OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 16 January 2020 (1)
Case C‑456/18 P
Hungary
v
European Commission
(Appeal – State aid – Decision to initiate the procedure provided for in Article 108(2) TFEU – Regulation (EC) No 659/1999 – Article 11(1) – Suspension injunction – Contestability of the suspension injunction – Legal interest in bringing proceedings despite there being no need to adjudicate – Exercise of discretion by the Commission when issuing a suspension injunction – Proportionality – Duty to state reasons)
I.      Introduction
1.        The present appeal against the judgment of the General Court under appeal (2) gives the Court of Justice the opportunity to deal with a separate right of recourse against an interim suspension injunction in State aid proceedings. Such an injunction expressly prohibited Hungary from continuing to implement two aid measures until the investigation procedure had been concluded.
2.        While Article 108(3) TFEU already provides that the Member States must not put the aid measure in question into effect once the investigation procedure has been initiated, an interim suspension injunction allows the Commission to conduct a simplified infringement procedure if the Member State does so nevertheless. It is clear that the Commission was particularly suspicious of Hungary, which is why it issued the interim injunction at the same time as it initiated the investigation procedure. However, the Commission’s reasoning for the injunction was essentially based only on the fact that the aid existed and its extent.
3.        It should be pointed out here that the Commission’s review relates to two tax laws (in the broader sense), the aid nature of which is derived primarily from the progressive tax rate. The question of whether this can in fact be regarded as constituting State aid within the meaning of Article 107 TFEU has not yet been clarified and is still the subject of contention. (3) Nevertheless, Hungary did not subsequently challenge the Commission’s final decision in the matter (regarding the aid character of the two laws), but continues to challenge the interim injunctions only in isolation. Hungary takes the view that they were issued on the basis of an error of assessment and were not based on an adequate statement of reasons.
4.        However, the General Court took a different view on this at first instance, which is why the Court of Justice must now decide, on appeal, whether the General Court was right not to object to the interim suspension injunctions, which, in the meantime, have ceased to be applicable.
II.    Legal framework
5.        The procedure regarding unlawful aid is governed by Chapter III of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 108 TFEU (4) (‘Regulation No 659/1999’).
6.        Article 11 (5) of that regulation reads:
‘(1) The Commission may, after giving the Member State concerned the opportunity to submit its comments, adopt a decision requiring the Member State to suspend any unlawful aid until the Commission has taken a decision on the compatibility of the aid with the common market (hereinafter referred to as a “suspension injunction”).
(2) The Commission may, after giving the Member State concerned the opportunity to submit its comments, adopt a decision requiring the Member State provisionally to recover any unlawful aid until the Commission has taken a decision on the compatibility of the aid with the common market (hereinafter referred to as a “recovery injunction”), if the following criteria are fulfilled:
–        according to an established practice there are no doubts about the aid character of the measure concerned
–        and
–        there is an urgency to act
–        and
–        there is a serious risk of substantial and irreparable damage to a competitor.
…’
7.        Article 12 of Regulation No 659/1999 enables the Commission, in the event of failures to comply with suspension injunctions, to initiate infringement proceedings within the meaning of Article 258 TFEU without conducting preliminary investigation proceedings:
‘If the Member State fails to comply with a suspension injunction or a recovery injunction, the Commission shall be entitled, while carrying out the examination on the substance of the matter on the basis of the information available, to refer the matter to the Court of Justice of the European Communities direct and apply for a declaration that the failure to comply constitutes an infringement of the Treaty.’
8.        The Commission closes the formal investigation procedure regarding non-notified aid by means of a decision pursuant to Article 13(1) in conjunction with Article 7 of Regulation No 659/1999. Article 7(5) provides for the prohibition of aid, which is referred to as a ‘negative decision’: ‘Where the Commission finds that the notified aid is not compatible with the common market, it shall decide that the aid shall not be put into effect …’
III. Background to the dispute
9.        In 2014, Hungary adopted, first, Law No XCIV on the health contribution of tobacco industry businesses. Second, Hungary amended Law No XLVI of 2008 on the food chain and the supervision thereof.
10.      By those two measures, Hungary introduced progressive contribution structures for the businesses concerned, which entered into force at the beginning of 2015.
11.      Hungary did not notify the Commission of those measures. As a consequence, the Commission informed Hungary that it took the view that the provisions of Law No XLVI and Law No XCIV could involve State aid that is not compatible with the internal market. In both communications, the Commission threatened suspension injunctions within the meaning of Article 11(1) of Regulation No 659/1999 and requested that Hungary submit comments in that regard. Hungary did not comply with that request.
12.      On 15 July 2015, the Commission initiated two formal investigation procedures pursuant to Article 108(2) TFEU. (6)
13.      In both procedures, the Commission issued suspension injunctions at the same time. As its reasoning, it stated, first, that Hungary had not commented on the threat of suspension injunctions and took the view that the measures did not constitute aid. Second, Hungary was still granting the unlawful aid. Third, the steeply progressive character of the turnover fee was capable of having a significant impact on the competitive situation in the market. (7)
14.      Hungary brought an action against the suspension injunctions within the prescribed time limit.
15.      On 4 July 2016, the Commission decided, pursuant to Article 13(1) in conjunction with Article 7(5) of Regulation No 659/1999, that the measures at issue constitute State aid that is not compatible with the internal market within the meaning of Article 107(1) TFEU and had been unlawfully put into effect in breach of Article 108(3) TFEU. (8) The two negative decisions became final.
16.      By the judgment under appeal of 25 April 2018, the General Court dismissed Hungary’s actions against the suspension injunctions. Hungary was notified of the judgment on 2 May 2018.
IV.    Proceedings before the Court of Justice
17.      On 12 July 2018, Hungary lodged the present appeal against the judgment of the General Court. Hungary claims that the Court of Justice should:
–        set aside the judgment under appeal;
–        annul Decision C(2015) 4805 final to the extent that it issues a suspension injunction;
–        annul Decision C(2015) 4808 final to the extent that it issues a suspension injunction;
–        order the Commission to pay the costs.
18.      By order of 15 October 2018, the President of the Court of Justice granted the Republic of Poland leave to intervene in support of Hungary. (9)
19.      The Commission contends that the Court of Justice should:
–        dismiss the appeal as inadmissible and/or unfounded;
–        order Hungary to pay the costs.
20.      The appeal was considered before the Court of Justice on the basis of the written submissions of Hungary, the Republic of Poland and the Commission, and the parties presented oral arguments at the hearing of 26 September 2019.
V.      The appeal
A.      Admissibility of the appeal
21.      The Commission takes the view that the appeal is inadmissible because the notice of appeal was unclear. In particular, it was not clear to the Commission which paragraphs of the judgment were being challenged by Hungary. Moreover, Hungary essentially repeated the grounds and arguments from the proceedings at first instance and, on several occasions, challenged the contested Commission decisions and not the judgment under appeal.
22.      According to settled case-law, an appeal does not satisfy the requirements relating to the duty to state reasons under Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice if it merely repeats the pleas in law or arguments previously submitted to the General Court. 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. (10)
23.      In the present case, contrary to the Commission’s submissions, the appeal does not constitute a mere repetition of the elements previously submitted at first instance. Hungary opposes in particular the statement of reasons in the judgment under appeal, which it challenges primarily with regard to the Commission’s exercise of its discretion in issuing suspension injunctions and its duty to state reasons. That is sufficient for the appeal to be regarded as admissible.
B.      Merits of the appeal
24.      In the context of an appeal, the admissibility of actions brought before the General Court is examined by the Court of Justice of its own motion. (11)
25.      Before examining the merits of the appeal, I shall therefore consider the admissibility of the actions brought before the General Court by Hungary. If the actions had already been inadmissible, the General Court would not, as a result, have committed an error of law in dismissing them and Hungary’s appeal would be unfounded.
1.      Admissibility of the actions brought against the suspension injunctions
26.      The actions brought against the interim suspension injunctions could have become inadmissible as a result of the fact that the negative decisions have since become final.
27.      However, the General Court takes the view that the actions were admissible. According to the General Court, it could not be considered that there was no longer a need to adjudicate on the actions (see (a) below), or that the applicant no longer had any legal interest in bringing proceedings (see (b) below). The General Court provides its reasoning for this in paragraph 49 of the judgment under appeal, stating that the issue of whether there is no longer a need to adjudicate on the action is in reality confused with that of whether the applicant no longer has any legal interest in bringing proceedings.
28.      I have to agree with the General Court’s finding as regards the admissibility of the actions, but not with the General Court’s reasoning.
(a)    Action which has become devoid of purpose
29.      According to settled case-law of the Court of Justice, the purpose of the action must continue until the final decision, failing which there will be no need to adjudicate. (12)
30.      It is true that, as far as can be seen, that case-law relates solely to actions brought by private individuals pursuant to the fourth paragraph of Article 263 TFEU, whereas, in the present case, Hungary has brought an action pursuant to the second paragraph of Article 263 TFEU. In that context, the General Court is correct that, as privileged applicants within the meaning of the second paragraph of Article 263 TFEU, the Member States do not have to demonstrate their legal interest in bringing proceedings. However, it does not follow that a Member State may bring actions per se against acts that no longer produce legal effects. Contrary to the view taken by the General Court, the issue of whether there is no longer a legal interest in bringing proceedings is not identical to that of whether the action has become devoid of purpose. The fact that a privileged applicant does not have to meet the specific conditions for an action pursuant to the fourth paragraph of Article 263 TFEU does not mean that it may bring actions before the Court of Justice which may be merely hypothetical. (13)
31.      The prohibition on implementation arising from the suspension injunctions ceased to be applicable when the negative decisions became final. This is because, as from the point at which the negative decisions were issued, Hungary has not been permitted to implement the measures, irrespective of the suspension injunctions.
32.      The possibility for the Commission to bring an action under the simplified procedure in connection with a suspension injunction pursuant to Article 12 of Regulation No 659/1999 also ceased to be applicable. This is because it was replaced by the equivalent simplified infringement proceedings under the second subparagraph of Article 108(2) TFEU when the negative decision became final. (14)
33.      Consequently, a suspension injunction pursuant to Article 11(1) of Regulation No 659/1999 has independent effect only up until the point at which the negative decision is issued (in the present case, in 2016). After that point, the suspension injunction no longer produces any independent legal effects. There is therefore no longer a need to adjudicate on the action brought in 2015.
(b)    Continuation of Hungary’s interest in the annulment of the contested suspension injunctions
34.      Nevertheless, in the present case, Hungary continues to have, by way of exception, an interest in seeking annulment of the contested suspension injunctions.
35.      The fact that Hungary allowed the negative decisions to become final in the present case does nothing to change this. Even if the suspension injunction and the negative decision are closely linked, challenging the negative decision is not a prerequisite for having an interest in seeking annulment of the suspension injunction, which has ceased to be applicable. The subject matter of the Commission’s two decisions is different.
36.      In an appeal against a negative decision, the General Court examines whether a measure adopted by a Member State constitutes aid which is prohibited pursuant to Article 107(1) TFEU. However, the present case concerns the Commission’s interim powers prior to the adoption of final decisions. These are subject to other conditions. Hungary did not act in a contradictory manner by not challenging the negative decision. It does not mean that Hungary no longer has an interest in a separate review of the suspension injunction after it had ceased to be applicable.
37.      According to case-law of the Court of Justice, an applicant may, in certain cases, retain an interest in seeking annulment of the contested act. This enables him to prevent the author of that act from repeating the unlawful act. The continuation of that interest presupposes that that unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the individual case. (15)
38.      It is true that the Commission conceded at the hearing that it issues suspension injunctions relatively rarely, and Hungary did not claim that the Commission threatened to issue suspension injunctions in other specific State aid proceedings.
39.      However, State aid control is very broad in scope and leads to a large number of Commission procedures. Furthermore, it is not apparent that the Commission has made its practice in the area of suspension injunctions subject to specific guidelines. It is therefore difficult to predict when, how and under what circumstances the Commission will make use of this competence.
40.      Moreover, as privileged applicants, the Member States have, in principle, a greater legitimate interest in seeking judicial review of the legality of the acts of the institutions. This is not contradicted by the recent order of the Court of Justice (16) cited in footnote 13. Although, in that order, the Court of Justice found that Hungary no longer had an interest, the reason why there was no longer a need to adjudicate in that case resided in the fact that Hungary amended the measure which the Commission had prohibited as aid. That situation is different from the present one. The present dispute concerns the Commission’s powers in the formal investigation procedure. Otherwise, the Member States would be denied legal protection against suspension injunctions as interim measures.
41.      Finally, Hungary, the Republic of Poland and the Commission unanimously expressed their interest in seeking a review of the suspension injunctions for reasons of legal certainty. (17)
42.      The present case is therefore not a hypothetical dispute. Rather, there is a sufficient risk of repetition to justify there being a continuing interest in seeking a review of the suspension injunctions, which have ceased to be applicable.
(c)    Interim conclusion
43.      Consequently, the actions before the General Court were admissible.
2.      Grounds of appeal
44.      Hungary relies on three grounds of appeal. By its first ground of appeal, Hungary asserts that, first, the General Court erred in law in its interpretation of the conditions for the issuing of suspension injunctions pursuant to Article 11(1) of Regulation No 659/1999, and, second, it failed properly to review the Commission’s exercise of its discretion. According to the second ground of appeal, the General Court erred in law in rejecting the arguments put forward by Hungary. The third ground of appeal concerns the Commission’s duty to state reasons.
45.      The second ground of appeal can be rejected from the outset as being manifestly unfounded. By that ground, Hungary contends that, in paragraphs 53 to 57 of the judgment under appeal, the General Court rejected the argument put forward by Hungary at the hearing – to the effect that the Commission wrongly identified the framework of Hungary’s measures at issue – as being late and therefore inadmissible under Article 84 of the Rules of Procedure of the General Court. However, the General Court did not err in law in finding that the allegation of an infringement of Article 107(1) TFEU by the Commission was a new plea in law that was inadmissible, because Hungary’s arguments in the applications had been directed only against the contested injunctions.
(a)    Conditions for the issuing of suspension injunctions pursuant to Article 11(1) of Regulation No 659/1999 (first part of the first ground of appeal)
46.      By the first part of the first ground of appeal, Hungary asserts that the General Court erred in law in its interpretation of the conditions for the issuing of suspension injunctions pursuant to Article 11(1) of Regulation No 659/1999.
(1)    Consideration of Article 108(3) TFEU in the context of Article 11(1) of Regulation No 659/1999
47.      Hungary takes the view that the General Court erred in law in its application of the case-law on Article 108(3) TFEU relating to the division of powers between the courts of the Member States and the Commission.
48.      This is based on an erroneous interpretation of the judgment under appeal. Rather, in paragraph 68 of the judgment under appeal, the General Court did not err in law in reproducing the case-law relating to Article 108(3) TFEU, (18) according to which the powers of the national courts are already restricted where the Commission assumes an infringement of the obligation to notify and initiates the formal investigation procedure.
49.      Furthermore, the General Court’s statements – which were criticised by Hungary – in relation to the ‘principal legal effect’ (paragraph 33 of the judgment under appeal) or ‘in essence, the same legal effect’ (paragraph 99 of the judgment under appeal) of the initiation of the formal investigation procedure and suspension injunctions have no effect whatsoever on the outcome of the case. This is because those descriptions of the legal effects do not change the fact that they exist. The descriptions are therefore not material to the decision because they are not capable of benefitting Hungary. (19) Hungary’s line of argument therefore comes to nothing.
50.      As a result, the General Court did not fail to recognise the legal effects of Article 108(3) TFEU in the context of Article 11(1) of Regulation No 659/1999.
(2)    Interpretation of Article 11(1) of Regulation No 659/1999
51.      Hungary criticises paragraph 73 of the judgment under appeal in relation to the interpretation of Article 11 of Regulation No 659/1999. In that paragraph, the General Court stated that making the adoption of a suspension injunction subject to additional substantive conditions would weaken the effectiveness of State aid control. Hungary takes the view that it is difficult to reconcile this with the case-law according to which the Commission is not automatically obliged to issue suspension injunctions where aid has not been notified in accordance with the first sentence of Article 108(3) TFEU. (20)
52.      However, it cannot be inferred from the General Court’s statements in paragraphs 73 and 112 of the judgment under appeal that the Commission is automatically obliged to issue suspension injunctions. Rather, the Commission is empowered to (‘may’) issue suspension injunctions. The Commission enjoys discretion as to whether it makes use of that empowerment.
53.      Furthermore, the General Court also interpreted Article 11(1) of Regulation No 659/1999 correctly. In paragraph 70 of the judgment under appeal, it stated that the conditions of Article 11(1) of Regulation No 659/1999 are restricted to a substantive condition and a procedural condition. Procedurally, the Commission must give the Member State concerned the possibility to submit its comments. Substantively, the Commission must provisionally classify the national measure concerned as unlawful State aid.
54.      Furthermore, in paragraph 72 of the judgment under appeal, the General Court correctly pointed out that the additional conditions for the issuing of a recovery injunction within the meaning of Article 11(2) of Regulation No 659/1999 do not apply to the issuing of suspension injunctions within the meaning of Article 11(1) of Regulation No 659/1999.
55.      This is apparent from an a contrario reading of the second paragraph compared with the first paragraph, which does not require any additional conditions. Otherwise, the legislature’s decision to subject only the issuing of interim recovery injunctions under Article 11(2) of Regulation No 659/1999 to additional conditions would be undermined.
56.      The spirit and purpose of Article 11 of Regulation No 659/1999 also support the assumption that it is only for the issuing of interim recovery injunctions by the Commission that additional conditions must be satisfied. This is because interim recovery injunctions have retrospective effect. By contrast, a suspension injunction has prospective effect. In view of the prohibition on putting the measure into effect, which already exists pursuant to the third sentence of Article 108(3) TFEU, the legal effect of Article 11(1) of Regulation No 659/1999 consists primarily of affording the Commission the possibility of bringing an action against the Member State under a simplified procedure pursuant to Article 12. This means of redress is no more than a variant of the action for a declaration of failure to fulfil Treaty obligations. (21) It enables the Commission to conduct simplified infringement proceedings to counter an increased risk of infringement by the Member State swiftly and effectively.
57.      Hungary claims that the General Court, in assuming that those conditions had in fact been met, committed an error of law in paragraphs 59 to 87 of the judgment under appeal by distorting the facts and evidence. In making that assertion, Hungary refers to the concepts of advantage and selectivity in a primarily abstract manner. However, it fails to put forward a concrete submission as to what the distortion by the General Court consists of. That claim by Hungary is therefore ineffective.
(3)    Interim conclusion
58.      In conclusion, the General Court did not therefore err in law in its assessment of the conditions of Article 11(1) of Regulation No 659/1999, with the result that the first part of the first ground of appeal must be rejected.
(b)    The Commission’s discretion (second part of the first ground of appeal)
59.      By the second part of the first ground of appeal, Hungary and the Republic of Poland challenge the General Court’s review of the Commission’s discretion.
60.      Hungary wrongly takes the view that the General Court granted the Commission an unlimited margin of discretion. However, in paragraphs 86 and 94 of the judgment under appeal, the General Court correctly stated that the EU institutions are subject to review as to whether the measures adopted by them and therefore also the issuing of suspension injunctions are in conformity with the Treaties and the general principles of law. (22)
61.      Hungary and the Republic of Poland also assert that the General Court erred in law in its review of the Commission’s discretion in any event, because it concluded that the suspension injunctions complied with the general principle of proportionality.
(1)    Necessity of the suspension injunctions
62.      In this regard, Hungary and the Republic of Poland contend that the initiation of the formal investigation procedure was available to the Commission as a measure that is less onerous than the suspension injunctions pursuant to Article 11(1) of Regulation No 659/1999 and that the General Court did not take that into account.
63.      However, in paragraph 29 of the judgment under appeal, the General Court correctly stated that the Member States are required themselves to draw the conclusion from the decision regarding the initiation of the formal investigation procedure that the implementation of a national measure is to be suspended, whereas suspension injunctions pursuant to Article 11(1) of Regulation No 659/1999 are directly – and unequivocally – binding. (23)
64.      Against that background, while limiting itself to deciding to initiate the formal investigation procedure may be a less onerous measure than issuing a suspension injunction, the Commission would be denied the opportunity to bring an action directly before the Court of Justice, if necessary, and thus to enforce the prohibition on implementation. As a result, it would therefore not act as effectively. Moreover, according to the arguments put forward by Hungary and the Republic of Poland, suspension injunctions would always be disproportionate if they were issued by the Commission at the same time as the initiation of the formal investigation procedure.
65.      It was therefore necessary to issue suspension injunctions despite the initiation of the formal investigation procedure.
(2)    Proportionality of the suspension injunctions in the context of tax law
66.      In addition, the Republic of Poland takes the view that the General Court failed to recognise that, in the present case, special circumstances were required in order for the issuing of suspension injunctions to be appropriate in the field of tax law.
67.      Contrary to the view taken by the Republic of Poland, however, no such special circumstances are required for the issuing of suspension injunctions, even in tax law.
68.      It is true that, when examining whether aid exists by virtue of general tax regimes, the Commission must take account of the fiscal autonomy of Member States. In my view, this results in a modified examination of the selective advantage. (24) However, if, on the basis of that modified examination, the Commission comes to the preliminary conclusion that unlawful aid may exist, it also has the power to issue interim suspension injunctions pursuant to Article 11(1) of Regulation No 659/1999.
69.      That is the case irrespective of whether the measure in question ultimately does actually constitute aid. (25) It is only where it is clear that no aid exists that the Commission is not permitted to issue a suspension injunction. Although it has not yet been clarified whether a progressive tax rate structure can constitute a selective advantage, (26) the possibility that aid exists has not been clearly ruled out. Moreover, Hungary did not contest the Commission’s negative decisions, which have now become final. Therefore, it is in fact clear in the present case that the measures at issue constitute aid that is not compatible with the internal market.
70.      However, when exercising its discretion to issue suspension injunctions, the Commission must take account of their specific spirit and purpose. As the General Court correctly stated in paragraph 32 of the judgment under appeal, this consists in the possibility for the Commission to bring an action under a simplified procedure pursuant to Article 12 of Regulation No 659/1999. This enables the Commission to respond to an increased risk of infringement effectively (see, in that regard, point 56 above).
(3)    The Commission’s exercise of its discretion
71.      In particular, Hungary and the Republic of Poland complain that the General Court did not correctly take account of the Commission’s earlier practice when examining the proportionality of the suspension injunctions.
72.      In paragraph 113 of the judgment under appeal, the General Court stated that the mere fact that the Commission initiated formal investigation procedures concerning tax measures in some Member States without adopting suspension injunctions, whereas, when initiating similar procedures in other Member States, it did adopt such injunctions, cannot be sufficient to establish an infringement of the principles of non-discrimination and equal treatment. In particular, Hungary has not demonstrated that the procedures referred to are comparable (paragraph 111 of the judgment under appeal).
73.      At the hearing before the Court of Justice, the Commission confirmed that it has issued only around 20 suspension injunctions since 1990. Hungary and the Republic of Poland placed this in the context of the several hundred aid procedures conducted since then.
74.      In the present case, therefore, in exercising its discretion the Commission had to take account of the fact that, in its earlier practice, it had only rarely made use of the power to issue suspension injunctions. It needs to be clear why it nevertheless decided to issue suspension injunctions here.
75.      Where the Commission issues a suspension injunction after having initiated the formal investigation procedure, it may take into account, within the scope of its discretion, the fact that the Member State is implementing the proposed measure despite an opening decision.
76.      However, if the Commission issues a suspension injunction at the same time as it initiates the formal investigation procedure, as is the case here, it exercises its discretion properly if it fears that, in view of the circumstances of the individual case, the Member State will implement the State aid measures despite the initiation of the formal investigation procedure. Moreover, the General Court also relied on this in the context of the examination of the Commission’s reasons in paragraph 136 of the judgment under appeal.
77.      In that regard, as is apparent from paragraph 81 of the judgment under appeal, the General Court took account of the fact that, four months before the adoption of the contested decisions, the Commission initiated a formal investigation procedure in relation to a tax introduced by Hungary in the advertising sector, a tax which was characterised by a progressive tax rate applicable to the turnover achieved from advertising services by media undertakings. (27) It therefore resembled the health contribution and the amended food chain inspection fee. Before and after the adoption of that decision, exchanges took place between the Commission and the Hungarian authorities.
78.      Moreover, in paragraphs 136 and 137 of the judgment under appeal, the General Court took account of the fact that, according to the file, Hungary did not suspend those tax measures despite the initiation of that procedure. Against that background, the General Court found that there was a risk that Hungary would implement the measures concerned despite the initiation of the formal investigation procedure.
79.      The General Court was able to conclude from this that the Commission had taken account of its earlier practice in the exercise of its discretion. Consequently, in this respect, too, there can be no objection to the General Court’s review of the exercise of discretion.
(4)    Interim conclusion
80.      The General Court was therefore correct in finding that the Commission had not committed any errors in the exercise of its discretion.
(c)    The Commission’s duty to state reasons (third ground of appeal)
81.      By its third ground of appeal, Hungary asserts that the General Court failed to recognise that the Commission breached its duty to state reasons pursuant to the first sentence of the second paragraph of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
82.      First, it is necessary to clarify the subject matter of the Commission’s reasoning when issuing suspension injunctions (see (1)). I will then examine whether the General Court reviewed the Commission’s reasoning without erring in law (see (2)).
(1)    Subject matter of the Commission’s duty to state reasons when issuing suspension injunctions
83.      A duty to state reasons for legal acts of the institutions is expressly provided for in the second paragraph of Article 296 TFEU. Under Article 41(2)(c) of the Charter, the right to good administration also includes the obligation of the administration to give reasons for its decisions. Article 41 of the Charter reflects a general principle of EU law, which may be relied upon by the Member States. (28)
84.      In the present case, the General Court stated, without erring in law in my opinion, that the Commission’s reasoning must refer to both conditions of Article 11(1) of Regulation No 659/1999 and – contrary to the view taken by the Commission – to its exercise of discretion.
85.      The reason for this is that, according to settled case-law, the statement of reasons required under the second paragraph of Article 296 TFEU for measures adopted by EU institutions must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. (29)
86.      As regards, first, the classification of the measure concerned as unlawful State aid, the General Court correctly stated, in paragraph 129 of the judgment under appeal, that the standard of the statement of reasons for the suspension injunction must be consistent with that required by the case-law for decisions to initiate the formal investigation procedure.
87.      Second, the General Court stated, in paragraph 133 of the judgment under appeal, that it is clear from the contested decisions that the Commission gave Hungary the opportunity to submit its comments. There can be no criticism of the reasoning in that regard.
88.      Third, the General Court correctly found, in paragraph 135 of the judgment under appeal, that the Commission’s reasoning must also refer to its exercise of discretion. In that regard, the General Court stated that the Commission must take account of the specific legal effect produced by a suspension injunction under Article 12 of Regulation No 659/1999 if the suspension injunction is inserted into a decision to initiate the formal investigation procedure.
89.      As explained in point 85 above, the spirit and purpose of the obligation to state reasons require that the issuing of a suspension injunction must make it clear why, in the Commission’s view, the Member State concerned was not going to comply with the obligation arising from Article 108(3) TFEU and suspend the implementation of the measures. This implies that the specific nature of the suspension injunction will also be taken into account in the statement of reasons. As stated above in points 56 and 70, the simplified infringement proceedings pursuant to Article 12 of Regulation No 659/1999 should be available to the Commission where there is an increased risk that the Member State will continue to apply the contested measure. A specific duty to state reasons applies in particular where, in earlier practice, taking into account its nature, a suspension injunction was only rarely issued.
(2)    The General Court’s review of the Commission’s statement of reasons
90.      Hungary and the Republic of Poland take the view that the General Court failed to recognise that the Commission did not provide reasons for its fears that Hungary would implement the national measures concerned despite the initiation of the formal investigation procedure.
91.      In that respect, in paragraph 136 of the judgment under appeal, the General Court regarded two elements as sufficient justification for the Commission’s decision to issue suspension injunctions. First, the Commission was able to rely on the fact that Hungary contested the aid character of the measures. Second, Hungary did not comment on the proposed suspension injunctions.
92.      However, those two elements do not provide sufficient justification for the Commission’s fears that, despite the initiation of the formal investigation procedure, Hungary would continue to implement the national measures concerned until that procedure was concluded. It is therefore not apparent from the contested decisions that simplified infringement proceedings might have become necessary.
93.      This is because a Member State has the legitimate right to defend itself by asserting that a measure does not constitute aid. It cannot be inferred from that that there is an increased risk that the Member State will not comply with the legal consequences of Article 108(3) TFEU. This is particularly true if a contentious legal issue is involved, as is the case here.
94.      In addition, Member States are merely given the opportunity to comment on the issuing of suspension injunctions, without being obliged to do so. It is true that, pursuant to the third subparagraph of Article 4(3) TEU, the Member States are to facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives. If a Member State does not cooperate with the Commission in that respect, the Commission may well regard that as an adverse indication. In the absence of additional circumstances, however, this would not be sufficient in isolation to justify the Commission’s fear that a Member State will not fulfil its obligations under Article 108(3) TFEU.
95.      There are other reasons which show why the judgment is not correct. In addition to the aspects mentioned by the General Court, the Commission justified the suspension injunctions in recitals 47 and 48 of the Decision on the health contribution and recitals 56 and 57 of the Decision on the amendment to the food chain inspection fee, respectively, by stating that Hungary was still granting the aid at the time the suspension injunctions were issued and this threatened to have a significant impact on competition.
96.      However, the Commission could also not have concluded from those two factors that Hungary would not comply with its obligation under the third sentence of Article 108(3) TFEU. This is because, first, the prohibition on implementation of the measure arising from the initiation of the formal investigation procedure did not exist before the suspension injunctions were issued, since the Commission issued the suspension injunctions at the same time as the formal investigation procedure was initiated. Second, the prohibition on implementation applies irrespective of the extent of the measure’s impact on competition. There is no differentiation under Article 108(3) TFEU based on the extent of the aid. Accordingly, the extent of the aid can, in principle, make no difference to a provisional measure whose sole purpose is to allow simplified infringement proceedings.
97.      As Hungary and the Republic of Poland have contended, the Commission’s reasoning in the contested decisions should instead have clarified which circumstances formed the basis of its fears that Hungary would implement the measures despite the initiation of the formal investigation procedure.
98.      As stated in point 78 above, the Commission’s file in the present case shows that Hungary had not suspended the advertising tax measures in question several months earlier, despite the initiation of the formal investigation procedure. This appears to have led the Commission to issue the suspension injunctions. Taken in isolation, that also cannot be criticised. However, that aspect of the discretion is so important that the Commission should have included it in its reasoning.
99.      Contrary to the view taken by the General Court in paragraph 137 of the judgment under appeal, that factor is also not simply part of the context in which the contested injunctions were adopted of which Hungary must have been aware. If Hungary’s previous conduct was in fact a decisive indication which led to the Commission’s fear that Hungary would implement the measure despite the initiation of the formal investigation procedure, that consideration of the Commission must be clear from the published reasoning for the suspension injunction itself. That is not the case here.
100. That is the only way of enabling, first, the addressee of the decision, second, other potential applicants and, third, the General Court to understand and review the Commission’s exercise of its discretion. Overall, it follows that the Commission’s reasoning was inadequate and the General Court erred in law in paragraph 137 et seq. of the judgment under appeal by finding that the Commission had complied with its duty to state reasons.
(3)    Interim conclusion
101. The General Court erred in law in its review of the Commission’s reasoning. The reasoning for the contested suspension injunctions does not meet the legal requirements.
(d)    Conclusion
102. The appeal by Hungary is therefore well founded.
VI.    Proceedings before the Court of Justice
103. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court and may itself give final judgment in the matter, where the state of the proceedings so permits.
104. As the statement of reasons for the suspension injunctions is unlawful, the judgment under appeal must be set aside and it must be held that the contested decisions were null and void to the extent that suspension injunctions were issued.
105. It is true that the Court of Justice has previously also annulled legal acts that were no longer applicable. (30) However, if legal acts that are no longer applicable do not continue to produce legal effects, it would not appear to be logical, strictly speaking, to annul them. In such situations, the only remaining possibility is in fact a declaration that they were void. If, as in the present case, there continues to be an interest in annulment, I therefore propose that the Court of Justice declare that the legal acts were void.
VII. Costs
106. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(1) of the Rules of Procedure, which applies to the procedure on appeal in accordance with 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. Since the Commission has been unsuccessful, it must be ordered to pay the costs.
107. Pursuant to Article 184(1) in conjunction with Article 140(1), the Republic of Poland, as an intervener, is to bear its own costs.
VIII. Conclusion
108. In view of all the foregoing considerations, I propose that the Court of Justice should:
(1)      Set aside the judgment of the General Court of 25 April 2018, Hungary v Commission (T‑554/15 and T‑555/15).
(2)      Declare that Decisions C(2015) 4805 final and C(2015) 4808 final were null and void to the extent that suspension injunctions were issued.
(3)      Order the European Commission to pay the costs of the proceedings.
(4)      Order the Republic of Poland to bear its own costs.
1      Original language: German.
2      Judgment of 25 April 2018, Hungary v Commission (T‑554/15 and T‑555/15, EU:T:2018:220).
3      C‑75/18, Vodafone Magyarország, C‑323/18, Tesco-Global Áruházak, C‑562/19 P, Commission v Poland, and C‑596/19 P, Commission v Hungary and Poland. See also my Opinion in Vodafone Magyarország (C‑75/18, EU:C:2019:492, point 136 et seq.), and my Opinion in Tesco-Global Áruházak (C‑323/18, EU:C:2019:567, point 128 et seq.).
4      Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), as amended by Council Regulation (EU) No 734/2013 of 22 July 2013 (OJ 2013 L 204, p. 15).
With effect from 14 October 2015, Regulation No 659/1999 was repealed by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).
5      Now, with almost identical wording, Article 13 of Regulation (EU) 2015/1589.
6      Commission Decisions of 15 July 2015 (State aid SA.40018 (2015/C) (ex 2014/NN), C(2015) 4808 final, and SA.41187 (2015/NN), C(2015) 4805 final), OJ 2015 C 277, p. 12 and p. 24.
7      ‘In that context, the Commission underlines that the steeply progressive character of the turnover fee is capable of having a significant impact on the competitive situation in the market’ (recitals 47 and 56, respectively, of the Commission Decisions of 15 July 2015).
8      Commission Decisions of 4 July 2016 (EU) 2016/1846 on the measure SA.41187 (2015/C) (ex 2015/NN) implemented by Hungary on the health contribution of tobacco industry businesses (notified under document C(2016) 4049) (OJ 2016 L 282, p. 43) and (EU) 2016/1846 on the measure SA.40018 (2015/C) (ex 2015/NN) implemented by Hungary on the 2014 Amendment to the Hungarian food chain inspection fee (notified under document C(2016) 4056) (OJ 2016 L 282, p. 63).
9      It is clear from the Republic of Poland’s statement in intervention, which, contrary to Article 132(2)(a) of the Rules of Procedure of the Court of Justice, does not contain any form of order sought, that the Republic of Poland supports Hungary’s grounds of appeal and thus the forms of order sought by Hungary.
10      See judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraphs 33 and 34 and the case-law cited).
11      See order of 15 February 2012, Internationaler Hilfsfonds v Commission (C‑208/11 P, not published, EU:C:2012:76, paragraph 34 and the case-law cited), and my Opinion in HX v Council (C‑423/16 P, EU:C:2017:493, point 48).
12      Judgments of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 42); of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 61); and of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 43).
13      See order of 11 October 2017, Hungary v Commission (C‑204/17 P(R), not published, EU:C:2017:751, paragraph 18).
14      See judgments of 14 February 1990, France v Commission (C‑301/87, EU:C:1990:67, paragraph 23), and of 3 July 2001, Commission v Belgium (C‑378/98, EU:C:2001:370, paragraph 24); and Opinions of Advocate General Wahl in Commission v Germany (C‑527/12, EU:C:2014:90, point 25), and of Advocate General Stix-Hackl in Italy v Commission (C‑400/99, EU:C:2001:191, point 64).
15      See judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 48 and the case-law cited).
16      Order of 11 October 2017, Hungary v Commission (C‑204/17 P(R), not published, EU:C:2017:751, paragraph 18).
17      See also, in this regard, paragraph 46 of the judgment under appeal.
18      Judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraphs 41 and 42).
19      See judgments of 6 October 2009, GlaxoSmithKline Services v Commission (C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 23 and the case-law cited), and of 21 December 2011, Iride v Commission (C‑329/09 P, not published, EU:C:2011:859, paragraph 50).
20      See judgment of 17 June 1999, Belgium v Commission (C‑75/97, EU:C:1999:311, paragraph 74 and the case-law cited).
21      Judgment of 14 February 1990, France v Commission (C‑301/87, EU:C:1990:67, paragraph 23), and Opinions of Advocate General Mengozzi in Deutsche Lufthansa (C‑284/12, EU:C:2013:442, footnote 56 in point 33) and of Advocate General Stix-Hackl in Italy v Commission (C‑400/99, EU:C:2001:191, point 65).
22      Judgments of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 44); of 26 June 2012, Poland v Commission (C‑335/09 P, EU:C:2012:385, paragraph 48); of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 91); and of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402, paragraph 35).
23      See judgment of 9 October 2001, Italy v Commission (C‑400/99, EU:C:2001:528, paragraph 60).
24      See my Opinions in Vodafone Magyarország (C‑75/18, EU:C:2019:492, point 163 et seq.), and in Tesco-Global Áruházak (C‑323/18, EU:C:2019:567, point 150 et seq.).
25      See Opinion of Advocate General Mengozzi in Deutsche Lufthansa (C‑284/12, EU:C:2013:442, point 27).
26      See the references in footnote 3.
27      Decision C(2015) 1520 of 12 March 2015 on the measure SA.39235 (2015/C) (ex 2015/NN) – Hungary – Advertisement tax (OJ 2015 C 136, p. 7).
28      See judgment of 20 December 2017, Spain v Council (C‑521/15, EU:C:2017:982, paragraph 89), and my Opinion in that case (EU:C:2017:420, point 97 and the case-law cited).
29      Judgment of 10 March 2016, HeidelbergCement v Commission (C‑247/14 P, EU:C:2016:149, paragraph 16 and the case-law cited); regarding State aid rules specifically, but also Article 253 EC, judgment of 21 July 2011, Alcoa Trasformazioni v Commission (C‑194/09 P, EU:C:2011:497, paragraph 96 and the case-law cited).
30      See, for example, judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, points 2 and 3 of the operative part of the judgment).