Judgment of the General Court (Sixth Chamber) of 30 April 2014 — Dunamenti Erőmű v Commission

(Case T‑179/09)

‛State aid — Aid awarded by the Hungarian authorities to certain electricity generators — Power purchase agreements concluded between a public undertaking and certain electricity generators — Decision declaring the State aid incompatible with the common market and ordering its recovery — Concept of State aid — Advantage — New aid — Operating aid — Legitimate expectations — Legal certainty’

1. State aid — Compatibility of the aid with the common market — Accession of a new Member State to the European Union — Relevant date for assessment of the compatibility of a measure with the common market (Art. 87(1) EC) (see paras 54, 61, 77)

2. State aid — Existing aid and new aid — Accession of a new Member State to the European Union — Distinction by reference to the specific rules established in Annex IV of the Act of Accession — Possibility of classifying as new aid a measure not initially constituting State aid — Advantageous conditions granted to certain Hungarian electricity producers — Classification as new aid (Arts 87(1) EC and 88(1) and (3) EC; 2003 Act of Accession, Annex IV; Council Regulation No 659/1999, Art. 1) (see paras 54, 55, 57, 58, 60, 62-66)

3. State aid — Concept — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits — Long-term power purchase agreements guaranteeing electricity producers a minimum purchase quantity at a price covering fixed, variable and capital costs — Inclusion (Art. 87(1) EC) (see paras 76, 81, 82, 86-89, 91, 93, 94)

4. State aid — Provisions of the Treaty — Scope ratione temporis — Accession of Hungary to the European Union — Act of Accession — Application of provisions on State aid as from the date of accession and solely in regard to situations arising as from that date — Infringement of the principles of the protection of legitimate expectations and legal certainty — None (Arts 87 EC and 88 EC; 2003 Act of Accession) (see paras 100, 101, 104, 105)

5. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Operating aid — Exclusion (Art. 87(3)(a) and (c) EC; Commission Notice 2006/C 54/13) (see paras 141, 142)

6. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Possible for the Commission to leave to national authorities the task of calculating the exact amount to be recovered — Indication of a repayment methodology in the final decision — Calculation of the amount to be recovered on the basis of a market simulation — Obligation on the Commission to make a careful and impartial examination of all the relevant factors (Arts 10 EC and 88 EC; Council Regulation No 659/1999) (see paras 165, 168, 169, 175-177, 187, 188, 191, 192, 198, 199, 214)

7. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Possible for the Commission to leave to national authorities the task of calculating the exact amount to be recovered — Indication of a repayment methodology in the final decision — No obligation on the Commission first to consult interested third parties (Art. 88 EC; Council Regulation No 659/1999, Arts 6, 7 and 20(1)) (see paras 178, 218)

Re:

APPLICATION for, in essence, the annulment of Commission Decision 2009/609/EC of 4 June 2008 on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements (OJ 2009 L 225, p. 53) and, in the alternative, the annulment of Articles 2 and 5 of that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders Dunamenti Erőmű Zrt. to bear its own costs and to pay those incurred by the European Commission.

Judgment of the General Court (Sixth Chamber) of 30 April 2014 — Dunamenti Erőmű v Commission

(Case T‑179/09)

‛State aid — Aid awarded by the Hungarian authorities to certain electricity generators — Power purchase agreements concluded between a public undertaking and certain electricity generators — Decision declaring the State aid incompatible with the common market and ordering its recovery — Concept of State aid — Advantage — New aid — Operating aid — Legitimate expectations — Legal certainty’

1. State aid — Compatibility of the aid with the common market — Accession of a new Member State to the European Union — Relevant date for assessment of the compatibility of a measure with the common market (Art. 87(1) EC) (see paras 54, 61, 77)

2. State aid — Existing aid and new aid — Accession of a new Member State to the European Union — Distinction by reference to the specific rules established in Annex IV of the Act of Accession — Possibility of classifying as new aid a measure not initially constituting State aid — Advantageous conditions granted to certain Hungarian electricity producers — Classification as new aid (Arts 87(1) EC and 88(1) and (3) EC; 2003 Act of Accession, Annex IV; Council Regulation No 659/1999, Art. 1) (see paras 54, 55, 57, 58, 60, 62-66)

3. State aid — Concept — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits — Long-term power purchase agreements guaranteeing electricity producers a minimum purchase quantity at a price covering fixed, variable and capital costs — Inclusion (Art. 87(1) EC) (see paras 76, 81, 82, 86-89, 91, 93, 94)

4. State aid — Provisions of the Treaty — Scope ratione temporis — Accession of Hungary to the European Union — Act of Accession — Application of provisions on State aid as from the date of accession and solely in regard to situations arising as from that date — Infringement of the principles of the protection of legitimate expectations and legal certainty — None (Arts 87 EC and 88 EC; 2003 Act of Accession) (see paras 100, 101, 104, 105)

5. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Operating aid — Exclusion (Art. 87(3)(a) and (c) EC; Commission Notice 2006/C 54/13) (see paras 141, 142)

6. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Possible for the Commission to leave to national authorities the task of calculating the exact amount to be recovered — Indication of a repayment methodology in the final decision — Calculation of the amount to be recovered on the basis of a market simulation — Obligation on the Commission to make a careful and impartial examination of all the relevant factors (Arts 10 EC and 88 EC; Council Regulation No 659/1999) (see paras 165, 168, 169, 175-177, 187, 188, 191, 192, 198, 199, 214)

7. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Possible for the Commission to leave to national authorities the task of calculating the exact amount to be recovered — Indication of a repayment methodology in the final decision — No obligation on the Commission first to consult interested third parties (Art. 88 EC; Council Regulation No 659/1999, Arts 6, 7 and 20(1)) (see paras 178, 218)

Re:

APPLICATION for, in essence, the annulment of Commission Decision 2009/609/EC of 4 June 2008 on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements (OJ 2009 L 225, p. 53) and, in the alternative, the annulment of Articles 2 and 5 of that decision.

Operative part

The Court:

1. Dismisses the action;