focus of this article.
Keywords: GC; Tempus; Milestones; pre-notification; interested party
Milestones Preview: this article is based on a chapter in the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Leigh Hancher is Professor of European Law, Tilburg University, Professor of Energy Markets, Bergen University and Professor of EU Energy Law, FSR/RSCAS/EUI. She is special counsel to the Brussels office of Baker Botts PLC.


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