EN Official Journal of the European Union C 108/25

Action brought on 3 March 2006 — Budapesti Erőmű v Commission

(Case T-80/06)

(2006/C 108/46)

Language of the case: English

Parties

Applicant: Budapesti Erőmű ‘Zártkörűen Működő Részvénytársaság’ (Budapest, Hungary) [represented by: M. Powell, Solicitor, C. Arhold, K. Struckmann, lawyers]

Defendant: Commission of the European Communities

Form of order sought

— Annul the Decision of the European Commission to open the formal investigation procedure in Case State aid C 41/2005 (ex NN 49/2005) — Hungarian Stranded Costs — of 9 November 2005, or in the alternative to annul the Decision as far as the power purchase agreements concluded by the applicant are concerned;

— to award the applicant the costs of the present action;

— to take such other or further action as justice may require.

Pleas in law and main arguments

The applicant is a district heating supplier and electricity generator in Hungary. In the contested decision, the Commission decided to open a formal investigation procedure into alleged new State aid in the form of power purchase agreements concluded between Hungarian electricity generators and the public Hungarian transmission operator (1).

In support of its application, the applicant submits that the Commission lacked competence to take the contested decision. According to the applicant, it follows from Annex 4, Chapter 3, Section 1 of the Accession Treaty (2) and Article 1(b) of Council Regulation No 659/1999 (3) that the Commission only has jurisdiction over aid measures which are still applicable after the date of accession of a new Member State. The applicant submits that the power purchase agreements were concluded prior to accession and are not still applicable after accession.

The applicant furthermore submits that the Commission committed a manifest error of law and appreciation by opening the formal investigation procedure without having objective grounds for finding that the applicant's power purchase agreements contain State aid. According to the applicant, the Commission failed to assess the nature of the applicant's power purchase agreements in the light of the circumstances at the time they were concluded, made an inadequate assessment of the notion of economic advantage and of the notion of distortion of competition and impact on trade within the meaning of Article 87(1) EC.

The applicant also submits that the Commission has erred in finding that the power purchase agreements contain new aid, as they were concluded prior to the opening of the Hungarian electricity market.

Finally, the applicant claims that the contested decision's reasoning is inadequate.

(1) State aid — Hungary — State aid No C 41/2005 (ex NN 49/2005) — Hungarian Stranded Costs — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (Text with EEA relevance) (OJ 2005 C 324, p. 12)

(2) Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded - Annex IV: List referred to in Article 22 of the Act of Accession - 3. Competition policy (OJ 2003 L 236, p. 797)

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ L 83, p. 1)