Aide d’État – Lituanie — AIDE D’ÉTAT SA.44725 (2019/C) – Lituanie — Obligation d

Journal officiel
de l'Union européenne

Série C

C/2026/885

11.2.2026

AIDE D’ÉTAT – LITUANIE

AIDE D’ÉTAT SA.44725 (2019/C) – Lituanie

«Obligation de service public (OSP)» concernant la sécurité de l’approvisionnement en électricité

Invitation à présenter des observations en application de l’article 108, paragraphe 2, du traité sur le fonctionnement de l’Union européenne

(Texte présentant de l’intérêt pour l’EEE)

(C/2026/885)

Par lettre du 12 décembre 2025, reproduite dans la langue faisant foi dans les pages qui suivent le présent résumé, la Commission a notifié à la Lituanie sa décision d’étendre la procédure prévue à l’article 108, paragraphe 2, du traité sur le fonctionnement de l’Union européenne en ce qui concerne la mesure susmentionnée.

Les parties intéressées peuvent présenter leurs observations sur la mesure à l’égard de laquelle la Commission ouvre la procédure, dans un délai d’un mois à compter de la date de publication du présent résumé et de la lettre qui suit, à l’adresse suivante:

Commission européenne

Direction générale de la concurrence

Greffe des aides d’État

1049 Bruxelles

BELGIQUE/BELGIË

Stateaidgreffe@ec.europa.eu

Ces observations seront communiquées à la Lituanie. Le traitement confidentiel de l’identité de la partie intéressée qui présente les observations et/ou d’éléments de ces observations peut être demandé par écrit, en spécifiant les motifs de la demande.

RÉSUMÉ DE LA DÉCISION

Le 2 mars 2016, la Commission a été saisie d’une plainte émanant de la confédération lituanienne des industriels et de trois de ses membres: AB Achema, AB ORLEN Lietuva et AB LIFOSA. Ceux-ci exprimaient des inquiétudes à propos d’aides d’État présumées qui auraient été octroyées à plusieurs acteurs du marché au moyen d’«obligations de service public (OSP)» définies par la Lituanie dans le secteur de l’électricité par une loi de 2012 (1), notamment des obligations concernant la sécurité d’approvisionnement (2). Le 3 juin 2019, la Commission a ouvert une procédure formelle d’examen sur la compatibilité de la mesure en cause (ci-après la «décision d’ouverture de 2019») (3).

La Lituanie exigeait deux services apparemment nécessaires à la sécurité de l’approvisionnement, qui font l’objet de la présente décision:

a)	un «service de production»: le bénéficiaire retenu devait produire un certain quota d’électricité prédéterminé et percevait une compensation pour chaque mégawatt/heure (MWh) généré dans le cadre de ce quota; et

un «service de réserve»: le bénéficiaire retenu devait rendre disponible une certaine capacité de production d’électricité prédéterminée (en mégawatts – MW) et faire des offres sur le marché pour produire de l’électricité à un prix équivalant aux coûts évitables liés à l’exploitation de la centrale, de sorte qu’il ne produirait que lorsque le prix du marché correspondrait à ses coûts d’exploitation. Le bénéficiaire percevait une compensation pour la disponibilité de sa capacité, qu’il produise ou non de l’électricité.

En 2013, 2014 et 2015, la Lituanie n’a eu recours qu’au service de production et en 2016, 2017 et 2018, elle n’a eu recours qu’au service de réserve.

Entre 2013 et 2018, c’est la centrale électrique lituanienne («LPP») qui a été choisie par le gouvernement lituanien pour fournir les deux services. LPP fait partie du groupe énergétique historique contrôlé par le gouvernement lituanien, dont la société faîtière est désormais dénommée AB Ignitis Gamyba. La compensation totale pour les services en question s’élève à 361 millions d’euros.

Dans la décision d’ouverture de 2019, la Commission a examiné les services en cause et est parvenue à la conclusion préliminaire qu’ils constituaient une aide d’État. La Commission a apprécié la compatibilité de l’aide avec le marché intérieur au regard du traité sur le fonctionnement de l’Union européenne (TFUE) et du chapitre consacré à l’adéquation des capacités de production des lignes directrices concernant les aides d’État à la protection de l’environnement et à l’énergie pour la période 2014-2020.

Par cette extension de la procédure formelle d’examen, la Commission apprécie la compatibilité des services en cause au regard de l’encadrement de l’Union européenne applicable aux aides d’État sous forme de compensations de service public (ci-après l’«encadrement SIEG»).

Véritable service d’intérêt économique général

Lors de la définition des services en cause, il se peut que la Lituanie ait exercé son pouvoir d’appréciation sans commettre d’erreur manifeste d’appréciation, notamment au regard des objectifs poursuivis par ces services, qui se rapportent à ceux énoncés à l’article 3, paragraphe 2, de la directive sur l’électricité.

Toutefois, la Commission maintient les doutes qu’elle avait exprimés dans la décision d’ouverture de 2019 quant au respect des exigences spécifiques énoncées à l’article 3, paragraphe 2, de la directive sur l’électricité. Plus précisément, les éléments dont nous disposons montrent que la mesure:

—	peut ne pas avoir été transparente, parce que les exigences techniques de la mesure ne semblent pas avoir été suffisamment fixées dans le cadre juridique applicable;

—

peut avoir été discriminatoire, étant donné que les justifications avancées par la Lituanie semblent être postérieures à l’attribution des services en cause à Ignitis Gamyba et que d’autres fournisseurs auraient pu être en mesure de satisfaire aux quelques exigences techniques prédéfinies et fixées dans le cadre juridique applicable;

—

peut avoir été disproportionnée, parce qu’elle allait au-delà de ce qui était nécessaire pour assurer la sécurité de l’approvisionnement en exigeant la production de volumes prédéterminés d’électricité, en déplaçant la production sur le marché, y compris les importations, et parce qu’une mesure ouverte à la participation active de la demande aurait pu être moins coûteuse et moins restrictive.

Il semble douteux que les parties prenantes aient été en mesure de formuler des observations sur les besoins de service public soutenus par la mesure, car le cadre juridique applicable et les plans décennaux des GRT, qui ont été soumis au public pour consultation, ont peut-être été trop vagues pour que les parties prenantes puissent évaluer de manière significative la nécessité de services visant à stabiliser les prix sur les marchés de gros.

Nécessité d’un mandat précisant les obligations de service public et les méthodes de calcul de la compensation

Les actes juridiques cités par la Lituanie comme constituant le mandat ne semblent pas avoir précisé la nature des services en cause, étant donné que leurs exigences techniques n’étaient que partiellement définies et que, même alors, les services en cause n’ont été fournis qu’au cours de deux années sur six.

Durée du mandat

Les services en cause semblent avoir été correctement confiés annuellement pour une période d’un an.

Respect de la directive 2006/111/CE

En l’absence d’une définition claire du contenu et des exigences techniques des services en cause, il n’apparaît pas que la séparation comptable entre les activités non SIEG et les activités SIEG, telle qu’elle a été mise en œuvre, ait été appropriée.

Respect des règles de l’Union applicables aux marchés publics

Il se peut que la Lituanie n’ait pas respecté les règles de l’Union applicables en matière de marchés publics.

D’une part, les services en cause ne semblent pas avoir été attribués de manière transparente, étant donné que les avis de marché n’ont jamais été publiés et que toutes les exigences techniques relatives aux services ne semblent pas avoir été prédéfinies et énoncées dans la documentation pertinente.

D’autre part, les services en cause semblent avoir été attribués de manière discriminatoire, étant donné que d’autres prestataires, dont les plaignants, semblent avoir été en mesure de satisfaire aux quelques exigences techniques prédéfinies et énoncées dans la documentation pertinente.

Absence de compensation discriminatoire

Étant donné que les services en cause n’ont été attribués qu’à une seule entreprise, il ne saurait être question d’une compensation discriminatoire entre prestataires de SIEG.

Montant de la compensation

En l’absence d’une définition claire du contenu et des exigences techniques des services en cause, il n’apparaît pas que la Lituanie ait satisfait aux différentes exigences nécessaires pour démontrer que la compensation octroyée pour les services réunissait les critères applicables.

Transparence

Il se peut que la Lituanie n’ait pas respecté l’obligation de publier les résultats de la consultation publique ou d’autres instruments appropriés visant à tenir compte des intérêts des utilisateurs et des fournisseurs.

Exigences supplémentaires pouvant se révéler nécessaires pour garantir que le développement des échanges n’est pas affecté dans une mesure contraire à l’intérêt de l’Union

Étant donné que les services en question ont été directement attribués à l’opérateur historique détenu par l’État sans procédure de mise en concurrence, et compte tenu des divers doutes exprimés ci-dessus, des exigences supplémentaires visant à garantir que le développement des échanges n’est pas affecté dans une mesure contraire à l’intérêt de l’Union auraient pu être nécessaires.

Conformité avec d’autres dispositions pertinentes du droit de l’Union

La Commission invite la Lituanie et les parties intéressées à faire connaître leur point de vue sur la question de savoir s’il existe un lien d’affectation contraignant entre la taxe utilisée pour financer la mesure en cause et l’aide octroyée au titre de cette mesure et, dans l’affirmative, si cette taxe enfreint potentiellement l’article 30 et/ou l’article 110 du TFUE.

La Commission invite les parties intéressées à formuler des observations sur tous ces points.

Conformément à l’article 16 du règlement (UE) 2015/1589 du Conseil, toute aide illégale peut faire l’objet d’une récupération auprès de son bénéficiaire.

(1) Résolution du gouvernement lituanien du 18 juillet 2012 (résolution 916).

(2) Le 13 juillet 2016, la confédération lituanienne des industriels s’est retirée de la plainte. AB Achema, AB ORLEN Lietuva et AB LIFOSA ont maintenu leur intérêt à poursuivre la plainte.

(3) JO C 261 du 2.8.2019, p. 5.

TEXT OF LETTER

Having examined the information supplied by your authorities on the measure referred to above, the Commission has decided to extend the scope of the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union («TFEU») which it had initiated on 3 June 2019 in relation to the measure referred to above.

1. PROCEDURE

(1)

By letter dated 3 June 2019, the Commission informed Lithuania that it had decided to initiate the procedure under Article 108(2) TFEU in relation to the measure (the «Opening Decision»).

(2)

By letter dated 11 July 2019, Lithuania sent its comments on the Opening Decision to the Commission.

(3)

On 2 August 2019, the Commission published the Opening Decision in the Official Journal of the European Union (1) . The Commission invited interested parties to submit their comments.

(4)

The Commission received comments from interested parties. It forwarded them to Lithuania, which was given the opportunity to react to them. By letter dated 27 November 2019, Lithuania sent its comments to the Commission.

(5)

On 1 June 2022 and 27 June 2022, the Commission provided a list of additional questions to Lithuania. On 29 June 2022, Lithuania responded to those questions.

(6)

On 12 May 2025, the Commission provided a list of additional questions to Lithuania. On 30 July 2025, Lithuania responded to those questions.

(7)

The case was discussed in meetings between Lithuania and the Commission services on 10 March 2022, 11 April 2022, 22 June 2022, 26 July 2022, 15 February 2023, and 6 June 2025.

(8)

By letter dated 3 December 2025, Lithuania agreed to exceptionally waive its rights deriving from Article 342 TFEU in conjunction with Article 3 of Regulation 1/1958 (2) and to have the present decision adopted and notified in English.

2. DESCRIPTION OF THE FACTS RELEVANT FOR THE EXTENSION OF THE FORMAL INVESTIGATION PROCEDURE (3)

2.1. The Opening Decision of 3 June 2019

(9)

The Opening Decision was based on the information at the Commission’s disposal at the moment of its adoption. Based on that information, the Commission preliminarily concluded that the measure constitutes State aid (4) and raised doubts about the compatibility of the measure with the internal market under Articles 106(2) and 107(3)(c) TFEU (5).

(10)

As regards the existence of aid (see section 3.1 of the Opening Decision), the Commission considered, on a preliminary basis, that the cumulative criteria for the existence of State aid under Article 107(1) TFEU are likely to be met as the measure: (i) was financed through a levy paid by all electricity consumers to a fund that was established by, and remained under the control of, the State and was imputable to the Lithuanian State; (ii) granted a selective advantage to one particular company, Ignitis Gamyba, that the latter would not have been able to obtain under normal market conditions; and (iii) had the potential to distort competition and was liable to affect trade between Member States as the Lithuanian electricity market was open to competition with electricity producers competing to sell their electricity to suppliers on that market and the Lithuanian electricity system was connected to the systems of other Member States such as Latvia, Sweden and Poland.

(11)

As regards the compatibility of the measure (section 3.3 of the Opening Decision), the Commission first assessed the measure under Article 106(2) TFEU and then assessed it directly under Article 107(3)(c) TFEU for the period from 1 January 2013 to 31 December 2014, as there were no specific guidelines for assessing the compatibility of generation adequacy measures during that period, and under the Guidelines on State and for environmental protection and energy 2014-2020 («EEAG») (6) for the period from 1 January 2015 until 31 December 2018. The Commission raised doubts about the compatibility of the measure with the internal market under those legal bases. Those doubts are summarised below.

2.1.1. Assessment under Article 106(2) TFEU

(12)

First, the Commission doubted that the services at issue qualified as a genuine service of general economic interest («SGEI») under Article 106(2) TFEU and in line with the requirements established in the 2009 Electricity Directive (7). In particular, the Commission doubted that the measure:

a)	addressed a security of supply issue that could not be addressed by undertakings operating under normal market conditions (8);

b)	was transparent and non-discriminatory, given that it was limited to a single undertaking without Lithuania having demonstrated that it had checked and excluded other available technologies and/or providers (9); and

c)	was proportionate, given that it appeared to have significant distortive effects on market functioning and price formation (10).

(13)

In the light of the above, the Commission raised doubts about the qualification of the services at issue as genuine SGEI compatible with Article 106(2) TFEU without assessing if the other criteria set out in the European Union framework for State aid in the form of public service compensation (the «SGEI Framework») were met (11).

2.1.2. Assessment under Article 107(3)(c) TFEU and EEAG

(14)

Second, the Commission doubted that the measure was compatible with the internal market on the basis of Article 107(3)(c) TFEU and EEAG. In particular, the Commission doubted that the measure:

a)	was necessary for the period 2015-2018, in view of the absence of any analysis justifying the need to achieve a reliability standard of zero hours LOLE, and in view of the lack of a detailed adequacy assessment establishing the size of the problem (12);

b)	was appropriate for the period 2013-2018, in view of its restrictive eligibility requirements and the way in which the design seems to have distorted market price formation and undermined potential market investment that may have contributed to security of supply (13);

c)	was proportionate for the period 2013-2018, in view of its restrictive eligibility requirements, the lack of a competitive process to establish the aid level, and the lack of calculations justifying the proportionality of the aid level (14); and

sufficiently avoided negative impacts on competition and trade for the period 2013-2018, in view of its restrictive eligibility requirements benefitting only one plant owned by the incumbent generation company, and the way in which the design seems to have distorted market price formation and undermined market investment (15).

(15)

In the light of the above, the Commission decided to initiate the formal investigation pursuant to Article 108(2) TFEU and invited Lithuania and interested parties to submit comments and to provide all such information as may help assess the measure.

2.2. Grounds for the extension of the formal investigation procedure

(16)

The Commission has decided to extend the formal investigation to enable a comprehensive assessment of both the existence of aid, taking into account all the conditions relevant for the existence of aid under the so-called Altmark test, and the potential compatibility of the measure with the internal market under Article 106(2) TFEU, taking into account the criteria set out in the SGEI Framework. The purpose of this extension is to cover the relevant arguments advanced by Lithuania and to provide the Commission’s preliminary views on those arguments, in order to allow interested parties to comment on them.

(17)

This extension is without prejudice to the doubts expressed in the Opening Decision concerning the compatibility of the measure, which remain in place.

(18)

Lithuania’s submissions regarding the Altmark conditions and the criteria set out in the SGEI Framework are summarised below.

2.2.1. Economic advantage – Altmark conditions

(19)

In their response to the Opening Decision, the complainants argue that the Commission should have assessed the measure also under the so-called Altmark criteria.

(20)

Lithuania submits that the measure complies with the conditions established in the Altmark Judgment (16) and therefore does not confer an economic advantage, nor qualifies as State aid within the meaning of Article 107(1) TFEU.

(21)

As regards the 4th Altmark criterion (17), Lithuania argues that the measure ensured the provision of the services at issue at the least cost to the community. In this respect, Lithuania first compares the profitability ratios of the services at issue with those of other activities in the energy sector, such as electricity transmission and distribution.

Table 1

Comparison of profitability ratios for the provision of the production service from 2013 to 2015 with ratios of other activities in the energy sector in Lithuania (18)

Source:

Lithuanian authorities

Table 2

Comparison of profitability ratios for the provision of the reserves service from 2016 to 2018 with ratios of other activities in the energy sector in Lithuania (19)

Source:

Lithuanian authorities

(22)

Lithuania then compares the WACC ratios applicable to Ignitis Gamyba from 2016 to 2018 with those applicable in other Member States, which allegedly indicates that the WACC applicable to Ignitis Gamyba was similar or lower to that applicable in other Member States for electricity generation. According to Lithuania, that comparison shows that the rate of return paid to the beneficiary reflected market conditions, meaning that the beneficiary was paid a reasonable profit under the measure.

Table 3

Comparison of WACC ratios applicable to Ignitis Gamyba from 2016 to 2018 with WACC ratios in other Member States

Source:

Lithuanian authorities

(23)

Finally, Lithuania compares the prices paid under the measure with those paid under different capacity mechanisms (including some strategic reserves) in other Member States, as well as with the prices paid for the provision of tertiary active power reserve services in Lithuania. Lithuania argues that the cost structure of the services used in those comparisons is similar to that of the services at issue, while the entities providing those services are efficient and well run.

Figure 1

Comparison of compensation paid for the provision of the reserves service from 2016 to 2018 with prices of different capacity mechanisms in other Member States

Source:

Lithuanian authorities

Table 4

Comparison of compensation paid for the provision of the reserves service from 2016 to 2018 with prices of tertiary active power reserve service in Lithuania

Source:

Lithuanian authorities

2.2.2. SGEI Framework requirements

2.2.2.1. Genuine service of general economic interest as referred to in Article 106 TFEU

(24)

In their second complaint to the Commission in 2017, the complainants questioned the character of the services at issue as genuine SGEIs and urged the Commission to assess whether the SGEI created by the Lithuanian authorities have been correctly identified.

(25)

In their response to the Opening Decision, the complainants observe that the services at issue did not qualify as genuine SGEIs as they were in breach of Article 3(2) of the Electricity Directive. Specifically, the complainants alleged that the services did not qualify as SGEI by virtue of the existence of discrimination between (1) the incumbent and other potential providers of those services, and (2) the various technologies that could be used to provide those services. According to the complainants, by limiting the services at issue to the energy incumbent, without demonstrating that Lithuania checked and excluded the existence of other available technologies and/or of alternative providers, the measure at issue was discriminatory.

(26)

Lithuania maintains that the services at issue constitute genuine SGEIs compatible with Article 106(2) TFEU that meet the requirements established in the 2009 Electricity Directive.

(27)

In particular, Lithuania argues that the services at issue pursued a legitimate goal, explicitly provided in Article 3(2) of the 2009 Electricity Directive, namely security of supply and that it committed no manifest error in defining those services, considering the exceptional circumstances that Lithuania faced, such as: (i) the closure of the Ignalina nuclear power plant, (ii) the interruptible work of interconnections with Sweden (NordBalt) and Poland (LitPol Link), and (iii) the process of integration with the electricity network of Continental Europe.

(28)

In this context, Lithuania states that the content and the technical requirements that were essential for the provision of the services at issue were the following:

Under the so-called «production service» (service 7.3), the beneficiary had to generate a certain pre-determined quota of electricity and received compensation for each megawatt hour (MWh) generated within that quota. In order to provide that service, the beneficiary had to be able to: (i) adjust output power +/– 25 MW within 15 minutes; and (ii) operate throughout the year without being impacted by maintenance and/or repair works.

Under the so-called «reserves service» (service 7.4), the beneficiary had to make available certain pre-determined electricity generation capacity (in megawatts – MW) and make offers on the market to generate electricity at a price equivalent to avoidable running costs of the plant so that it would generate only when the market price matched its running costs. The beneficiary received compensation for the availability of its capacity regardless of whether it actually generated electricity. To provide that service, the beneficiary had to have power units connected to the 330 kV network.

(29)

Lithuania maintains that the measure was transparent as the services at issue were clearly defined in the Lithuanian Electricity Law, the relevant Lithuanian Government resolutions as well as two contracts concluded between Ignitis Gamyba and the Lithuanian TSO for the years 2014 and 2015.

(30)

Moreover, Lithuania explains that the measure was non-discriminatory as other technologies and/or providers could not ensure the required level of security of supply. According to Lithuania, it was not possible to open the measure to a competitive process involving other potential service providers for several technical reasons, including the need to ensure 330 kV grid voltage regulation and the dynamic stability of the electricity system in the event of a three-phase shortage, as well as the need to provide adequate «black start services» and to address the possibility of overloads at BRELL system points.

(31)

Lithuania states that the need to provide such ancillary services and safeguards against different security of supply problems could be addressed only by Ignitis Gamyba, while other market participants (including complainants and potential new entrants) were incapable of providing all or part of the required services (20). In particular, Ignitis Gamyba was the only electricity producer in Lithuania that fully satisfied the +/– 25 MW power adjustment requirement (21), as well as the only synchronous generator connected to the Lithuanian 330 kV network (22).

(32)

In that regard, Lithuania confirms that the production service was activated at least 135 days between 15 April and 15 October each year from 2013 to 2015 to ensure +/– 25 MW spinning reserves for system balancing purposes, while electricity generated under the reserves service was sold in a total of 1 724 hours in 2016 mostly due to failures of the interconnector between Sweden and Lithuania. In the latter case, activating the reserves service enabled Lithuania to cover the electricity shortage in the market and eliminate unreasonable price spikes caused by an imbalance of demand and supply.

(33)

Moreover, Lithuania submits that the services at issue were different from tertiary active power reserve services provided in Lithuania in terms of their objectives, reaction times and operation regimes, connection to the 330 kV network as well as participation in the market. More specifically:

in terms of objectives, tertiary active power reserve services aimed to resolve operational issues in the electricity network (grid stability and reliability in the short-term), while the reserves service was designed to meet the broader objective of ensuring the security of electricity supply and was hence acquired on top of tertiary active power reserve services;

b)	in terms of reaction times and operation regimes, providers of tertiary power reserve services were obliged to activate those services within 12 hours, while providers of the production service were obliged to adjust output power +/– 25 MW within 15 minutes;

in terms of connection to the 330 kV network, not all types of tertiary active power reserve services required the provider to be connected to that network (for example, providers of reserve services for secondary emergency power reserve restoration could also be connected to the 110 kV network); and

d)	in terms of participation in the market, the provider of the reserves service could participate in the power exchange selling electricity in the market, while units providing tertiary power reserve services had to be taken out of the market and could be activated only upon instruction of the TSO.

(34)

As regards the alleged findings of the Lithuanian Competition Council of 4 April 2017 that the entrustment of the services at issue only to Ignitis Gamyba discriminated against other entities, that Council recommended: (i) defining the content and the technical requirements for the services at issue; and (ii) conducting tenders to select the providers of those services (23).

(35)

Lithuania submits that the Competition Council terminated that investigation for procedural reasons (24), while its recommendations were based solely on assumptions included in the initial complaint that other undertakings could also provide the services at issue. In other words, Lithuania claims that the Competition Council did not conduct its own technical analysis to verify the content of services at issue or ascertain the accuracy of the statements submitted by the complainants (25).

(36)

Finally, Lithuania explains that it had given proper consideration to the public service needs supported by the measure as stakeholders were able to comment on those needs during the preparation of the ten-year plan by the TSO that is drafted annually, published for public discussion on the website of the National Regulatory Authority («NRA») and serves as the technical foundation for the TSO’s report to the Ministry of Energy concerning the need for SGEI to ensure security supply, as well as prior to the adoption of the Government resolutions approving the list of SGEI and entrusting those services to the entities concerned (26).

2.2.2.2. Need for an entrustment act specifying the PSOs and the methods of calculating compensation

(37)

Lithuania submits that the services at issue were entrusted to Ignitis Gamyba by means of several acts containing all information required under point 16 of the SGEI Framework.

(38)

As regards the content of the public service obligations, Lithuania submits that the Government resolutions listed in recital 12 of the Opening Decision specified the two types of services entrusted to Ignitis Gamyba (i.e., the production and reserves services) as well as the quantities of electricity/capacity required to be produced/reserved under those services.

(39)

Moreover, as regards the technical requirements of the production service (see recital (28)a), Lithuania indicates that those requirements were laid down in the contracts signed between the TSO and the beneficiary for years 2014 and 2015. Lithuania acknowledges that there was no such contract for the year 2013, but argues that certain underlying principles, such as generating electricity only during the warm season, were the same as in 2014-2015, while the monthly quantities of electricity to be produced in 2013 were anticipated in exchanges that had taken place between the TSO and the beneficiary in the first half of that year.

(40)

Furthermore, as regards the technical requirements of the reserves service (see recital (28)b), Lithuania acknowledges that no contracts were concluded between the TSO and the beneficiary for the provision of that service from 2016 to 2018. That said, Lithuania indicates that that service was provided in accordance with the Electricity Law and the Government resolutions listed in recital 12 of the Opening Decision. According to Lithuania, those acts established comprehensively the conditions for the provision of the service and obliged the beneficiary to provide that service, thus that the conclusion of contracts was not necessary.

(41)

As regards the duration of the public service obligations, Lithuania submits that the Government resolutions listed in recital 12 of the Opening Decision indicated the year for which services at issue had to be provided. Moreover, Resolution 916 clarified that such services are approved for each calendar year.

(42)

As regards the territory concerned, Lithuania submits that the Government resolutions listed in recital 12 of the Opening Decision did not refer to the territory for the provision of services at issue. However, considering the nature of the entrustment, Lithuania considers it evident that such an entrustment concerned the security of supply of the entire Lithuanian electricity network.

(43)

As regards the undertaking concerned, Lithuania submits that the Government resolutions listed in recital 12 of the Opening Decision explicitly entrusted the services at issue to Ignitis Gamyba.

(44)

As regards the nature of any exclusive or special rights assigned to the undertaking by the granting authority, Lithuania submits that the nature of the services at issue was clearly defined in the Government resolutions listed in recital 12 of the Opening Decision and that Ignitis Gamyba was the only electricity producer capable of meeting all technical parameters required by the TSO.

(45)

As regards the description of the compensation mechanism and the parameters for calculating, monitoring and reviewing the compensation, Lithuania submits that the principles for the calculation of compensation for the provision of the services at issue were established in legal acts adopted by various authorities. Although the Electricity Law and Resolution 916 established general principles for the calculation of compensation for Ignitis Gamyba, detailed calculation rules were established by the NRA by means of the following acts:

a)	NRA methodology O3-229 approved on 14 September 2012 for the 2013-2018 period concerning the calculation of the prices of the services at issue.

b)	NRA methodology O3-279 approved on 28 September 2012 for the 2013-2018 period concerning the calculation of the annual budget for all SGEI in the electricity sector and of the levy paid by electricity consumers.

c)	NRA methodology O3-510 approved on 22 September 2015 for the period from 2016 until 2018 concerning the calculation of the reasonable return on investment for undertakings engaged in the provision of SGEI (27).

d)	NRA Resolution O3-112 approved on 29 April 2014 for the period from 2014 until 2018 concerning the separation of accounts of undertakings engaged in the provision of SGEI, rules on cost allocation and auditing of accounts (28).

(46)

As regards the arrangements for avoiding and recovering any overcompensation, Lithuania submits that control of overcompensation was ensured via ex post controls of actual costs incurred for providing the services at issue as well as profitability controls.

As regards the former (ex post controls), pursuant to point 27 of the NRA methodology O3-229, the NRA determined the price paid for the services at issue for the following year. During that process (29), Lithuania submits that the NRA reconciled the difference between actual and projected costs and profitability (30).

As regards the latter (profitability controls), until 13 December 2014, NRA Methodology O3-229 contained the basic principles for determining the level of reasonable profit, while details were left to the discretion of NRA, which relied on external benchmarks, such as return on Government bonds and benchmarks published by Damodaran. As from that date, the relevant methodology was amended to indicate specifically which profitability benchmarks should be used, while, as from 9 September 2015, NRA methodology O3-510 established a methodology for calculating reasonable return in all sectors regulated by the NRA, including the electricity sector (31).

c)	Finally, Lithuania submits that, to ensure compatibility with all rules controlling the level of SGEI prices, NRA Resolution O3-112 established an obligation to perform independent auditing of annual reports submitted by the SGEI provider to the NRA.

2.2.2.3. Duration of the period of entrustment

(47)

Lithuania submits that the services at issue were entrusted annually for a one-year period. According to Lithuania, such an entrustment period was appropriate as it reflected evolving market conditions and the need for certain electricity quotas during that period, while it did not result in foreclosing the electricity market. The relevant market conditions were evaluated annually taking into account the applicable TSO requirements, which ensured system adequacy and established the required quantities of capacities that were necessary for the reliability of the system and ensuring the reserves.

2.2.2.4. Compliance with Directive 2006/111/EC

(48)

Lithuania submits that Article 74 of the Electricity Law provided that accounts related to the provision of an SGEI should be kept separate in accordance with the account separation rules approved by the NRA. Detailed rules for the separation of accounts, including the allocation of costs between different services, were established in NRA methodology O3-229 and NRA Resolution 03-112, which was explicitly dedicated to regulating the separation of accounts. Independent auditors confirmed that the beneficiary complied with such account separation rules on an annual basis. In any event, such an account separation was in line with the principles set out in point 31 of the SGEI Framework (see section 2.2.2.6).

2.2.2.5. Compliance with Union public procurement rules

(49)

As regards compliance with Union public procurement rules, Lithuania maintains that the beneficiary did not enter into a «contract» in the sense of the applicable public procurement rules. According to Lithuania, the beneficiary was awarded the services at issue based on legislation adopted unilaterally by the Lithuanian government. Lithuania maintains that, in such cases, the rights and obligations of each of the parties are determined by law, resulting in the absence of a concurrence of wills (i.e., a contract) between the parties. Lithuania thus argues that the Public Procurement Directives do not apply in the present case.

(50)

Moreover, Lithuania argues that there were no payments to the beneficiary for the provision of the services at issue from the budget of the contracting authorities, just a reimbursement of the costs for providing the services at issue, that was paid for by consumers through a fund. As such, there was no «pecuniary interest» in the sense of Article 2(5) of Directive 2014/24/EU.

(51)

Lithuania also argues that an alleged failure to follow the requirements of Directive 2014/24/EU does not necessarily mean that it failed to comply with public procurement rules and/or awarded the SGEIs inappropriately, as point 19 of SGEI Framework imposes only a general requirement to comply with «Union rules in the area of public procurement».

(52)

Finally, Lithuania maintains that, regardless of the applicability of Directive 2014/24/EU, the outcome in the present case would be the same, namely that the beneficiary was the only entity technically able to provide the services at issue, and – as the State-controlled undertaking – the only one able to provide a service in the interest of national security, which would be eligible for direct award under Article 32(2)(b) of that Directive (32).

2.2.2.6. Absence of discriminatory compensation

(53)

Lithuania submits that the criterion set out in point 20 of the SGEI Framework is not applicable in the present case, as the services at issue were entrusted to a single undertaking, Ignitis Gamyba.

2.2.2.7. Amount of compensation

(54)

As regards the choice of methodology for the calculation of the net cost necessary for the discharge of the public service obligations at issue, Lithuania submits that that calculation took place using the cost allocation methodology in accordance with NRA Methodology 229.

(55)

According to Lithuania, the amount of compensation that Ignitis Gamyba received for the services at issue would not have been different if the net cost had been calculated using the net avoided cost methodology. That is because, in the absence of those public service obligations, Ignitis Gamyba (considering only its commercial interests) would have dismantled its old power-generating units. The net cost in the counterfactual scenario would have therefore been zero.

(56)

Moreover, Lithuania submits that the NRA chose the cost allocation methodology as it ensured that costs are assigned based on what service causes or benefits from them, in line with regulatory principles of fairness and equity, and is typically more transparent and auditable than the net avoided costs methodology, which often relies on complex models and assumptions about future avoided costs. The cost allocation methodology was also deemed well-suited to tackle cases of multi-purpose assets as well as enable long-term infrastructure planning.

(57)

As regards the attribution of costs common to both the SGEI and other activities, Lithuania submits that, in addition to the services at issue, Ignitis Gamyba provided tertiary power reserve and heat production services. According to Lithuania, Ignitis Gamyba kept separate accounts for each of those services, as required by NRA Resolutions O3-229 and O3-112.

(58)

The NRA determined which costs should be attributed to any particular service or to several/all services. In case of services involving common costs or assets, the NRA also decided what portions of such costs should be allocated to each service (allocation keys), including what portion of the costs should be allocated to heat production.

(59)

Moreover, Lithuania submits that the common costs incurred in the production of electricity were calculated by excluding non-regulatory costs and heat production costs. Until 2017, such costs were shared equally among all electricity production units that were operated in the respective year. From 2018 onwards, those costs were distributed proportionally based on the maximum output (installed capacity) of power units.

(60)

On the other hand, indirect costs, such as administrative expenses, were allocated across all of the primary activities of Ignitis Gamyba according to cost carriers approved by the NRA. Those cost carriers were required to be coordinated with the NRA in advance and meet the criteria set forth in NRA Resolution O3-112. The main carrier for distributing administrative expenses was the relative share of direct expenses of a specific asset compared to the total direct costs of all company activities. The distribution of costs, assets and revenues was subject to independent regulatory audit on a yearly basis, while the rules for that distribution of costs had to be coordinated with the NRA in advance (33).

(61)

As regards the reasonable profit, Lithuania submits that the control of profitability / rate of return was ensured by the NRA. NRA Resolution 03-229 indicated that the compensation provided for the services at issue should include costs related to return on investments, which must be «reasonable». The same resolution established principles and formulas stipulating how such reasonable return on investments must be included in the compensation. Under that methodology, the rate of return on investments was determined based on the «weighted average costs of capital» (WACC) methodology applicable to regulated services in the energy sector. Lithuania also submits that the profitability of the services at issue was only slightly higher than that of activities of other market participants in the energy sector, as well as within the range of the profitability of applied by NRAs in other Member States.

(62)

As regards efficiency incentives, Lithuania submits that the Lithuanian regulatory framework provided that SGEI compensation should include only efficient (reasonable / necessary) costs for the provision of SGEI, thus obliging the SGEI provider to cover the difference between the actual costs and efficient costs from its profit and/or other sources of income.

(63)

In particular, Lithuania submits that Article 4(5) of the Electricity Law established that regulation in the electricity sector must be based on provision of services to consumers on the basis of «economically reasonable price» and that entrustment of SGEI in that sector must be based on the criteria of «economical soundness, least cost and impact on electricity price paid by electricity consumers».

(64)

In that context, the NRA, which was appointed to approve the methodology for the calculation of SGEI compensation as well as the specific level of that compensation, ensured that SGEI prices would be «economically reasonable» and lead to the «least cost to electricity consumers» in the following ways (34).

(65)

First, in approving the methodology used for the calculation of the SGEI costs, point 20 of NRA Methodology No O3-229 stipulated an extensive list of expenses that the NRA shall not deem reasonable and shall hence not include in that compensation even if the SGEI provider incurred those costs (35).

(66)

Second, in approving the specific level of the SGEI compensation, the NRA controlled the efficiency of costs both ex ante and ex post. As regards ex ante controls, the process for the determination of the SGEI compensation always started from the submission of projected costs by the SGEI provider. The NRA then considered whether such projected costs were reasonable and made its own calculations of costs that were actually needed to perform the services at issue. As regards ex post controls, for the approval of the SGEI compensation for the upcoming year, the provider was required to provide figures that would reveal the difference between the projected and actual costs incurred. In deciding on the adjustment of the SGEI compensation by the difference between projected and actual costs, the NRA also considered whether the actual costs were effective. In other words, the NRA included in the adjustment not the mathematical difference between the actual and projected costs, but difference between the projected and effective actual costs.

(67)

Lithuania acknowledges that the calculation of SGEI compensation did not have specific efficiency targets established before provision of service. Nevertheless, Lithuania argues that the provider was aware that the compensation shall include only such costs, which were deemed efficient by the NRA. Hence, any inefficiency would automatically result in a de facto penalty on the provider, namely an obligation to cover the difference between the actual costs and costs deemed reasonable by the NRA from its profit or any other sources (36).

(68)

As regards the avoidance of overcompensation, Lithuania submits that control of overcompensation was ensured via ex post controls of actual costs incurred for providing the services at issue as well as profitability controls (see recital (46)).

2.2.2.8. Additional requirements which may be necessary to ensure that the development of trade is not affected to an extent contrary to the interests of the Union

(69)

Lithuania submits that the measure complies with the criteria set out in sections 2.1 to 2.8 of the SGEI Framework, which is sufficient to ensure that the development of trade is not affected to an extent contrary to the interests of the Union, so that no additional measures are necessary.

(70)

In any event, Lithuania submits that the measure did not unduly distort competition or appreciably affected trade between Member States in the light of the longstanding isolation of Lithuania’s energy markets and the objective of the measure to ensure the security of supply and the integrity of Lithuania’s electricity system, an objective widely recognised and endorsed in Union legislation.

2.2.2.9. Transparency

(71)

Lithuania submits that it has published on the internet or by other appropriate means all information required under point 60 of the SGEI Framework.

(72)

As regards the results of the public consultation or other appropriate instruments referred to in point 14 of the SGEI Framework, Lithuania submits that the ten-year plans prepared by the TSO on an annual basis are available on the TSO’s website, while all feedback received during the adoption of the Government resolutions listed in recital 12 of the Opening Decision were published on the information system of the Lithuanian Parliament. In cases where feedback received from stakeholders was more extensive, any reports detailing the reasons for either accepting or rejecting that feedback were also published on the Lithuanian Parliament’s website.

(73)

As regards the content and duration of the public service obligations, Lithuania submits that the relevant information was published through the publication of Resolution 916, which stipulated that the TSO should approve the technical requirements for the provision of services at issue and make them public on its website and that the entrustment of those services was made for one year.

(74)

As regards the undertaking and the territory concerned, Lithuania submits that the Government resolutions listed in recital 12 of the Opening Decision entrusted the services at issue to Ignitis Gamyba. Although those resolutions did not refer to the territory for the provision of those services, it was evident that the entrustment concerned the security of supply of the entire Lithuanian electricity network.

(75)

As regards the amounts of aid granted to the undertaking on a yearly basis, Lithuania submits that the relevant information was published on the website of the NRA on an annual basis.

3. ASSESSMENT OF THE AID (37)

3.1. Existence of aid within the meaning of Article 107(1) TFEU

3.1.1. Economic advantage

(76)

As explained in the Opening Decision (38), the measure granted a selective advantage to one particular company, Ignitis Gamyba, that the latter would not have been able to obtain under normal market conditions.

(77)

However, compensation granted to an undertaking for the provision of SGEIs does not constitute an economic advantage if certain conditions, strictly defined in the Altmark judgment, are met (39). Those four cumulative criteria are the following:

a)	the recipient undertaking must actually have public service obligations to discharge, and those obligations must be clearly defined;

b)	the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner;

c)	the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of the public services obligation, taking into account the relevant receipts and a reasonable profit;

where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant a public procurement procedure, which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs, which a typical undertaking, well-run and adequately provided within the same sector would incur, taking into account the receipts and a reasonable profit from discharging the obligations.

(78)

Due to the cumulative nature of the four Altmark criteria, if any of those criteria is not fulfilled, the compensation will be deemed to constitute an advantage in the meaning of Article 107(1) TFEU.

(79)

In the present case, Ignitis Gamyba was not chosen pursuant to a public procurement procedure that would allow for the selection of a tenderer capable of providing the services at issue at the least cost to the community. Consequently, in order for the fourth Altmark criterion to be fulfilled, it has to be further verified whether the compensation under the measure was determined based on an analysis of the costs which a typical undertaking, well run and adequately provided with means to meet the public service obligations, would have incurred, taking into account the relevant receipts and a reasonable profit from discharging the obligations.

(80)

In that regard, point 75 of the SGEI Communication (40) notes that «[i]f the Member State can show that the cost structure of the undertaking entrusted with the operation of the SGEI corresponds to the average cost structure of efficient and comparable undertakings in the sector under consideration, the amount of compensation that will allow the undertaking to cover its costs, including a reasonable profit, is deemed to comply with the fourth Altmark criterion».

(81)

Point 73 of the SGEI Communication further notes that «the analysis and comparison of the cost structures must take into account the size of the undertaking in question and the fact that in certain sectors undertakings with very different cost structures may exist side by side».

(82)

It is therefore for the Member State to demonstrate that the cost structure of the undertaking entrusted with the operation of an alleged SGEI corresponds to the average cost structure of efficient and comparable undertakings in the sector under consideration.

(83)

In the present case, the comparisons provided by Lithuania (recitals (21) to (23)) do not demonstrate that the level of compensation was determined based on an analysis of the costs of a typical undertaking, well-run and adequately provided within the same sector.

(84)

First, as regards the comparisons of the profitability ratios of the services at issue from 2013 to 2018 with those of other activities in the energy sector in Lithuania as well as of the WACC ratios applicable to Ignitis Gamyba from 2016 to 2018 with those applicable in other Member States (recitals (21) to (22)), the Commission notes that those comparisons do not concern the cost structure of the undertakings performing those activities. Moreover, contrary to what Lithuania submits, the WACC ratios applicable to Ignitis Gamyba were higher than those applicable in Estonia from 2016 to 2018 as well as in Hungary in 2018.

(85)

Second, as regards the comparisons of the prices paid under the measure with those paid under different capacity mechanisms in other Member States, as well as with the prices paid for the provision of tertiary active power reserve services in Lithuania, the Commission notes that those comparisons cover both strategic reserves (e.g., in Belgium and Finland) and market wide capacity mechanisms (e.g., in the United Kingdom, Ireland and Poland). Although those mechanisms differ in their design and scope, Lithuania has not explained why the costs of a market wide capacity mechanism are comparable to those of a strategic reserve. The Commission also observes that, while the costs of the Lithuanian strategic reserve were lower than the costs of the Belgian strategic reserve, they were also significantly higher than the costs of the Finnish strategic reserve. The Commission further notes that Lithuania itself has submitted that the services at issue were different from tertiary active power reserve services provided in Lithuania in terms of their objectives, reaction times and operation regimes, connection to the 330 kV network as well as participation in the market (recital (33)).

(86)

Third, and in any event, with respect to all the comparisons indicated above, Lithuania has not demonstrated that the different services and mechanisms used in those comparisons are comparable to those compensated by the measure, nor that the undertakings used in those comparisons are typical, well-run and efficient or comparable to Ignitis Gamyba, as the provider of the services at issue.

(87)

In the light of the above, since one of the four cumulative Altmark conditions does not appear to have been fulfilled, the Commission preliminarily concludes that the measure appears to have conferred an advantage to Ignitis Gamyba, which can be qualified as an economic advantage granted to an undertaking within the meaning of Article 107(1) TFEU.

3.2. Compatibility assessment

3.2.1. Service of general economic interest

(88)

In accordance with Article 106(2) TFEU, the Commission may declare compensation for SGEI compatible with the internal market, provided that certain conditions are met. The Commission has laid down the conditions according to which it applies Article 106(2) TFEU in a series of instruments: the SGEI Framework and the SGEI Decision.

(89)

As the annual compensation for the services at issue exceeded the threshold of EUR 15 million per year (recital 15 of the Opening Decision), that compensation falls outside the scope of the SGEI Decision (41).

(90)

State aid falling outside the scope of the SGEI Decision may be declared compatible under Article 106(2) TFEU if it is necessary to the operation of the SGEI concerned and does not affect the development of trade to such an extent as to be contrary to the interests of the Union. The SGEI Framework sets out the guidelines for assessing the compatibility of SGEI compensation.

(91)

Under the SGEI Framework, public service compensation can be compatible under Article 106(2) TFEU if the following conditions are met:

3.2.2. Genuine service of general economic interest as referred to in Article 106 TFEU

Genuine service of general economic interest

(92)

Point 12 of the SGEI Framework provides that the aid granted must relate to a genuine service of general economic interest within the meaning of Article 106(2) TFEU. Point 13 specifies that Member States may not attach specific public service obligations to services which are already provided or can be provided satisfactorily and under conditions (price, objective quality characteristics, continuity and access to the service) compatible with the general interest, as defined by the State, by undertakings operating under normal market conditions.

(93)

The Commission recalls that, according to point 46 of the SGEI Communication, Member States have a wide discretion in defining a service of general economic interest. The Commission's competence in this respect is limited to checking whether the Member State has made a manifest error when defining the services as an SGEI (42). Point 56 of the SGEI Framework confirms Member States’ wide margin of discretion to define SGEI.

(94)

In that regard, the Union Courts have ruled that there are certain minimum criteria common to every SGEI and that the inability of a Member State to demonstrate that a particular service fulfils those criteria constitutes a manifest error in defining this mission as an SGEI (43). According to the Union Courts, those criteria are the presence of an act of the public authority entrusting the operators in question with an SGEI and the universal and compulsory nature of that service (44).

(95)

The Commission has further explained in the SGEI Framework that it considers it inappropriate to attach specific public service obligations to an activity which is already provided or can be provided for satisfactorily and under conditions, such as price, objective quality characteristics, continuity and access to the service, consistent with the public interest, as defined by the State, by undertakings operating under normal market conditions. The Commission's assessment in this regard is also limited to checking that the Member State has not made a manifest error.

(96)

In the present case, Lithuania submits that the services at issue qualify as genuine SGEI and are in line with the relevant requirements of the 2009 Electricity Directive (see recitals (24) and (27)).

(97)

On that point, Article 3(2) of the 2009 Electricity Directive provides that Member States may impose on undertakings operating in the electricity sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, energy from renewable sources and climate protection.

(98)

In that regard, considering the wide margin of discretion in defining a given service as an SGEI that Member States enjoy, the Commission prima facie considers that, in defining the services at issue, Lithuania may have exercised its discretion without committing a manifest error of assessment, in particular in the light of the objectives pursued by those services, which relate to those set out in Article 3(2) of the 2009 Electricity Directive.

(99)

On the other hand, as regards the specific requirements set out in Article 3(2) of the 2009 Electricity Directive and the relevant case law (i.e., transparency, non-discrimination, proportionality), the Commission refers to the doubts expressed in recitals 47 to 56 of the Opening Decision, which remain in place.

(100)

At this stage, considering the information submitted by Lithuania thus far, the Commission continues to doubt that the measure complies with those requirements. In particular:

As regards the transparency requirement, the Commission notes that the technical requirements for the provision of the services at issue described in recital (28) do not appear to have been sufficiently laid down in the applicable legal framework over the entire 2013-2018 period, save for two contracts between the TSO and the beneficiary for 2014 and 2015 (for more details, see recitals (112) to (114)).

As regards the non-discrimination requirement, the Commission notes that, save for a 2014 study by Teisingi energetikos sprendimai, the justifications put forward by Lithuania, as summarised in recitals (30) to (35), appear to postdate the assignment of the services at issue to Ignitis Gamyba and have not been substantiated by reference to any contemporaneous evidence. On the other hand, the 2014 study was completed only in July 2014 after the production service had been assigned for 2013 and 2014, while it appears to focus on the production service, thus not demonstrating that Ignitis Gamyba was the only entity capable of providing the reserves service as well (45). The doubts on this point were apparently shared by the Lithuanian Competition Council (recitals (34) to (35)).

As regards the proportionality requirement, Lithuania has thus far not explained sufficiently why the presence of Ignitis Gamyba on the electricity market was necessary to achieve the objective of general economic interest over the entire 2013-2018 period. For example, Lithuania has not detailed why the production service needed to be activated at least 135 days from 2013 to 2015 to ensure +/– 25 MW spinning reserves for system balancing purposes, nor how exactly the electricity generated under the reserves service was linked to technical failures of the interconnector between Sweden and Lithuania. On the contrary, Lithuania appears to acknowledge that activating the reserves service enabled it to cover the electricity shortage in the market and eliminate unreasonable price spikes caused by imbalance of demand and supply (thus acting more than a temporary, last resort measure to address resource adequacy concerns) (46).

(101)

In the light of the above, the Commission invites views on whether the measure complies with the abovementioned requirements, also taking into account Lithuania’s latest submissions, as summarised in recitals (24) to (33).

Public consultation

(102)

Point 14 of the SGEI Framework requires Member States to show that they have given proper consideration to the public service needs supported by way of a public consultation or other appropriate instruments to take the interests of users and providers into account. This does not apply where it is clear that a new consultation will not bring any significant added value to a recent consultation.

(103)

According to the case law of the Union Courts, it is apparent from the wording of that point that «a public consultation is not mandatory, as such a procedure constitutes only one of the appropriate instruments that the Member State may use in order to give consideration to the needs of the public service supported and to take account of the interests of service users and providers» (47).

(104)

In the present case, Lithuania submits that stakeholders were able to comment on the public service needs supported by the measure during the preparation of the ten-year plan by the TSO that is drafted annually, published for public discussion on the website of the NRA and serves as the technical foundation for the TSO’s report to the Ministry of Energy concerning the need for SGEI to ensure security supply. Moreover, stakeholders were able to comment prior to the adoption of the Government resolutions approving the list of SGEI and entrusting those services to the entities concerned (see recital (72)).

(105)

The Commission however notes the absence of a clear and more detailed definition of content of and the technical requirements for the provision of the services at issue in the applicable legal framework and/or in contracts between the TSO and the beneficiary at least for years 2013 and 2016 to 2018 (see recitals (112) to (114)). As a result, it is not clear, at this stage, whether alternative «appropriate measures» indicated above were specific enough for stakeholders to be able to meaningfully assess and comment on the public service needs supported by the measure.

(106)

Moreover, the Commission notes that, contrary to what Lithuania submits, the ten-year plan prepared by the TSO for year 2013 did not contain a section dedicated on the TSO’s generation capacity adequacy assessment, which might indicate a consideration by the TSO of Lithuania’s generation capacity adequacy needs for that year, while the duration of public consultation prior to the adoption of the Government resolutions approving the list of SGEI and entrusting those services for certain years appears to have been very limited (48).

(107)

In the light of the above, the Commission invites the views of interested parties and Lithuania as to whether the measure complies with the conditions set out in point 14 of the SGEI Framework.

3.2.3. Need for an entrustment act specifying the PSOs and the methods of calculating compensation

(108)

In accordance with point 15 of the SGEI Framework, the provision of an SGEI, within the meaning of Article 106 TFEU, must be entrusted to the undertaking in question by way of one or more official acts.

(109)

In accordance with point 16 of the SGEI Framework, the act or acts must include, in particular: (a) the content and duration of the public service obligations; (b) the undertaking and, where applicable, the territory concerned; (c) the nature of any exclusive or special rights assigned to the undertaking by the granting authority; (d) the description of the compensation mechanism and the parameters for calculating, monitoring and reviewing the compensation; and (e) the arrangements for avoiding and recovering any overcompensation.

(110)

In the present case, Ignitis Gamyba was designated as the provider of the services at issue for the period between 2013 and 2018 by means of the Government resolutions listed in recital 12 of the Opening Decision. Those resolutions specified the duration of the public service obligation and the undertaking concerned (see recitals (38) and (41)). Although the resolutions did not refer to the territory for the provision of services at issue, the Commission may accept that, considering the nature of the entrustment, that entrustment concerned the security of supply of the entire Lithuanian electricity network (see recital (45)).

(111)

Moreover, the compensation mechanism and the methodology used to calculate the compensation as well as the arrangements for avoiding and recovering overcompensation were established in the various legal acts indicated in recitals (45) to (46). No exclusive or special rights linked to activities other than the services at issue appear to have been assigned to Ignitis Gamyba by the granting authority (see recital (44)).

(112)

On the other hand, as regards the content of the public service obligation, the Commission notes that the Government resolutions listed in recital 12 of the Opening Decision specified the nature of the services at issue only in very general terms.

(113)

The technical requirements of the production service (see recital (28)a) were laid down for the first time only in in the contracts signed between the TSO and the beneficiary for 2014 and 2015, while no relevant contract was signed for 2013. For 2013, Lithuania has referred to certain «underlying principles» that were allegedly the same as in 2014-2015 as well as to certain exchanges between the TSO and the beneficiary concerning the quantities of electricity to be produced in 2013. At this stage, the Commission considers that those principles require further substantiation, since the information available is not apt to demonstrate compliance with the relevant requirements of the SGEI Framework.

(114)

The same applies to the technical requirements of the reserves service (see recital (28)b). Since no contracts were concluded between the TSO and the beneficiary for the provision of that service from 2016 to 2018, while the Electricity Law and the Government resolutions listed in recital 12 of the Opening Decision do not appear to mention those requirements, Lithuania would need to provide further evidence demonstrating where those technical requirements were provided for.

(115)

In the light of the above, the Commission invites the views of interested parties and Lithuania as to whether the entrustment of Ignitis Gamyba for 2013 and for the period 2016-2018 is in line with point 16(a) of the SGEI Framework concerning the content of the public service obligations at issue.

3.2.4. Duration of the period of entrustment

(116)

According to point 17 of the SGEI Framework, the period of entrustment should «be justified by reference to objective criteria such as the need to amortise non-transferable fixed-assets [and] should not exceed the period required for the depreciation of the most significant assets required to provide the SGEI».

(117)

In the present case, the services at issue were entrusted annually for a one-year period. According to Lithuania, such an entrustment period was appropriate as it reflected evolving market conditions and the need for certain electricity quotas during that period, while it did not result in foreclosing the electricity market. The relevant market conditions were evaluated annually taking into account the applicable TSO requirements, which ensured system adequacy and established the required quantities of capacities that were necessary for the reliability of the system and ensuring the reserves (see recital (47)).

(118)

Without prejudice to the above explanations by Lithuania, the Commission notes that, according to the consolidated annual report for the year ended 31 December 2024 of the group of companies UAB Ignitis (Ignitis), to which the beneficiary belongs, the depreciation period of the most significant assets exceeds one year (49).

(119)

In the light of the above, the Commission considers, at this stage, that the duration of the entrustment may be sufficiently justified in line with point 17 of the SGEI Framework.

3.2.5. Compliance with Directive 2006/111/EC

(120)

According to point 18 of the SGEI Framework, «aid will be considered compatible with the internal market on the basis of Article 106(2) of the Treaty only where the undertaking complies, where applicable, with Directive 2006/111/EC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings».

(121)

Furthermore, point 44 of the SGEI Framework requires that: «[w]here an undertaking carries out activities falling both inside and outside the scope of the SGEI, the internal accounts must show separately the costs and revenues associated with the SGEI and those of the other services in line with the principles set out in paragraph 31».

(122)

According to point 31 of the SGEI Framework, in such a scenario, «the costs to be taken into consideration may cover all the direct costs necessary to discharge the public service obligations, and appropriate contribution to the indirect costs common to both the SGEI and other activities».

(123)

In the present case, Lithuania submits that Article 74 of the Electricity Law provides that accounts related to the provision of SGEI should be kept separate in accordance with the account separation rules approved by the NRA. Detailed rules for the separation of accounts, including the allocation of costs between different services, were established in NRA methodology O3-229 and NRA Resolution 03-112. Independent auditors confirmed that Ignitis Gamyba complied with those rules on an annual basis (see recital (48)).

(124)

In addition to the services at issue, Ignitis Gamyba provided tertiary power reserve and heat production services. Ignitis Gamyba kept separate accounts for each of those services, as required by NRA Resolutions O3-229 and O3-112. The NRA determined which costs should be attributed to any particular service or to several/all services. In case of services involving common costs or assets, the NRA also decided what portions of such costs should be allocated to each service, including what portion of the costs should be allocated to heat production (see recitals (57) and (58)).

(125)

Moreover, the common costs incurred in the production of electricity were calculated by excluding non-regulatory costs and heat production costs. Until 2017, such costs were shared equally among all electricity production units that were operated in the respective year. From 2018 onwards, those costs were distributed proportionally based on the maximum output (installed capacity) of power units (see recital (59)).

(126)

On the other hand, indirect costs, such as administrative expenses, were allocated across all primary activities of Ignitis Gamyba according to cost carriers approved by the NRA. Those cost carriers were required to be coordinated with the NRA in advance and meet the criteria set forth in NRA Resolution O3-112. The main carrier for distributing administrative expenses was the relative share of direct expenses of a specific asset compared to the total direct costs of all company activities. The distribution of costs, assets and revenues was subject to independent regulatory audit on a yearly basis, while the rules for that distribution of costs had to be coordinated with the NRA in advance (see recital (60)).

(127)

Finally, any revenues from unregulated services such as energy sales on the market (resulting in a positive gross profit) were used by the NRA to reduce the price of regulated services for the upcoming years (see footnote 33).

(128)

The Commission invites the view of interested parties and Lithuania as to whether the absence of a clear and more detailed definition of content, in particular of the technical requirements for the provision of the services at issue in the applicable legal framework and/or in contracts between the TSO and the beneficiary at least for years 2013 and 2016 to 2018 (see recitals (112) to (114)) might have affected the identification of the costs and revenues from the provision of the services at issue and their separation from those of other services. If that were the case, the Commission invites views as to whether the accounting separation was appropriate and in line with Directive 2006/111/EC and point 44 of the SGEI Framework. In particular, the Commission invites views as to how Ignitis Gamyba determined and, subsequently, how the NRA checked that the internal accounts showed separately the costs and revenues associated with the services at issue and those of the other services.

3.2.6. Compliance with Union public procurement rules

(129)

Point 19 of the SGEI Framework requires the responsible authority to entrust the provision of the service in question in compliance with the applicable Union rules in the area of public procurement, including any requirements of transparency, equal treatment and non-discrimination resulting directly from the Treaty and, where applicable, secondary EU legislation.

(130)

In the present case, Lithuania states that the Public Procurement Directives did not apply to the services at issue, as the beneficiary was subject to legal obligations imposed in a binding manner by Lithuania, leading to the absence of a «contract» as defined in the Directives (see recital (49)).

(131)

Lithuania further argues that the Public Procurement Directives did not apply as there was no «pecuniary interest» in the sense of Article 2(5) of Directive 2014/24/EU as there were no payments to the beneficiary for the provision of the services at issue from the budget of the contracting authorities, just a reimbursement of the costs for providing the services at issue (see recital (51)).

(132)

All genuine SGEI impose legal obligations on providers in a binding manner by the State, the costs of which can be appropriately compensated. The Commission therefore has doubts about Lithuania’s interpretation of point 19 of the SGEI Framework on the grounds that it would remove point 19 of its useful legal purpose (effet utile). The services at issue must therefore have been awarded in line with the applicable Union rules in the area of public procurement for them to be considered compatible with the internal market.

(133)

Article 3(3) of the 2004 Utilities Directive (50), and Article 9(2) of the 2014 Utilities Directive (51) state that they apply to the supply of electricity to fixed networks. The services at issue involve the supply of electricity to fixed networks. The EU public procurement rules applicable to the services at issue were therefore the 2004 Utilities Directive (52), and the 2014 Utilities Directive.

(134)

Article 10 of the 2004 Utilities Directive and Article 36(1) of the 2014 Utilities Directive require contracts to be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment.

(135)

Lithuania maintains that the beneficiary – as a State-controlled undertaking – was the only one able to provide a service in the interest of national security (see recital (52)).

(136)

The Commission notes that Article 4 of Lithuania’s 2002 Law on Enterprises and Facilities of Strategic Importance to National Security lists the beneficiary as an enterprise in which the State – directly or through other State-controlled companies – must hold over half of the voting rights (53). The Commission notes that this law does not set out further obligations or duties that are relevant to providing the security of supply services.

(137)

The Commission also notes that being «an enterprise of national strategic importance to national security» was not a formal requirement of the security of supply services (see recitals (29) to (40)).

(138)

There therefore appear to be no grounds in the 2004 Utilities Directive and the 2014 Utilities Directive for excluding the services at issue from the requirements in those directives.

(139)

Lithuania maintains that, regardless of the applicability of the public procurement rules, the beneficiary was the only entity technically able to provide the services at issue (see recital (52)).

(140)

At this stage, it is not clear to the Commission whether the services at issue were awarded in a transparent manner as notices regarding procurement were never published, and not all the technical requirements for those services appears to have been pre-defined and set out in the relevant documentation (see also recitals (112) to (114)). Other providers were therefore arguably not in a position to understand the process, or the criteria, used for the selection of Ignitis Gamyba.

(141)

The Commission invites the views of interested parties and Lithuania as to whether other providers were able to meet the requirements of the services that were pre-defined and set out in the relevant contemporaneous documentation, or entrustment act.

(142)

In the light of the above, the Commission invites the views of interested parties and Lithuania as to whether Lithuania complied with the applicable Union public procurement rules and that the measure therefore complies with point 19 of the SGEI Framework.

3.2.7. Absence of discriminatory compensation

(143)

According to paragraph 20 of the SGEI Framework, «[w]here an authority assigns the provision of the same SGEI to several undertakings, the compensation should be calculated on the basis of the same method in respect of each undertaking».

(144)

Since the services at issue were assigned only to Ignitis Gamyba (see recital (53)), the Commission considers, at this stage, that there cannot be a question of discriminatory compensation between SGEI providers within the meaning of point 20 of the SGEI Framework.

3.2.8. Amount of compensation

Methodology used for the calculation of the net cost

(145)

According to point 21 of the SGEI Framework, «the amount of compensation must not exceed what is necessary to cover the net cost of discharging the public service obligations, including a reasonable profit». In this respect, point 24 of the SGEI Framework establishes that «the net cost necessary, or expected to be necessary, to discharge the public service obligations should be calculated using the net avoided cost methodology where this is required by Union or national legislation and in other cases where this is possible».

(146)

Point 27 of the SGEI Framework stipulates that where the use of that methodology is not feasible or appropriate «where duly justified, the Commission can accept alternative methods for calculating the net cost necessary to discharge the public service obligations, such as the methodology based on cost allocation».

(147)

In the present case, Lithuania submits that the calculation of the amount of compensation for the provision of the services at issue based on NRA methodology O3-229 took place using the cost allocation methodology laid down in point 28 of the SGEI Framework, which provides that «the net cost necessary to discharge the public service obligations can be calculated as the difference between the costs and the revenues for a designated provider of fulfilling the public service obligations, as specified and estimated in the entrustment act» (see recital (54)).

(148)

Among other things, Lithuania justifies the choice of that methodology over the net avoided costs methodology by reference to the fact that, in the absence of the assignment of the services at issue to Ignitis Gamyba, the latter (considering only its commercial interests) would have dismantled its old power-generating units, meaning that the net cost in the counterfactual scenario would have been zero (see recital (55)) (54).

(149)

Considering the explanations provided by Lithuania, the Commission considers the counterfactual scenario may be credible and grounded in rational assumptions, reflecting Ignitis Gamyba’s commercial incentives. The Commission therefore considers, at this stage, that the choice of the cost allocation methodology may be justified.

(150)

Point 29 of the SGEI Framework indicates that the costs to be taken into consideration under the cost allocation methodology include all the costs necessary to operate the SGEI.

(151)

In the present case, NRA methodology O3-229 listed the costs that could be taken into consideration stipulating, inter alia, that compensation for the provision of the services at issue could include only such costs that are specifically recognised by the NRA as dedicated to the provision of those services.

(152)

The Commission invites the view of interested parties and Lithuania as to whether the absence of a clear and more detailed definition of content of and the technical requirements for the provision of the services at issue in the applicable legal framework and/or in contracts between the TSO and the beneficiary at least for years 2013 and 2016 to 2018 (see recitals (112) to (114)) might have affected the costs necessary to operate the services at issue. If that were the case, the Commission invites views as to whether the measure complies with point 29 of the SGEI Framework. In particular, the Commission invites views as to how and based on what criteria the NRA determined which costs are dedicated to the provision of the services at issue.

Attribution of common costs

(153)

Point 31 of the SGEI Framework further indicates that «[w]here the undertaking also carries out activities falling outside the scope of the SGEI, the costs to be taken into consideration may cover all the direct costs necessary to discharge the public service obligations and an appropriate contribution to the indirect costs common to both the SGEI and other activities. The costs linked to any activities outside the scope of the SGEI must include all the direct costs and an appropriate contribution to the common costs».

(154)

In the present case, in addition to the services at issue, Ignitis Gamyba provided tertiary power reserve and heat production services and kept separate accounts for each of those services, as required by NRA Resolutions O3-229 and O3-112 (see recital (57)).

(155)

The NRA determined which costs should be attributed to any particular service or to several/all services. In case of services involving common costs or assets, the NRA also decided what portions of such costs should be allocated to each service, including what portion of the costs should be allocated to heat production (see recital (58)).

(156)

(157)

(158)

Moreover, any revenues from unregulated services such as energy sales on the market (resulting in a positive gross profit) were used by the NRA to reduce the price of regulated services for the upcoming years. As regards the reserves service in particular, the compensation for that service covered only the units’ availability costs, while no additional payments were made when the units were actually activated and bid in the market (see footnote 33).

(159)

The Commission invites the view of interested parties and Lithuania as to whether the absence of a clear and more detailed definition of content, in particular of the technical requirements for the provision of the services at issue in the applicable legal framework and/or in contracts between the TSO and the beneficiary at least for years 2013 and 2016 to 2018 (see recitals (112) to (114)), might have affected how the NRA determined which costs should be attributed to any particular service or to several/all services, including how it allocated common costs to each of those services. If that were the case, the Commission invites views as to whether Lithuania’s attribution of costs common to both the SGEI and other activities was in line with point 31 of the SGEI Framework.

Revenue

(160)

Point 32 of the SGEI Framework requires the revenue to be taken into account to include at least the entire revenue earned from the SGEI, and the excessive profits generated from special or exclusive rights.

(161)

In the present case, Lithuania submits that the revenue taken into account was that earned by Ignitis Gamyba for the provision of the services at issue. Moreover, no exclusive or special rights linked to activities other than the services at issue appear to have been assigned to Ignitis Gamyba by the granting authority. Moreover, any revenues from unregulated services such as energy sales on the market (resulting in a positive gross profit) were used by the NRA to reduce the price of regulated services for the upcoming years.

(162)

The Commission invites the view of interested parties and Lithuania as to whether the absence of a clear and more detailed definition of content, in particular of the technical requirements for the provision of the services at issue in the applicable legal framework and/or in contracts between the TSO and the beneficiary at least for years 2013 and 2016 to 2018 (see recitals (112) to (114)), might have affected the revenue earned from the provision of the services at issue and the profits generated from special or exclusive rights. If that were the case, the Commission invites views as to whether the revenue taken into account for the provision of the SGEIs in question was in line with point 32 of the SGEI Framework

Reasonable profit

(163)

Points 33 to 38 of the SGEI Framework allow for the entity fulfilling the PSOs to achieve a reasonable profit. This is the rate of return on capital that would be required for a typical company considering whether or not to provide the SGEI for the entire duration of the entrustment act, taking into account the level of risk. Where duly justified, other profit level indicators can be used.

(164)

In the present case, the NRA controlled the profitability / rate of return. More specifically, NRA Resolution 03-229 indicated that the compensation provided for the services at issue should include costs related to return on investments, which must be «reasonable». The same resolution established principles and formulas stipulating how such reasonable return on investments must be included in the compensation. Under that methodology, the rate of return on investments was determined based on the «weighted average costs of capital» (WACC) methodology applicable to regulated services in the energy sector. Lithuania also submits that the profitability of the services at issue was only slightly higher than that of activities of other market participants in the energy sector, as well as within the range of the profitability of applied by NRAs in other Member States (see recital (61)).

(165)

The Commission invites the view of interested parties and Lithuania as to whether the absence of a clear and more detailed definition of content, in particular of the technical requirements for the provision of the services at issue in the applicable legal framework and/or in contracts between the TSO and the beneficiary at least for years 2013 and 2016 to 2018 (see recitals (112) to (114)) might have affected the level of profit included in the compensation under the measure, as calculated by the NRA. If that were the case, the Commission invites views as to whether that level was reasonable and whether the measure complied with points 33 to 38 of the SGEI Framework. The Commission also invites views on the fact that until 13 December 2014, NRA Methodology O3-229 contained only basic principles for the determination of the level of the reasonable profit, while details were left to the discretion of the NRA.

Efficiency incentives

(166)

Point 39 of the SGEI Framework requires Member States to introduce incentives for the efficient provision of the SGEI unless they can justify why it is not feasible or appropriate to do so. Point 42 of the SGEI Framework requires the incentives to be based on objective and measurable criteria set out in the entrustment act, and subject to a transparent ex post assessment carried out by an entity independent from the SGEI provider.

(167)

In the present case, Lithuania submits that the relevant legal framework provided that SGEI compensation should include only efficient (reasonable / necessary) costs for the provision of SGEI, thus obliging the SGEI provider to cover the difference between the actual costs and efficient costs from its profit and/or other sources of income (see recital (62)).

(168)

Moreover, the NRA was appointed to approve the methodology for the calculation of SGEI compensation as well as the specific level of that compensation and ensure that SGEI prices would be «economically reasonable» and lead to the «least cost to electricity consumers» in the following ways (see recitals (63) and (64)).

(169)

(170)

Second, in approving the specific level of the SGEI compensation, the NRA carried out a control of the efficiency of costs both ex ante and ex post. As regards ex ante controls, the process for the determination of the SGEI compensation always started from the submission of projected costs by the SGEI provider. The NRA then considered whether such projected costs were reasonable and made its own calculations of costs that were actually needed to perform the services at issue. As regards ex post controls, for the approval of the SGEI compensation for the upcoming year, the provider was required to provide figures that would reveal the difference between the projected and actual costs incurred. In deciding on the adjustment of the SGEI compensation by the difference between projected and actual costs, the NRA also considered whether the actual costs were effective. In other words, the NRA included in the adjustment not the mathematical difference between the actual and projected costs, but difference between the projected and effective actual costs (see recital (66)).

(171)

The Commission invites the views of interested parties and Lithuania as to whether the measure complies with points 39 to 43 of the SGEI Framework. In particular, the Commission invites views as to whether the alleged mechanism for incentivising efficiency improvements was based on objective and measurable criteria set out in the entrustment act or whether it was subject to a transparent ex post assessment carried out by the NRA.

Separate accounts

(172)

Point 44 of the SGEI Framework requires the internal accounts of undertakings that carry out activities falling both inside and outside the scope of the SGEI to show separately the costs and revenues associated with the SGEI and those of the other services.

(173)

As explained in recitals (120) to (128), the Commission invites the views of interested parties and Lithuania as to whether the accounting separation between non-SGEI activities and SGEI activities, as implemented, is appropriate and that Ignitis Gamyba complies with point 44 of the SGEI Framework.

Overcompensation

(174)

Point 49 of the SGEI Framework requires Member States to regularly check that there is no overcompensation and provide evidence of this to the Commission upon request. For aid granted by means other than a public procurement procedure with publication, checks should normally be made at least every two years.

(175)

In the present case, Lithuania submits that control of overcompensation was conducted via ex post controls of actual costs incurred for providing the services at issue as well as profitability controls (see recital (68)).

As regards ex post controls, pursuant to point 27 of the NRA methodology O3-229, the NRA determined the price paid for the services at issue for the following year. During that process (55), Lithuania submits that the NRA reconciled the difference between actual and projected costs and profitability (56).

As regards profitability controls, until 13 December 2014, NRA Methodology O3-229 contained the basic principles for determining the level of reasonable profit, while details were left to the discretion of NRA, which relied on external benchmarks, such as return on Government bonds and benchmarks published by Damodaran. As from that date, the relevant methodology was amended to indicate specifically which profitability benchmarks should be used, while, as from 9 September 2015, NRA methodology O3-510 established a methodology for calculating reasonable return in all sectors regulated by the NRA, including the electricity sector (57).

c)	Finally, to ensure compatibility with all rules controlling the level of SGEI prices, NRA Resolution O3-112 established an obligation to perform independent auditing of annual reports submitted by the SGEI provider to the NRA.

(176)

The Commission invites the views of interested parties and Lithuania as to whether the measure complies with points 47 to 50 of the SGEI Framework. In particular, the Commission invites views as to whether the various mechanisms put in place by Lithuania in the present case ensured that the compensation granted for the provision of the services at issue met the requirements set out in the SGEI Framework and, in particular, whether Ignitis Gamyba was not receiving compensation in excess of the amount determined in accordance with this those requirements.

3.2.9. Additional requirements which may be necessary to ensure that the development of trade is not affected to an extent contrary to the interests of the Union

(177)

Point 52 of the SGEI Framework states that, even when the requirements of the framework recalled above are met, «in some exceptional circumstances, serious competition distortions in the internal market could remain unaddressed and the aid could affect trade to such an extent as would be contrary to the interest of the Union».

(178)

In such exceptional circumstances, the Commission may require additional conditions or request additional commitments from the Member States to mitigate serious distortions of competition, as stated in point 53 of the SGEI Framework.

(179)

Point 54 of the SGEI Framework further states that «[s]erious competition distortions such as to be contrary to the interests of the Union are only expected to occur in exceptional circumstances. The Commission will restrict its attention to those distortions where the aid has significant adverse effects on other Member States and the functioning of the internal market, for example, because they deny undertakings in important sectors of the economy the possibility to achieve the scale of operations necessary to operate efficiently».

(180)

In the present case, taking into account the provisional assessment in sections 3.2.2, 3.2.3, 3.2.5, 3.2.6 and 3.2.8, and considering that the measure is no longer in force, the Commission invites the views of interested parties and Lithuania as to whether additional requirements to ensure that the development of trade is not affected to an extent contrary to the Union interest are necessary as well as to the potential form and content of such additional requirements.

3.2.10. Transparency

(181)

Point 60 of the Framework provides that Member States must publish, for each SGEI compensation they grant: (i) the results of the public consultation, (ii) the content and duration of the PSO, (iii) the undertakings and the territory concerned and (iv) the amounts of aid granted to the undertakings on a yearly basis.

(182)

According to the case law of the Union Courts, it is apparent from the wording of point 60(a) of the SGEI Framework that «Member States are not obliged to publish the results of the public consultation separately, and those results may appear, for example, in the act by which a Member State entrusts responsibility for the operation of the SGEI to the undertaking concerned» (58).

(183)

Nevertheless, the Union Courts have held that «where a Member State decides to satisfy the obligation to publish the results of the public consultation by means of the publication of the act imposing responsibility for the operation of an SGEI, it is necessary, in order not to deprive that obligation of its effectiveness, that that publication make sufficiently detailed, express reference to the results of the public consultation carried out as part of the procedure which led to the adoption of that act» (59).

(184)

In other words, «the requirements following from paragraph 14 [of the SGEI Framework], regarding proof that consideration has been given to the public service needs supported, by means of a public consultation or other appropriate instruments, cannot be equated with the transparency requirement laid down in paragraph 60(a) of the SGEI Framework, which specifically concerns the publication of the results of the public consultation. Consequently, the fact that a Member State has complied with the requirements of paragraph 14 of the SGEI Framework does not necessarily imply that it has also complied with the transparency obligation, within the meaning of paragraph 60(a) thereof» (60).

(185)

In the present case, Lithuania submits that it has published on the internet or by other appropriate means all information required under point 60 of the SGEI Framework. In particular:

(186)

As regards the results of the public consultation or other appropriate instruments referred to in point 14 of the SGEI Framework, the ten-year plans prepared by the TSO on an annual basis are available on the TSO’s website, while all feedback received during the adoption of the Government resolutions listed in recital 12 of the Opening Decision were published on the information system of the Lithuanian Parliament. In cases where feedback received from stakeholders was more extensive, any reports detailing the reasons for either accepting or rejecting that feedback were also published on the Lithuanian Parliament’s website (see recital (72)).

(187)

As regards the content and duration of the public service obligations, the relevant information was published through the publication of Resolution 916, which stipulated that the TSO should approve the technical requirements for the provision of services at issue and make them public on its website and that the entrustment of those services was made for one year (see recital (73)).

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(188)

As regards the undertaking and the territory concerned, the Government resolutions listed in recital 12 of the Opening Decision entrusted the services at issue to Ignitis Gamyba. Although those resolutions did not refer to the territory for the provision of those services, it was apparent that the entrustment concerned the security of supply of the entire Lithuanian electricity network (see recital (74)).

CELEX	52026AS44725
Type	Avis institutionnel
Date	mercredi 11 février 2026

Résumé IA

Texte intégral

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