PGI Spain, SL and Others v European Commission (C-348/25 P)

JUDGMENT OF THE COURT (Ninth Chamber)

22 October 2026 (*)

( Appeal – State aid – Energy crisis – National measures to reduce wholesale electricity prices in the Iberian market – Decision not to raise objections – No serious difficulties – Principle of non-discrimination – Evidence subsequent to the adoption of the decision – Relevance – Request for the production of documents – Standard of proof required – Request for the production of the sound recording of the hearing before the General Court of the European Union )

In Case C‑348/25 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 May 2025,

PGI Spain, SL, established in Barcelona (Spain),

Berry Superfos Pamplona, SA, established in Navarre (Spain),

Promens Packaging, SA, established in Barcelona,

RPC Envases, SA, established in Madrid (Spain),

Zeller Plastik España, SL, established in Barcelona,

represented by P.M. Holtrop, abogado,

appellants,

the other parties to the proceedings being:

European Commission, represented by C.-M. Carrega, T. Scharf and S. Verschraegen, acting as Agents,

defendant at first instance,

Kingdom of Spain, represented by A. Gavela Llopis and M. Morales Puerta, acting as Agents,

intervener at first instance,

THE COURT (Ninth Chamber),

composed of N. Jääskinen, acting as President of the Chamber, M. Condinanzi and A. Kornezov (Rapporteur), Judges,

Advocate General: A. Rantos,

Registrar: V. Di Bucci,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By their appeal, PGI Spain, SL, Berry Superfos Pamplona, SA, Promens Packaging, SA, RPC Envases, SA and Zeller Plastik España, SL are asking the Court of Justice to set aside the judgment of the General Court of the European Union of 12 March 2025, PGI Spain and Others v Commission (T‑596/22, EU:T:2025:251; ‘the judgment under appeal’), by which the General Court dismissed their action under Article 263 TFEU for the annulment of Commission Decision C(2022) 3942 final of 8 June 2022 on State aid SA.102454 (2022/N) – Spain and SA.102569 (2022/N) – Portugal – Production cost adjustment mechanism for the reduction of the electricity wholesale price in the Iberian market (‘the decision at issue’).

 Background to the dispute

2        In paragraphs 2 to 6 of the judgment under appeal, the General Court set out the background to the dispute as follows:

‘2      The Kingdom of Spain and the Portuguese Republic notified the European Commission on 20 and 23 May 2022, respectively, of a measure aiming to reduce the wholesale electricity price in the Iberian Peninsula by supporting the input costs of fossil fuel technologies (“the notified measure”).

3      By the [decision at issue], the Commission decided not to raise objections under Article 4(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).

4      In the [decision at issue], the Commission, in the first place, described the essential characteristics of the notified measure. In particular, it observed that:

–        the notified measure was taken in the context of the crises which national and international energy markets have had to face in recent decades, which have led to higher fossil fuel prices, in particular natural gas prices (recitals 4 and 5);

–        this has had an impact on households and small and medium-sized enterprises supplied under regulated contracts in Spain, namely the “precio voluntario para el pequeño consumidor” (PVPC, voluntary price for small consumers) and the regulated discount for certain vulnerable consumers known as “Bono social” …, and on virtually every type of economic activity (recitals 6 and 7);

–        the EU day-ahead electricity market was based on a marginal pricing method, which meant that the price of electricity was set by the last generation source necessary to meet demand at a given time, namely frequently fossil fuel power plants, which are the most expensive power plants owing to their high operating costs (recitals 20 to 23 and 34);

–        the notified measure entailed making payments to the operators of fossil fuel power plants located in the Iberian Peninsula in order to reduce electricity prices on the wholesale and, consequently, retail markets (recitals 24 and 33 to 39);

–        the notified measure would be financed by, inter alia, a contribution (“the contribution”) imposed by the Operador del Mercado Ibérico de la Energía-Polo Español, SA (OMIE) on buyers on the wholesale electricity market, that is to say, electricity suppliers and consumers purchasing electricity directly on the wholesale market for their own use …, in proportion to the amount of electricity purchased by them (recitals 25 and 44);

–        certain buyers on the wholesale electricity market would be exempt from payment of the contribution, including those which had entered into contracts at a fixed price prior to 26 April 2022, subject to compliance with certain conditions and, in particular, the notification of their contracts to OMIE (“the exemption from the contribution”) (recital 45(d) to recital 48).

5      In the second place, the Commission examined the classification of the notified measure under Article 107(1) TFEU. While it considered that the notified measure came within the scope of that provision, that conclusion was not extended to the exemption from the contribution. In that regard, the Commission found that buyers on the wholesale market which had entered into agreements to hedge their electricity purchases prior to the adoption of the notified measure would not benefit from the effects of that measure and concluded that the exemption did not lead to a selective advantage being conferred on them and, therefore, did not come within the definition of State aid (recitals 97 to 106 of the [decision at issue]).

6      In the third place, the Commission assessed the compatibility of the notified measure with the internal market under Article 107(3)(b) TFEU. It found, inter alia, that that measure was necessary, appropriate and proportionate (recitals 107 to 154 of the [decision at issue]) and that it did not infringe any of the relevant provisions of EU law, in particular Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54) and Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125) (recitals 174 to 192).’

 The action before the General Court, events subsequent to the bringing of the action and the judgment under appeal

3        By application lodged at the Registry of the General Court on 23 September 2022, the appellants brought an action under Article 263 TFEU for the annulment of the decision at issue.

4        In support of their action, the appellants relied on five pleas in law, alleging (i) a misunderstanding by the Commission of the notified measure; (ii) errors in the assessment of the appropriateness and proportionality of that measure; (iii) infringement of Article 10 of Regulation 2019/943 and Article 5 of Directive 2019/944; (iv) breach of the principle of non-discrimination; and (v) breach of the principle of the protection of legitimate expectations.

5        On 28 March 2023, that is to say, after the action had been brought before the General Court, the Kingdom of Spain amended the notified measure by adopting Real Decreto-ley 3/2023, de prórroga del mecanismo de ajuste de costes de producción para la reducción del precio de la electricidad en el mercado mayorista regulado en el Real Decreto-ley 10/2022 (Royal Decree-Law 3/2023 extending the production cost adjustment mechanism for the reduction of the price of electricity on the wholesale market regulated by Royal Decree-Law 10/2022) of 28 March 2023 (BOE No 75 of 29 March 2023, p. 45672) (‘RDL 3/2023’).

6        That amendment made it possible, inter alia, for buyers on the retail electricity market which had entered into power purchase agreements both with a physical electricity supplier and with another undertaking making offsetting payments based on fluctuations in the market price so as to ensure an agreed fixed price (‘financial PPAs’) to notify their financial PPAs to OMIE for the period from May to December 2023 and, under certain conditions, to benefit from the exemption from the contribution.

7        By Commission Decision C(2023) 2856 final, of 25 April 2023, on State Aid SA.106095 (2023/NN) – Spain and SA.106096 (2023/NN) – Portugal – Prolongation of MIBEL fossil-fuel cost adjustment mechanism (OJ 2023 C 203, p. 14) (‘the decision of 25 April 2023’), the Commission decided not to raise objections to the amendments made by RDL 3/2023.

8        On 10 August 2023, the appellants submitted, in their observations on the Kingdom of Spain’s statement in intervention, RDL 3/2023 and the decision of 25 April 2023 as new evidence and put forward arguments based on that evidence.

9        In the judgment under appeal, the General Court held at the outset that that new evidence and the arguments based on it could not be taken into account for the purpose of reviewing the legality of the decision at issue, on the ground that they post-dated the adoption of that decision.

10      The General Court went on to reject the five pleas in law raised by the appellants as unfounded. In its joint examination of the first and fourth pleas, the General Court also refused, in paragraphs 61 to 66 of the judgment under appeal, the appellants’ request seeking, in essence, that the notifications made by the Kingdom of Spain and the Portuguese Republic and the exchanges between those Member States and the Commission in the administrative procedure which led to the adoption of the decision at issue be placed on the file.

11      Consequently, the General Court dismissed the action in its entirety.

 Forms of order sought by the parties

12      The appellants contend that the Court should:

–        set aside the judgment under appeal;

–        give judgment in the present case and annul the decision at issue or, in the alternative, refer the case back to the General Court;

–        admit and take into account the new pleas in law and evidence submitted on 10 August 2023 before the General Court;

–        order the General Court to produce the sound recording of the hearing held in Case T‑596/22;

–        in so far as necessary, request the Commission and the Kingdom of Spain to produce the notifications submitted to the Commission on 20 and 23 May 2022 by the Kingdom of Spain and the Portuguese Republic and the additional information submitted by those Member States on 24 and 26 May 2022 and 6 June 2022; and

–        order the Commission to pay the costs at first instance and on appeal.

13      The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.

14      The Kingdom of Spain contends that the Court should dismiss the appeal.

 The appeal

15      In support of their appeal, the appellants raise five grounds of appeal relating to (i) the new evidence and new pleas in law submitted by the appellants on 10 August 2023 before the General Court; (ii) the request for a measure of organisation of procedure submitted by the appellants before the General Court seeking to have placed on the General Court’s file the notifications made by the Kingdom of Spain and the Portuguese Republic and the exchanges between those Member States and the Commission in the context of the administrative procedure which led to the adoption of the decision at issue; (iii) the existence of doubts as to the compatibility of the measure at issue with the internal market; (iv) breach of the principle of non-discrimination; and (v) infringement of Regulation 2019/943 and Directive 2019/944.

16      In addition, they ask the Court of Justice to order the General Court to produce the sound recording of the hearing held in Case T‑596/22. It is appropriate to examine that request first.

 The request for an order that the General Court produce the sound recording of the hearing held in Case T‑596/22

 Arguments of the parties

17      The appellants ask the Court of Justice to order the General Court, on the basis of the second paragraph of Article 24 of the Statute of the Court of Justice of the European Union and, in the alternative, Article 64(1) and (2)(b) of the Rules of Procedure of the Court of Justice, to produce the ‘original unedited’ sound recording of the hearing in Case T‑596/22 in order to enable them to access direct evidence which they claim is contained in that recording as to the fact that the Commission was aware, at the time of the adoption of the decision at issue, of the specific situation of buyers of electricity on the retail market which had entered into financial PPAs prior the adoption of the aid measure at issue, with the result that it was required to take that fact into consideration in its assessment of that measure. According to the appellants, that request is appropriate and proportionate, since, unlike the sound recording, a transcript of that recording would provide only indirect evidence and entail substantial additional cost and effort on the part of the General Court or the other parties to the proceedings.

18      The Commission contends that that request should be refused.

 Findings of the Court

19      According to the second paragraph of Article 24 of the Statute of the Court of Justice of the European Union, the Court may require, inter alia, the institutions of the European Union not being parties to the case to supply all information which it considers necessary for the proceedings.

20      Article 64(1) and (2)(b) of the Rules of Procedure of the Court of Justice provides, in that context, that the Court, after hearing the Advocate General, is to prescribe the measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved and that those measures include, inter alia, a request for information and production of documents.

21      It must also be borne in mind that the Court alone has jurisdiction to assess the relevance of a request for the production of documents having regard to the subject matter of the proceedings and the need for the requested documents in order to give a ruling in those proceedings (judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraph 93 and the case-law cited).

22      Article 115 of the Rules of Procedure of the General Court provides that the President of the General Court may, on a duly substantiated request, authorise a party who has participated in the written part or the oral part of the proceedings to listen, on the General Court’s premises, to the sound recording of the hearing in the language used by the speakers during that hearing.

23      In the present case, it is common ground that the appellants were authorised, in accordance with Article 115 of the Rules of Procedure of the General Court, to listen, on the General Court’s premises, to the sound recording of the hearing held in Case T‑596/22, in the language used by the speakers during that hearing, and that they themselves produced a transcript of that recording, which they submitted as an annex to their appeal. Since the content of that transcript has not been challenged by any of the parties to the proceedings, it is not necessary, having regard to the subject matter of the proceedings, to order the General Court to produce the sound recording of that hearing.

24      Consequently, the request for an order that the General Court produce the sound recording of the hearing held in Case T‑596/22 must be refused on the basis that it is unfounded.

 The first ground of appeal, relating to the new evidence and pleas in law submitted by the appellants on 10 August 2023 before the General Court

 Arguments of the parties

25      The appellants argue that the new evidence produced on 10 August 2023 before the General Court, although subsequent to the adoption of the decision at issue, points to proof of facts prior to the adoption of that decision. In particular, first of all, RDL 3/2023 and the decision of 25 April 2023 constitute evidence that the objective of the exemption from the contribution was to prevent those not benefiting from the measure from having to bear its cost. Next, the decision of 25 April 2023 refers, without further clarification, to ‘financial hedges’, which proves that the financial PPAs, which are typical in the sector, were known to the Commission and the Member States concerned when the decision at issue was adopted. Lastly, in the decision of 25 April 2023, the Commission recognised that retail market buyers which had entered into financial PPAs were in an equivalent position to wholesale market buyers which had concluded long-term contracts, with the result that the former also had to benefit from the exemption from the contribution. The same situation existed when the decision at issue was adopted. All of those factors show that the Commission was aware, when that decision was adopted, of the specific situation of buyers of electricity on the retail market which had entered into financial PPAs prior to the adoption of the aid measure at issue, with the result that it was required, in accordance with the case-law, to take that fact into consideration in its assessment of that measure.

26      Consequently, the appellants claim that, by failing to admit the new evidence produced on 10 August 2023 and the pleas in law based on that evidence, the General Court infringed Article 85 of its Rules of Procedure and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

27      The Commission submits that the appellants’ line of argument on appeal is merely a repetition of the arguments put forward at first instance and should therefore be declared inadmissible. In any event, the Commission and the Spanish Government dispute those arguments on the merits.

 Findings of the Court

28      It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. According to settled case-law, that requirement is not satisfied by an appeal which confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 10 November 2022, Commission v Valencia Club de Fútbol, C‑211/20 P, EU:C:2022:862, paragraph 29 and the case-law cited).

29      However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base its appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 10 November 2022, Commission v Valencia Club de Fútbol, C‑211/20 P, EU:C:2022:862, paragraph 32 and the case-law cited).

30      In the present case, it is true that, by their line of argument summarised in paragraphs 25 and 26 above, the appellants base their appeal on arguments already raised before the General Court. Nevertheless, in doing so, they direct their criticisms at specific points of law in the judgment under appeal and therefore challenge the General Court’s interpretation or application of, inter alia, Article 85 of its Rules of Procedure.

31      Consequently, those points of law examined at first instance may be debated again in the appeal proceedings. It follows that, contrary to the Commission’s claim, the first ground of appeal is admissible.

32      As regards the substance, in paragraphs 15 and 22 to 25 of the judgment under appeal, the General Court held as follows:

‘15      In addition, the lawfulness of a decision not to raise objections taken at the end of a preliminary examination procedure falls to be assessed by the EU judicature, in the light not only of the information available to the Commission at the time when the decision was adopted, but also of the information which could have been available to the Commission (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 42 and the case-law cited).

…

22      In that regard, it should be noted that, when they lodged their observations on 10 August 2023, the applicants submitted new evidence, relating to, first, the amendment of the notified measure after the [decision at issue], which from then on allowed buyers on the retail electricity market to notify OMIE of their power purchase agreements for the period from May to December 2023, and, second, the Commission’s decision of 25 April 2023 not to raise objections to that amendment of the measure.

23      Without the need to consider whether or not that new evidence and the related arguments are out of time such as to render them inadmissible, suffice it to point out that such evidence cannot, in any event, be taken into account for the purpose of reviewing the legality of the [decision at issue], as the Commission rightly argues.

24      It is apparent from the case-law cited in paragraph 15 above that the [decision at issue] is to be assessed in the light of the information which could have been available to the Commission at the time when it adopted that decision. This is a specific application of the more general principle that, in an action for annulment, the legality of an EU measure is to be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted, such that measures subsequent to the adoption of a decision cannot affect the validity of that decision (see judgment of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 45 and the case-law cited).

25      The evidence submitted by the applicants on 10 August 2023 and, consequently, the applicants’ related arguments cannot, therefore, be taken into account in the review of the legality of the [decision at issue].’

33      First of all, it is clear from those paragraphs of the judgment under appeal that the General Court rejected the evidence and related arguments submitted by the appellants on 10 August 2023, not under Article 85 of its Rules of Procedure because they were out of time, but on the ground that, according to the case-law of the Court of Justice, measures subsequent to the adoption of a decision not to raise objections taken at the end of the preliminary examination procedure cannot affect the validity of that decision. Consequently, the appellants’ line of argument alleging infringement of Article 85 of the Rules of Procedure of the General Court is based on a misreading of the judgment under appeal and must, therefore, be rejected.

34      Next, even if, as the appellants argue, evidence subsequent to the adoption of a Commission decision might demonstrate that the Commission was aware, when the decision at issue was adopted, of the specific situation of electricity buyers on the retail market which had entered into financial PPAs, the appellants essentially confine themselves to arguing before the Court of Justice that the decision of 25 April 2023 proves – because it refers, without further clarification, to ‘financial hedges’ – that the financial PPAs were known to the Commission and the Member States concerned at the time of the adoption of the decision at issue.

35      However, that argument is incapable of demonstrating that the Commission was in fact aware, at the time of the adoption of the decision at issue, of the specific situation of electricity buyers on the retail market which had entered into financial PPAs prior to the adoption of the aid measure at issue or that it could have had such information. The appellants merely refer to certain recitals of the decision of 25 April 2023 which refer to unspecified ‘financial hedges’ and make no mention of the specific situation of electricity buyers on the retail market which had entered into financial PPAs. Accordingly, the reference to those recitals cannot, on its own, provide concrete support for the appellants’ line of argument.

36      In addition, the appellants have failed to identify other specific evidence deriving from RDL 3/2023 or from the decision of 25 April 2023, showing that the Commission had or could have had, at the time of the adoption of the decision at issue, knowledge of the specific situation of electricity buyers on the retail market which had entered into financial PPAs prior to the adoption of the aid measure at issue.

37      Lastly, the General Court did not err in law in applying in this case the case-law of the Court of Justice referred to in paragraph 24 of the judgment under appeal, according to which, in an action for annulment, the legality of an EU measure is to be assessed on the basis of the facts and the law as they stood at the time when that measure was adopted, such that measures subsequent to the adoption of a decision cannot affect the validity of that decision.

38      In that regard, in so far as the appellants nevertheless infer an infringement of Article 47 of the Charter, it must be borne in mind that, in order to satisfy the requirements flowing from the right to a fair hearing, the EU Courts must ensure that the principle of audi alteram partem is respected in proceedings before them and that they themselves respect that principle, which confers on each party to proceedings the right to be apprised of and to discuss the documents produced and observations made to the Court by the other party. It is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings. In addition, the principle of equality of arms, which is a corollary of the very concept of a fair hearing, requires that each party must be afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (judgment of 26 March 2026, Pumpyanskiy and Others v Council, C‑696/23 P, C‑704/23 P, C‑711/23 P, C‑35/24 P and C‑111/24 P, EU:C:2026:245, paragraph 407 and the case-law cited).

39      In the present case, it is apparent from the file submitted to the Court that the appellants were able to debate and be heard on the matters of fact and law essential to the proceedings and to present their case, including the evidence, on an equal footing with the Commission. Accordingly, the fact that the General Court rejected, in accordance with the case-law referred to in paragraph 24 of the judgment under appeal, the new evidence and related arguments submitted by the appellants on 10 August 2023 on the ground that they were irrelevant for the purpose of reviewing the legality of the decision at issue, cannot, in itself, constitute an infringement of Article 47 of the Charter.

40      It follows that the first ground of appeal must be dismissed as unfounded.

 The second ground of appeal, relating to the request for a measure of organisation of procedure submitted by the appellants before the General Court

 Arguments of the parties

41      In the first place, the appellants contend that, contrary to the General Court’s finding in paragraph 65 of the judgment under appeal, they had adduced evidence proving that the use by buyers on the retail market of financial PPAs had been addressed in the exchanges between the Commission and the Member States concerned in the administrative procedure which led to the adoption of the decision at issue. They submit that, in paragraphs 186 to 195 of their observations on the statement of intervention lodged by the Kingdom of Spain, they had pointed out that that Member State had affirmed, in paragraph 68 of that statement, that extending the exemption from the contribution to those buyers had been considered, but ruled out. In addition, the Commission and the Kingdom of Spain stated before the General Court that the conditions for applying the exemption from the contribution were the result of a joint effort between the Commission and the Member States concerned. Accordingly, the General Court’s requirement in paragraph 65 of the judgment under appeal that the appellants should have adduced evidence suggesting that the use by buyers on the retail market of financial PPAs had been addressed during the exchanges between the Commission and the Member States concerned in the administrative procedure had in fact been met.

42      Furthermore, contrary to the General Court’s finding in paragraph 65 of the judgment under appeal, the Commission and the Kingdom of Spain had not refuted that line of argument put forward by the appellants. They had merely denied it inconclusively, arguing at the hearing before the General Court not that the Commission had not been notified of the existence of the financial PPAs concluded by retail market buyers in general, but that they were not aware of the specific situation.

43      However, first, since the Kingdom of Spain had considered including financial PPAs concluded on the retail market within the scope of the exemption from the contribution, it was aware of the negative effect of the notified measure on those buyers and was therefore required, by virtue of the principle of sincere cooperation, to notify it to the Commission. Second, the Commission was required to ask that Member State about the effect of the notified measure on those buyers, since reducing retail market prices was part of the objective of that measure.

44      Accordingly, by failing to grant the measure of organisation of procedure requested, the General Court, first of all, infringed the applicable law governing the grant of measures of organisation of procedure and disregarded the standard of proof required in order to grant that request. Next, by thereby wrongly disregarding the evidence submitted in paragraphs 186 to 195 of their observations on the Kingdom of Spain’s statement in intervention, the General Court distorted that evidence. Lastly, by accepting as fact the unsubstantiated assertions of the Commission and that Member State disputing that they had considered, in the administrative procedure, the use by retail market buyers of financial PPAs, the General Court infringed the appellants’ procedural rights.

45      In the second place, the appellants take issue with paragraph 64 of the judgment under appeal on the ground that they had requested production of the exchanges at issue during the judicial proceedings because they had not had access to them and because the Commission and the Kingdom of Spain had based their arguments on those exchanges but had not provided them. In the light of the standard of proof required by the General Court, the appellants were required to produce evidence showing that the Commission was aware, when the decision at issue was adopted, of the use of financial PPAs by retail market buyers. The exchanges in question were the most direct evidence. In those circumstances, the General Court’s refusal of that request constituted a breach of the principle of equality of arms.

46      In the third place and lastly, the appellants submit that, in paragraph 63 of the judgment under appeal, the General Court erred in relying on a distinction between purchases on the wholesale market and those on the retail market. According to the appellants, the purpose of the notified measure was to ensure, across both markets without distinction, that only those benefiting from the notified measure had to bear its cost. The aim of the request for a measure of organisation at issue was to verify the assertions made by the Commission and the Kingdom of Spain concerning the information that had been provided to the Commission by that Member State, both claiming that, in the light of that information, the Commission was not required to consider the situation of retail market buyers which had entered into financial PPAs.

47      The Commission and the Spanish Government dispute those arguments.

 Findings of the Court

48      In paragraphs 61 to 66 of the judgment under appeal, the General Court held as follows:

‘61      As regards the applicants’ request seeking, in essence, that the notifications made by the Kingdom of Spain and the Portuguese Republic and the exchanges between those Member States and the Commission be placed on the file, it should be borne in mind that it is for the Court to assess the usefulness of the measures of organisation of procedure requested by one of the main parties …

62      To enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 93; see, also, judgment of 16 October 2013, TF1 v Commission, T‑275/11, …, EU:T:2013:535, paragraph 117 and the case-law cited). Thus, that party must, inter alia, provide precise and relevant evidence to explain how the documents in question could be relevant to the resolution of the dispute (see, to that effect, judgment of 20 July 2016, Oikonomopoulos v Commission, T‑483/13, EU:T:2016:421, paragraph 253 …).

63      First, it must be pointed out that the applicants had access to the text of the notified measure and, for the reasons set out in the examination of the present plea, that the notified measure is based on a clear logic founded on the distinction between purchases on the wholesale and retail markets.

64      Second, the applicants’ request for a measure of organisation of procedure seeks, by its scope, to have the documents in the Commission’s administrative file added to the proceedings, despite the fact that the applicants, even in their capacity as interested parties, do not have a right of access to that file (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58).

65      Third, in those circumstances, the applicants needed to have adduced evidence suggesting that, beyond the text of the notified measure, the issue of the use by buyers on the retail market of financial power purchase agreements had been addressed during the exchanges surrounding the notification, which both the Commission and the Kingdom of Spain refute. However, it is clear that no such evidence has been adduced.

66      The applicants’ request for a measure of organisation of procedure must therefore be refused.’

49      In the first place, the appellants claim that in its assessment, in paragraph 65 of the judgment under appeal, the General Court failed to take into account the evidence which they claim to have submitted in paragraphs 186 to 195 of their observations on the Kingdom of Spain’s statement in intervention in order to demonstrate that the use by retail market buyers of financial PPAs had been addressed during the exchanges between the Commission and the Member States concerned in the context of the administrative procedure. They also contend that that omission constitutes a distortion of that evidence.

50      However, it is clear that those paragraphs 186 to 195 contain no evidence showing that the use by retail market buyers of financial PPAs had been addressed during the exchanges between the Commission and the Member States concerned in the context of the administrative procedure, but contain only assertions that the Kingdom of Spain’s knowledge of the situation of retail market buyers which had entered into financial PPAs necessarily meant that it had informed the Commission of that situation during their ‘joint effort’ to approve the notified measure.

51      It follows, first, that the General Court did not disregard the requirement laid down by the case-law which it recalled in paragraph 62 of the judgment under appeal when it did not accept those assertions as constituting evidence supporting the utility of the documents requested for the purposes of the proceedings and, second, that no distortion of the evidence by the General Court can be found.

52      In the second place, when the General Court stated, in paragraph 65 of that judgment, that the Commission and the Kingdom of Spain refuted having addressed, during the administrative procedure, the situation of buyers of electricity on the retail market which had entered into financial PPAs, it took account of the fact that, in accordance with the case-law referred to in paragraph 62 of that judgment, the burden of proving the utility of the documents requested lay with the appellants and not with the Commission and that Member State, and that the appellants had failed to adduce evidence capable of discharging that burden.

53      Accordingly, the General Court did not infringe the appellants’ procedural rights by observing that the Commission and the Kingdom of Spain had refuted having exchanged information on the situation of retail market buyers during the administrative procedure which led to the adoption of the decision at issue.

54      In the third place, in so far as the appellants challenge the General Court’s assessment contained in paragraphs 63 and 64 of the judgment under appeal, it must be noted that, in their request for a measure of organisation of procedure submitted before the General Court, the appellants did not specifically identify the documents whose production was sought; rather, that request sought, in essence, to have the entire administrative file added to the proceedings, so that they might find documents or evidence supporting their position in that file.

55      In that regard, the General Court correctly held, in paragraph 64 of that judgment, that the appellants, even in their capacity as interested parties, do not have a right of access to the file in the present case. Consequently, by finding that the appellants had not satisfied the requirement, referred to in paragraph 62 of that judgment, that they identify the documents requested and provide at least minimum information indicating the utility of those documents for the purposes of the proceedings, the General Court did not breach the principle of equality of arms.

56      In the light of the foregoing, the second ground of appeal must be dismissed as unfounded.

 The third ground of appeal, relating to the existence of doubts as to the compatibility of the measure at issue with the internal market

 Arguments of the parties

57      In the first place, the appellants claim that, contrary to the General Court’s finding in paragraph 45 of the judgment under appeal, they provided, in paragraphs 186 to 196 of their observations on the Kingdom of Spain’s statement in intervention, sufficient evidence to show that the Commission was aware both of the existence of the financial PPAs concluded by buyers on the retail market and of the negative effect of the notified measure on those buyers. Indeed, it appears that, during the administrative procedure, the Commission had discussed with the Member States concerned the possibility of granting the exemption from the contribution also to buyers on the retail market which had entered into financial PPAs, with the result that it was necessarily aware of the negative effects of that measure on those buyers.

58      However, in the judgment under appeal, the General Court failed to examine not only that evidence, which amounts to distortion, but also the pleas in support of which that evidence had been adduced, even though those pleas had been discussed at the hearing before the General Court and had not been refuted. Accordingly, the General Court also failed to find that the Commission had been aware of that information and should have taken it into consideration in its assessment of the notified measure and initiated the formal investigation procedure.

59      In the second place, since the General Court had refused their request for a measure of organisation of procedure, the appellants had provided all the evidence at their disposal, so that the General Court could not require them to adduce any further evidence. That refusal constitutes, moreover, an infringement of EU law and a breach of procedure adversely affecting the appellants, compounded by the acceptance as facts of the statements made by the Commission and the Kingdom of Spain, which also constitutes a breach of procedure.

60      In the third place, since the General Court recognised that the objective of the notified measure was to reduce prices on both the wholesale and retail markets, the Commission was legally obliged to consider the effect of the measure on retail market buyers, including in the light of the negative effects of that measure on retail market buyers which had entered into financial PPAs.

61      In the fourth place, the appellants state that it is common ground that the Kingdom of Spain was aware of the situation of retail market buyers which had entered into financial PPAs. In that regard, the Commission, as the supervisory authority for that Member State and that market, could not have been unaware of either that situation or the negative effects of the notified measure on those buyers. Therefore, in the light of the legal obligations incumbent on them, the Commission and that Member State were required to consider the situation of retail market buyers which had entered into financial PPAs. However, the General Court disregarded those legal obligations.

62      The Commission and the Spanish Government dispute those arguments.

 Findings of the Court

63      In the first place, as regards the General Court’s alleged failure to examine the evidence said to have been submitted in paragraphs 186 to 195 of the appellants’ observations on the Kingdom of Spain’s statement in intervention and the resulting failure to find that the Commission was under an obligation, in view of its alleged knowledge of the situation of retail market buyers which had entered into financial PPAs, to take that into account in its assessment of the measure at issue and to initiate the formal investigation procedure, that argument must be rejected for the reasons already set out in paragraph 50 of the present judgment.

64      In the second place, as regards the appellants’ line of argument that the General Court’s refusal to grant their request for a measure of organisation of procedure prevented them from producing the evidence required by the General Court, it has already been held, in paragraph 55 above, that the General Court was correct in finding, in paragraphs 64 and 65 of the judgment under appeal, first, that the appellants, even in their capacity as interested parties, did not have a right of access to the administrative file and, second, that they had failed to identify the documents sought and to provide at least minimum evidence of the utility of those documents for the purposes of the proceedings. That line of argument cannot therefore succeed.

65      In the third place, as regards the objective of the notified measure, the General Court held, in paragraphs 2, 32 and 77 of the judgment under appeal, as follows:

‘2      The Kingdom of Spain and the Portuguese Republic notified the European Commission on 20 and 23 May 2022, respectively, of a measure aiming to reduce the wholesale electricity price in the Iberian Peninsula by supporting the input costs of fossil fuel technologies …

…

32      In the first place, it follows, in particular, from recitals 4 to 7, 24 and 33 to 39 of the [decision at issue], first, that the objective of the notified measure is to bring about a reduction in electricity prices in the context of strong upward pressure on fuel prices, which is linked to a series of crises which national and international energy markets have had to face, and, second, that the measure seeks to attain that objective by supporting certain sources of electricity in order to achieve a reduction in wholesale market prices, which should, as a consequence, lead to a reduction in retail market prices.

…

77      In the second place, as also pointed out in paragraph 32 above, the notified measure seeks to attain that objective by supporting certain sources of electricity in order to achieve a reduction in prices on the wholesale market, which should in turn lead to a reduction on the retail market. Furthermore, as is apparent from paragraphs 33 to 35 and 53 to 56 above, the passing on of the reduction in prices on the retail market, with the exception of regulated contracts, is a product of competition on that market.’

66      Accordingly, the appellants’ argument that the General Court recognised that the objective of the notified measure was to reduce prices on both the wholesale and retail markets is based on a misreading of the judgment under appeal. The General Court found that the objective of the notified measure was to bring about a reduction in the price on the wholesale market, and that it was only as a consequence of that reduction that it might be passed on to the retail market, depending on how competition operated on that market.

67      In recital 13 of the decision at issue, the Commission noted that that measure was intended to lower wholesale electricity prices in the Iberian electricity market by supporting part of the fuel costs incurred by fossil fuel power plants, in light of the fact that they have a key influence over the prices in the electricity market. That assessment is borne out by the description of the nature and form of the notified measure, in recitals 24, 25, 33 and 34 of that decision, and of the way in which it is financed, in recitals 44, 45, 47, 78 and 79 of that decision.

68      It is true that a reduction in electricity prices on the retail market was also desired. Nevertheless, as the General Court rightly found in paragraphs 32 and 77 of the judgment under appeal, such a reduction was to result from competition and not from the notified measure as such. It follows that the notified measure neither provided for nor guaranteed a corresponding reduction in the price of electricity on the retail market. Accordingly, as the Commission and the Spanish Government rightly contend, the appellants attribute too broad an objective to the notified measure.

69      In the fourth place, since the appellants did not provide the General Court with any evidence showing that the Commission had, or could have had, information concerning the specific situation of buyers of electricity on the retail market which had entered into financial PPAs, it cannot be held that the Commission was under an obligation to seek, of its own motion, information concerning a possible extension of the scope of the exemption from the contribution to economic operators active in the retail market, particularly since that exemption does not, according to the Commission’s assessment, constitute State aid.

70      In accordance with well-established case-law, although the Court of Justice has held that, when the existence and legality of State aid is being examined, it might be necessary for the Commission, where appropriate, to go beyond a mere examination of the facts and points of law brought to its notice, it cannot be inferred from that case-law that it is for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45, and of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 56).

71      In the light of the foregoing, the third ground of appeal must be dismissed as unfounded.

 The fourth ground of appeal, alleging a breach of the principle of non-discrimination

 Arguments of the parties

72      The appellants claim that the General Court erred in law in finding, in paragraphs 49 to 60 of the judgment under appeal, that retail market buyers which had entered into financial PPAs, on the one hand, and wholesale market buyers which had concluded long-term contracts, on the other, were not in comparable situations.

73      As the General Court observed in paragraph 51 of the judgment under appeal, the question whether the factual and legal situations of buyers on those markets are comparable is to be examined in the light of the objective pursued by the notified measure. In that regard, the Commission found, in recital 101 of the decision at issue, that the objective pursued was to ‘oblig[e] all purchasers of electricity which are benefiting from the [notified] measure via reduced wholesale prices and are purchasing electricity with a view to its final use to pay a contribution’. That objective applies without distinction to buyers on both markets and means that those who do not benefit from that measure should likewise not be required to contribute to its cost. Thus, they were in an equivalent situation. That conclusion is supported both by the fact that the Kingdom of Spain had examined the possible extension of the exemption from the contribution to retail market buyers which had entered into financial PPAs, and by the recognition by the Commission, in the decision of 25 April 2023, that those buyers were in an equivalent situation.

74      Consequently, the Commission was required to examine whether the fact that retail market buyers which had made use of financial PPAs did not benefit from that exemption departed from the reference framework defined in recital 101 of the decision at issue and whether such a derogation could be justified by the nature or general scheme of that framework. In those circumstances, the General Court should have found, first, that there was discrimination between those two categories of buyers and, second, that the Commission’s failure to examine the situation of retail market buyers which had made use of financial PPAs shows that the Commission’s analysis was incomplete and insufficient, which is an indication of serious difficulties in the assessment of the measure at issue, justifying the initiation of the formal investigation procedure.

75      The Commission and the Spanish Government dispute that line of argument.

 Findings of the Court

76      The appellants’ line of argument alleging an unjustified difference in treatment between certain buyers on the wholesale market, including those which had entered into contracts at a fixed price prior to 26 April 2022, and those which had purchased electricity on the retail market by entering into financial PPAs is based on the premiss that, first, the Commission was aware of the situation of electricity buyers on the retail market which had entered into financial PPAs and was therefore required to consider their specific situation when adopting the decision at issue and, second, the aim of the notified measure was to reduce the price of electricity on both the wholesale and retail markets.

77      However, as has been held in paragraphs 50 and 66 to 68 above, neither of those premisses is well founded, with the result that that line of argument cannot succeed.

78      It follows that the fourth ground of appeal must be dismissed as unfounded.

 The fifth ground of appeal, alleging infringement of Regulation 2019/943 and Directive 2019/944

 Arguments of the parties

79      The appellants state that, in paragraphs 84 and 85 of the judgment under appeal, the General Court rejected their third plea in law, alleging that the notified measure infringes Regulation 2019/943 and Directive 2019/944, on the sole ground that that plea was wrongly based on the premiss, rejected in paragraphs 43 to 48 of that judgment, that the Commission should have taken into account the situation of buyers of electricity on the retail market which had entered into financial PPAs. However, if the Court of Justice were to uphold the appellants’ argument that the General Court’s findings in paragraphs 43 to 48 of that judgment are wrong in law, then the General Court’s findings in paragraphs 84 and 85 of that judgment would also be wrong in law.

80      The Commission and the Spanish Government state that the appellants have not put forward any independent line of argument concerning the present ground of appeal and contend that it does not therefore meet the requirement to state the reasons for an appeal, with the result that it should be rejected as inadmissible. In any event, they contend that the present ground of appeal should be dismissed on the merits.

 Findings of the Court

81      In paragraphs 84 to 85 of the judgment under appeal, the General Court held as follows:

‘84      The applicants argue that, since the notified measure departs from the principle of free price formation, it should have complied with the conditions permitting a derogation from the application of that principle, contained in Article 5(4) of Directive 2019/944, which was not the case, owing to the effects of the notified measure on electricity consumers in the same situation as the applicants.

85      It is clear that the present plea is based exclusively on the premiss that the Commission should have taken into account the situation of buyers of electricity on the retail market which have entered into financial [PPAs]. Accordingly, the present plea must be rejected at the outset, for reasons similar to those set out in paragraphs 43 to 48 above, as the Commission and the Kingdom of Spain rightly argue.’

82      It is apparent from those paragraphs that the General Court rejected the third plea in law on the sole ground that the appellants had based it on the premiss, rejected in paragraphs 43 to 48 of the judgment under appeal, that the Commission should have taken into consideration the situation of buyers of electricity on the retail market which had entered into financial PPAs. Accordingly, the appellants’ line of argument on appeal that, if that premiss were correct, the General Court’s assessment would be unfounded relates specifically to the reasoning in the judgment under appeal concerning that third plea in law and cannot, therefore, be rejected as inadmissible on the ground that no independent line of argument has been submitted, as the Commission and the Spanish Government wrongly claim.

83      By contrast, since the appellants’ line of argument challenging paragraphs 43 to 48 of the judgment under appeal has been rejected as unfounded in paragraphs 49 to 55 of the present judgment, the present ground of appeal, in so far as it is based on the premiss that those paragraphs of the judgment under appeal are vitiated by errors of law, must be dismissed as unfounded.

84      Since all of the grounds of appeal have been rejected as unfounded, the head of claim seeking to have the judgment under appeal set aside must be rejected.

85      Furthermore, in the light of that rejection, there is no need to give judgment on the action, refer the case back to the General Court, or examine the appellants’ heads of claim seeking, first, that the new pleas in law and evidence submitted on 10 August 2023 before the General Court be admitted and taken into consideration and, second, that the Commission and the Kingdom of Spain be ordered to produce the notifications sent to the Commission on 20 and 23 May 2022 by the Kingdom of Spain and the Portuguese Republic and the additional information produced by them on 24 and 26 May 2022 and 6 June 2022.

86      It follows that the appeal must be dismissed in its entirety.

 Costs

87      Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

88      Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

89      Since the Commission has applied for the appellants to be ordered to pay the costs and the latter have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission.

90      Under Article 140(1) of the Rules of Procedure of the Court of Justice, also applicable to appeal proceedings by virtue of Article 184(1) of those rules, the Member States and institutions which have intervened in the proceedings are to bear their own costs. In accordance with those provisions, the Kingdom of Spain must bear its own costs.

On those grounds, the Court (Ninth Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders PGI Spain, SL, Berry Superfos Pamplona, SA, Promens Packaging, SA, RPC Envases, SA and Zeller Plastik España, SL to bear their own costs and to pay those incurred by the European Commission;

3.      Orders the Kingdom of Spain to bear its own costs.

Jääskinen

Condinanzi

Kornezov

Delivered in open court in Luxembourg on 22 October 2026.

V. Di Bucci

N. Jääskinen

Registrar

Acting as President of the Chamber

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*      Language of the case: English.