Case C‑15/14 P

European Commission

v

MOL Magyar Olaj- és Gázipari Nyrt.

‛Appeal — State aid — Agreement between Hungary and the oil and gas company MOL relating to mining fees in connection with the extraction of hydrocarbons — Subsequent amendment to the statutory rules increasing the rate of the fees — Increase in fees not applied to MOL — Decision declaring the aid incompatible with the common market — Selective nature’

Summary — Judgment of the Court (First Chamber), 4 June 2015

In relation to State aid, the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show that the measure, in particular, creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others. However, the selectivity requirement differs depending on whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity. (see paras 59, 60)

In relation to State aid, there is a fundamental difference between, on the one hand, the assessment of the selectivity of general schemes for exemption or relief, which, by definition, confer an advantage, and, on the other, the assessment of the selectivity of optional provisions of national law prescribing the imposition of additional charges. In cases in which the national authorities impose such charges in order to maintain equal treatment between operators, the simple fact that those authorities enjoy discretion defined by law, and not unlimited, cannot be sufficient to establish that the corresponding scheme is selective. In that regard, first, a margin of assessment which allows the fixing of an additional charge imposed on economic operators in order to take account of the imperatives arising from the principle of equal treatment can be distinguished, by its very nature, from cases in which the exercise of such a margin is connected with the grant of an advantage in favour of a specific economic operator. Secondly, the fact that the rates of a mining fee for the extraction of hydrocarbons, crude oil and natural gas set by year of validity of an extension agreement for the mining rights of an undertaking, concluded by that undertaking and the authorities of a Member State, are the result of negotiation does not suffice to confer on that agreement a selective character. The situation would have been different only if the national authorities had exercised their margin of assessment in such a way as to favour that undertaking by agreeing to a low fee level without any objective reason having regard to the rationale of increasing fees in the event of an extension of authorisation and to the detriment of any other operator having sought to extend its mining rights. (see paras 64-66)

Although a particular aid scheme cannot be cleared of being selective solely on the ground that the beneficiaries are selected on the basis of objective criteria, the fact that an undertaking is the only undertaking to have concluded with the national authorities an extension agreement in the hydrocarbons sector does not necessarily constitute evidence of selectivity, since the criteria for concluding such an agreement are objective and applicable to any potentially interested operator, and the absence of other agreements may result from decisions by undertakings themselves not to apply for an extension of mining rights. (see paras 76, 77)