Case C‑357/14 P

Electrabel SA

and

Dunamenti Erőmű Zrt.

v

European Commission

‛Appeal — State aid — Aid granted by the Hungarian authorities to certain electricity generators — Power purchase agreements concluded between a public undertaking and certain electricity generators — Decision declaring that aid incompatible with the common market and ordering its recovery — Meaning of ‘party’ capable of bringing an appeal before the Court — Accession of Hungary to the European Union — Date relevant to the assessment of the existence of aid — Concept of State aid — Advantage — Private investor test — Methodology for calculating the amount of aid’

Summary — Judgment of the Court (Third Chamber) 1 October 2015

State aid — Recovery of unlawful aid — Calculation of the amount to be repaid — Method of calculation applied by the Commission, based on revenue and not on profits, more suitable to ensure that beneficiary forfeits the advantage obtained through the aid

State aid — Concept — Assessment according to the private investor test — Assessment in the light of all the evidence relevant to the transaction at issue and its context — Taking account of information available and developments foreseeable at the time when the decision concerning the measure at issue was taken

State aid — Provisions of the Treaty — Scope ratione temporis — Accession of new Member States to the European Union — Act of Accession — Application of provisions concerning State aid from the date of accession and solely in the light of situations obtaining after that date

Appeal — Grounds — Inadequate statement of reasons — Reliance by the General on implied reasoning — Lawfulness — Conditions — Whether General Court is obliged to determine the existence of aid before examining the classification of the measure at issue as existing aid — Not obliged — Scope of the obligation to state reasons

Appeal — Party which has been unsuccessful in its submissions at first instance — Meaning — Undertaking which did not make such submissions but belonging to the same group of undertakings as an undertaking that was a party to the proceedings at first instance — Not included — Inadmissibility — Whether the principles of free access to justice and good administration infringed — No infringement

Pursuant to the second paragraph of Article 56 of the Statute of the Court of Justice, an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. The fact that an undertaking which did not make submissions at first instance may have been a member of a group of undertakings one of which was a party to the proceedings at first instance cannot be sufficient ground to confer on the former the status of a ‘party’, within the meaning of that provision. That interpretation does not infringe the right of that undertaking to access to justice or the principle of good administration. On the contrary, the purpose of circumscribing the category of persons capable of bringing an appeal before the Court in a given case, as laid down in Article 56 of the Statute, is precisely to safeguard the proper administration of justice, not least by ensuring a degree of foreseeability in the appeals which can be brought against decisions of the General Court and by avoiding the circumvention of time-limits and conditions of admissibility which apply to other legal remedies provided for by EU law. (see paras 29, 30)

The Courts of the European Union have the freedom to structure and to expound their reasoning in whatever way they deem necessary for the purposes of responding to the pleas raised before them. Accordingly, the way in which the General Court chooses to structure and reason its response are not open to challenge, in the context of an appeal, through claims seeking to establish that the General Court should have undertaken its analysis in the manner expected by an applicant. It is open to the Courts of the European Union to determine whether a measure constitutes State aid only after having examined whether, if that was the case, the aid flowing from that measure had to be classified as existing aid. A complaint cannot be made that the General Court failed to state sufficient reasons as regards the classification of such a measure as new aid, by reason solely of the fact that the General Court relied on the assumption that there was State aid for the purposes of that analysis, where the General Court thereafter undertook a comprehensive examination of the arguments concerning the existence of State aid. (see paras 36, 38, 41)

The EU rules in relation to State aid became mandatory in the new Member States on the date of their accession to the European Union. The question of the determination of the relevant date for assessment, under Article 87(1) EC, of a State measure adopted in a new Member State before the date of its accession to the European Union and still applicable after that date has to be examined in the light of the Act of Accession of that Member State. The States which were members of the European Union before that date wanted to protect the internal market against measures containing State aid, which had been introduced in the candidate countries before their accession to the European Union and which could potentially distort competition, by making those measures subject, as from the date of accession, to the rules relating to new aid, if those measures did not come within the exceptions specifically listed in Chapter 3 of Annex IV to that Act of Accession. Moreover, it follows from the wording of Article 1(b)(v) of Regulation No 659/1999 laying down detailed rules for the application of Article 93 EC and, in particular, the first part of that provision, that a measure of State support which did not constitute State aid at the time when it was put into effect can subsequently become State aid. The effect of any other conclusion would be to render meaningless the objective pursued by the authors of the Accession Treaty. If it was accepted that the relevant date was the date of adoption of the measure, the consequence would be that the Commission would not have the power to review, in the case of a Member State, which acceded to the European Union on 1 May 2004, any measure adopted before that date which did not constitute State aid at the time of its adoption but which, subsequently, became State aid and remains so after that date. (see paras 58, 60-62, 65)

With respect to State aid, as regards the application of the private market economy investor test, where the Commission examines whether a State acted as a shareholder and whether, therefore, the private investor test is applicable in the circumstances of the case, it is for the Commission to carry out a global assessment, taking into account, in addition to the evidence provided by that Member State, all other relevant evidence enabling it to determine whether the Member State took the measure in question in its capacity as shareholder or as a public authority. The nature and subject-matter of that measure may be relevant in that regard, as may its context, the objective pursued and the rules to which the measure is subject. Further, where the Commission is determining whether the conditions governing applicability and application of the private investor test are met, it cannot refuse to examine relevant information provided by the Member State concerned unless the evidence produced has been established after the adoption of the decision to make the investment in question. For the purposes of applying the private investor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to make the investment was taken. That is especially so where the Commission is examining whether there is State aid in relation to an investment which was not notified to it and which, at the time when the Commission carries out its examination, has already been made by the Member State concerned. Information relating to events which fall within the period prior to the date of adoption of a State measure and which are available on that date may prove to be relevant to the extent that that information may shed light on the question of whether that measure constitutes an advantage, for the purposes of Article 87(1) EC. (see paras 102, 103, 105)

See the text of the judgment. (see paras 108, 118)

See the text of the judgment. (see paras 110, 111)

See the text of the judgment. (see paras 112, 113)