This proposal was prepared in light of the legislative proposal to be submitted by the Ministry of Environment, Energy and Climate Change to the Greek Parliament and addresses an issue long discussed and considered by other Member States, as well. On the same occasion, the Managing Partner of Law Firm Metaxas & Associates, Dr. A. Metaxas that was assigned by the abovementioned Greek companies to deliver a legal opinion on the matter, analyzed the main legal aspects of the adoption of a relevant regulation by the Greek Ministry of Environment, Energy and Climate Change. Especially, he focused on the compatibility of such a measure in its different variations with European State Aid and WTO Law.
The main conclusions of his legal opinion consist of the following points:
1. Taking into account the case law of the Court of the EU and the nature and function of the Greek FiT Mechanism it may be argued that it is questionable if a measure consisting in the provision of a targeted feed-in-tariff premium granted to investors using photovoltaic equipment produced in Greece does not even constitute a state aid within the meaning of Art. 107 (1) of the Treaty for the Functioning of the European Union (TFEU). However, it is not unlikely that the European Commission might raise objections, given the difficulty in defining the exact legal meaning of state aid and its parameters and the often observed divergences between the case law of the Court of the EU and the Commissions practice in interpreting and applying the prohibition rule of Article 107 par.1 TFEU in the course of the examination of FiT Schemes.
2. Furthermore, in the event that such a supporting measure is considered to constitute state aid, EU State Aid Law provides for specific categories of exemptions, the application of which may render a measure ad hoc compatible with the common market. More specifically, given the serious distortion of the Greek economy, consisting of deep recession and high unemployment rates, the invocation of the exemption of article 107 par.
3 (b) TFEU may render the support of the local photovoltaic production compatible with the common market, provided the ability of the photovoltaic sector to have a key role in boosting the Greek economy. 3. Moreover, such a measure containing economic incentives may also be considered compatible aid on the basis of Article 107 par.
3 (c), as far as the promotion of the photovoltaic sector in Greece is in line with the fundamental aim of the European Union to promote sustainable environmental growth and thus promote renewable energy resources. In this context, though, any possible distortions of competition are examined in a stricter way by the European Commission. However, given the problems the Greek photovoltaic sector faces due to the present economic conditions in Greece and the limited character of the proposed measure in terms of its size and duration, the case of its compatibility with EU State Aid Law is strongly defendable.
4. However, it is of great importance to be mentioned that the only institution competent to assess the compatibility of the proposed measure is the European Commission, to which the measure has to be notified. In addition, the proposed measure cannot be put into effect before the Commission has delivered its decision approving it (so called stand still clause).
5. In any case, the said legal opinion also examined the alternative to give economic incentives to investors using photovoltaic equipment of European origin, which raises no issues of compatibility with European state aid law, whereas possible tensions with the rules of the World Trade Organization may be easier avoided. 6. Lastly, the example of Italy, where a relevant measure is already in force, may indeed provide useful guidance for the implementation of a feed-in-tariff bonus with a local content requirement.
