THE BOTTOM LINE
- Risk Shifts to Users: Businesses using state-supported infrastructure may face tariff changes that shift financial risk from the government to them. This opinion greenlights moving from volume-based fees (“use-it-or-lose-it”) to guaranteed revenue models (“use-it-or-pay”).
- Faster Approvals for Aid Changes: The European Commission has more flexibility to approve modifications to existing State aid schemes without a full, new investigation, provided the changes don’t fundamentally alter the project’s original goal or grant a new economic advantage.
- Higher Bar for Legal Challenges: Companies challenging such modifications will find it harder to succeed. They must now prove the change introduces a truly new advantage for the beneficiary, not simply that it reallocates how an existing, approved aid package is funded.
THE DETAILS
The case revolves around Poland’s liquefied natural gas (LNG) terminal in Świnoujście, a critical piece of energy infrastructure. The operator’s revenue was originally supported by a State aid scheme approved by the European Commission. A key user, the energy company PGNiG (now part of Orlen), challenged a change to the terminal’s tariff structure. The system was modified from a “use-it-or-lose-it” model, where users paid for the capacity they consumed, to a “use-it-or-pay” model, which guarantees revenue for the operator by making users pay for their reserved capacity, regardless of actual use. PGNiG argued this change constituted new, illegal State aid that unfairly benefited the terminal operator at its expense.
At the heart of the legal debate was whether this tariff modification was a minor tweak to an existing aid package or a completely new form of State aid requiring a fresh, in-depth investigation by the Commission. Advocate General Ćapeta, in her advisory opinion to the Court, sided with the Commission. She reasoned that the core purpose of the original State aid—to ensure the financial viability of the terminal and Poland’s energy security—remained unchanged. The new tariff system did not grant the operator a new economic advantage; it simply changed the source of the funds used to achieve the already-approved objective.
The Advocate General’s key insight is that the financial burden was merely reallocated. Instead of the Polish state covering potential revenue shortfalls from the national budget, the risk and cost were shifted directly onto the commercial users of the terminal. Since the overall level of compensation for the operator was consistent with the initial State aid decision, the AG concluded the Commission was correct to treat this as a modification of an existing scheme rather than a new one. While the Court is not bound by this opinion, it provides a strong indication of how judges will likely view the balance between regulatory flexibility and strict enforcement of State aid rules for major infrastructure projects.
SOURCE
Source: Court of Justice of the European Union
