DEI v Commission: General Court provides guidance on the application of the private investor State in arbitration proceedings
The General Court delivered its judgment in the cases DEI v Commission (T-639/14 RENV II, T-352/15 RENV, T-740/17 RENV), concerning whether an arbitration agreement between Greece’s state-controlled electricity utility, Dimosia Epicheirisi Ilektrismou (DEI), and its largest industrial customer, Mytilinaios AE, an aluminium producer, constituted State aid under Article 107(1) TFEU.
In 2010, the parties agreed to resolve an electricity tariff dispute through arbitration under Greece’s Energy Regulator (RAE). The 2013 arbitration award set a tariff of EUR36.6/MWh, prompting DEI to complain to the Commission that it was forced to sell below cost and that the measure amounted to State aid. The Commission rejected the claim, finding the award not attributable to the Greek State.
After years of litigation, including a 2021 annulment by the General Court later overturned by the Court of Justice in 2024, the General Court has re-examined the case and dismissed all of DEI’s remaining pleas. It found no breach of procedural rights, holding that the Commission was not required to reopen the complaint process and had ensured DEI’s right to be heard. The Court concluded that the private investor test was applicable and correctly applied by the Commission, as DEI’s decision to submit its tariff dispute to arbitration reflected behaviour a prudent private electricity supplier could reasonably adopt.
The Court also rejected claims concerning the provisional RAE tariff and the alleged misinterpretation of prior case law, confirming that earlier acts had been lawfully withdrawn and replaced. The GC thus dismissed the action in Case T‑740/17 RENV and declared that there is no longer any need to adjudicate in Cases T‑639/14 RENV II and T‑352/15 RENV.
For more information, see the GC’s judgment.