JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

12 July 2018 ( *1 )

(State aid — Aid planned by the United Kingdom in favour of Hinkley Point C nuclear power station — Contract for Difference, Secretary of State Agreement and Credit Guarantee — Decision declaring the aid compatible with the internal market — Article 107(3)(c) TFEU — Public interest objective — Promotion of nuclear energy — Need for State intervention — Guarantee Notice — Determination of the aid element — Proportionality — Investment aid — Operating aid — Right to submit observations — Public procurement procedure — Obligation to state reasons)

In Case T‑356/15,

Republic of Austria, represented initially by C. Pesendorfer and M. Klamert, and subsequently by G. Hesse and M. Fruhmann, acting as Agents, and by H. Kristoferitsch, lawyer,

applicant,

supported by

Grand Duchy of Luxembourg, represented by D. Holderer, acting as Agent, and by P. Kinsch, lawyer,

intervener,

v

European Commission, represented by É. Gippini Fournier, R. Sauer, T. Maxian Rusche and P. Němečková, acting as Agents,

defendant,

supported by

Czech Republic, represented by M. Smolek, T. Müller and J. Vláčil, acting as Agents,

by

French Republic, represented initially by G. de Bergues, D. Colas and J. Bousin, and subsequently by D. Colas and J. Bousin, acting as Agents,

by

Hungary, represented initially by M. Fehér and M. Bóra, subsequently by B. Sonkodi, then by A. Steiner, acting as Agents, and by P. Nagy, lawyer, and finally by A. Steiner,

by

Republic of Poland, represented by B. Majczyna, acting as Agent,

by

Romania, represented initially by R. Radu and M. Bejenar, and subsequently by M. Bejenar and C.‑R. Canţăr, acting as Agents,

by

Slovak Republic, represented by B. Ricziová, acting as Agent,

and by

United Kingdom of Great Britain and Northern Ireland, represented initially by C. Brodie and S. Brandon, subsequently by C. Brodie, S. Simmons and M. Holt, then by C. Brodie, S. Simmons and D. Robertson, then by C. Brodie and D. Robertson, then by C. Brodie, and finally by C. Brodie and Z. Lavery, acting as Agents, and by T. Johnston, Barrister, and A. Robertson QC,

interveners,

APPLICATION under Article 263 TFEU for annulment of Commission Decision (EU) 2015/658 of 8 October 2014 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station (OJ 2015 L 109, p. 44), in which the Commission found that that State aid measure was compatible with the internal market within the meaning of Article 107(3)(c) TFEU and authorised its implementation,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias, President, A. Dittrich (Rapporteur) and P.G. Xuereb, Judges,

Registrar: N. Schall, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 October 2017,

gives the following

Judgment

I. Background to the dispute

1 On 22 October 2013, the United Kingdom of Great Britain and Northern Ireland notified measures in support of the Hinkley Point C nuclear power station (‘Hinkley Point C’). The beneficiary of the notified measures is NNB Generation Company Limited (‘NNBG’), a subsidiary of EDF Energy plc (‘EDF’).

2 On 18 December 2013, the European Commission decided to initiate a formal investigation procedure in respect of the measures notified. That decision was published in the Official Journal of the European Union on 7 March 2014 (OJ 2014 C 69, p. 60).

3 On 8 October 2014, the Commission adopted Decision (EU) 2015/658 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station (OJ 2015 L 109, p. 44; ‘the contested decision’).

4 The measures notified by the United Kingdom are described in Section 2 of the contested decision.

5 The first notified measure, which is described in Section 2.1 of the contested decision, is a contract for difference (‘the Contract for Difference’). This is an instrument that is intended to ensure price stability for electricity sales by NNBG during the operational phase of Hinkley Point C. It is envisaged that NNBG will sell the electricity produced in that reactor on the market. However, the amount of NNBG’s revenues will be stabilised by the Contract for Difference. To that end, the strike price, which has been calculated on the basis of NNBG’s projected construction and operating costs, including a reasonable profit, will be compared to the reference price, which corresponds to the weighted average of wholesale prices which the United Kingdom sets for all operators supported by a contract for difference and which reflects market prices. In the case of NNBG, the relevant reference price is the baseload market reference price, which applies to all baseload generation operators. When the reference price is lower than the strike price, NNBG will receive a difference payment corresponding to the difference between those two prices. That right to a difference payment will be limited by a maximum output cap. By contrast, when the reference price is higher than the strike price, NNBG will be obliged to pay the difference between those two prices to the other party to the Contract for Difference (‘NNBG’s contracting partner’). That contracting partner will be Low Carbon Contracts Company Ltd, an entity that is to be funded through a statutory obligation on all the licensed electricity suppliers collectively. There will be two ‘gain-share’ mechanisms, the first of which concerns the costs of production, and the second, the rate of return on equity. There will be two operating costs reopener dates, the first of which will be 15 years after, and the second, 25 years after, the date on which the first reactor is brought into service.

6 The Contract for Difference provides, under certain conditions, for compensation for NNBG for certain legislative changes. It will, moreover, under certain conditions, receive compensation in the event of the early shutdown of Hinkley Point nuclear power station on political grounds and in the event of problems related to nuclear third party liability insurance. In those circumstances, both NNBG’s investors and the United Kingdom will be able to call for the transfer of NNBG to the United Kingdom (‘UK’) Government and compensation will be payable to those investors.

7 The second notified measure, which is described in Section 2.3 of the contested decision, is an agreement between the United Kingdom’s Secretary of State for Energy and Climate Change and NNBG’s investors (‘the Secretary of State Agreement’). That agreement supplements the Contract for Difference. It provides that if, following an early shutdown of Hinkley Point nuclear power station on political grounds, NNBG’s contracting partner were to default on compensatory payments to NNBG’s investors, the Secretary of State in question will pay the agreed compensation to the investors. It also provides for gain-share mechanisms.

8 The third notified measure, which is described in Section 2.2 of the contested decision, is a credit guarantee by the United Kingdom on bonds to be issued by NNBG, guaranteeing the timely payment of principal and interest of qualifying debt, which may reach up to 17 billion pounds sterling (GBP). The level of the guarantee fee authorised by the Commission in that decision is 295 basis points.

9 In Section 7 of the contested decision, the Commission stated that the three notified measures referred to above (‘the measures at issue’) constituted State aid within the meaning of Article 107(1) TFEU.

10 In Sections 9 and 10 of the contested decision, the Commission considered whether the measures at issue could be declared compatible with the internal market pursuant to Article 107(3)(c) TFEU. In that context, in Section 9.1 of that decision, it stated that those measures were compatible with existing market regulation. In Section 9.2 of that decision, it found that the public interest objective which the United Kingdom was pursuing through those measures was the promotion of nuclear energy and, more specifically, the creation of new nuclear energy generating capacity. According to the considerations which the Commission set out in Section 9.3 of that decision, UK intervention was necessary in order to achieve that objective in sufficient time. In Section 9.4 of the decision in question, the Commission assessed whether the measures at issue were appropriate instruments for achieving that objective and whether they had an incentive effect. In Sections 9.5 and 9.6 of the decision, it examined the proportionality of the measures at issue and found that, subject to an adjustment of the credit guarantee fee rate to 295 basis points and amendment of the gain-share mechanism, the measures at issue had to be regarded as being necessary and that, overall, the potential for distortion of competition was limited and that the negative effects of the measures at issue were offset by their positive effects. On the basis of those considerations, the Commission concluded, in Section 10 of the contested decision, that the measures at issue were compatible with the internal market pursuant to Article 107(3)(c) TFEU.

11 The first paragraph of Article 1 of the contested decision is worded as follows: ‘Aid to Hinkley Point C in the form of a Contract for Difference, the Secretary of State Agreement and a Credit Guarantee, as well as all related elements, which the UK is planning to implement, is compatible with the internal market within the meaning of Article 107(3)(c) [TFEU].’

II. Procedure before the General Court and forms of order sought

12 The Republic of Austria brought the present action by application lodged at the General Court Registry on 6 July 2015.

13 On 18 September 2015, the Commission lodged its defence.

14 On 5 November 2015, the Republic of Austria lodged its reply.

15 On 15 January 2016, the Commission lodged its rejoinder.

16 By document lodged at the Court Registry on 9 November 2015, the Slovak Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 9 December 2015, the Slovak Republic was granted leave to intervene in support of the form of order sought by the Commission. On 14 March 2016, it lodged its statement in intervention.

17 By document lodged at the Court Registry on 20 November 2015, the Grand Duchy of Luxembourg applied for leave to intervene in the present proceedings in support of the form of order sought by the Republic of Austria. By decision of the President of the Chamber of 18 December 2015, the Grand Duchy of Luxembourg was granted leave to intervene in support of the form of order sought by the Republic of Austria. On 24 March 2016, it lodged its statement in intervention.

18 By document lodged at the Court Registry on 25 November 2015, Hungary applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 6 January 2016, Hungary was granted leave to intervene in support of the form of order sought by the Commission. On 24 March 2016, it lodged its statement in intervention.

19 By document lodged at the Court Registry on 26 November 2015, the United Kingdom applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 6 January 2016, the United Kingdom was granted leave to intervene in support of the form of order sought by the Commission. On 23 March 2016, it lodged its statement in intervention.

20 By document lodged at the Court Registry on 30 November 2015, the French Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 11 January 2016, the French Republic was granted leave to intervene in support of the form of order sought by the Commission. On 18 March 2016, it lodged its statement in intervention.

21 By document lodged at the Court Registry on 2 December 2015, the Czech Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 11 January 2016, the Czech Republic was granted leave to intervene in support of the form of order sought by the Commission. On 24 March 2016, it lodged its statement in intervention.

22 By document lodged at the Court Registry on 3 December 2015, the Republic of Poland applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 11 January 2016, the Republic of Poland was granted leave to intervene in support of the form of order sought by the Commission. On 24 March 2016, it lodged its statement in intervention.

23 By document lodged at the Court Registry on 3 December 2015, Romania applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of the President of the Chamber of 11 January 2016, Romania was granted leave to intervene in support of the form of order sought by the Commission. On 24 March 2016, it lodged its statement in intervention.

24 On 21 July 2016, the Republic of Austria submitted its observations on the statements in intervention of the Czech Republic, the French Republic, Hungary, the Republic of Poland, Romania, the Slovak Republic and the United Kingdom.

25 On 19 July 2016, the Commission submitted its observations on the statement in intervention of the Grand Duchy of Luxembourg.

26 On a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure of the General Court, put questions to the Republic of Austria, the United Kingdom and the Commission in writing. Those parties answered the questions within the prescribed period.

27 On 14 September 2017, the Commission offered evidence and enclosed a document. That offer of evidence and that document were placed on the file and the other parties were given the opportunity to submit their observations on them.

28 By letters of 18 and 28 September 2017, the Slovak Republic and the United Kingdom lodged observations on the report for the hearing.

29 The Commission, the Czech Republic, the French Republic, the Grand Duchy of Luxembourg, Hungary, the Republic of Austria and the United Kingdom presented oral argument and replied to the questions put by the Court at the hearing on 5 October 2017.

30 The Grand Duchy of Luxembourg and the Republic of Austria claim that the Court should: – annul the contested decision; – order the Commission to pay the costs.

31 The Commission contends that the Court should: – dismiss the action as unfounded; – order the Republic of Austria to pay the costs.

32 The Czech Republic and the Slovak Republic contend that the Court should: – dismiss the action as unfounded; – order the Republic of Austria to pay the costs.

33 Hungary contends that the Court should: – dismiss the action as unfounded; – order the Republic of Austria to pay all the costs of the present proceedings, including the administrative costs and legal fees.

34 The French Republic, the Republic of Poland, Romania and the United Kingdom contend that the Court should: – dismiss the action as unfounded.

III. Law

35 The action is based on 10 pleas in law.

36 By the first plea, the Republic of Austria claims that the Commission erred in accepting the existence of a market separate from the nuclear energy market and, moreover, in relying on a failure of that market.

37 The second plea relates to the allegedly erroneous nature of the Commission’s finding that the technology used in Hinkley Point C is new.

38 The third plea alleges that the Commission erred in finding that the measures at issue constituted investment aid. According to the Republic of Austria, those measures constitute operating aid that is incompatible with the internal market.

39 By the fourth plea, the Republic of Austria claims that, contrary to the Commission’s assertion, the construction of Hinkley Point C is not intended to meet an objective of ‘common’ interest.

40 In the context of the fifth plea, the Republic of Austria maintains that the Commission has not sufficiently determined the aid elements contained in the measures at issue.

41 The sixth plea is aimed at establishing that the Commission’s conclusion that the measures at issue were consistent with the principle of proportionality was wrong.

42 In the context of the seventh plea, the Republic of Austria submits that the United Kingdom should have initiated a public procurement procedure in respect of Hinkley Point C.

43 By the eighth plea, the Republic of Austria submits that the Commission failed to comply with its Notice on the application of Articles [107] and [108] of the [FEU] Treaty to State aid in the form of guarantees (OJ 2008 C 155, p. 10; ‘the Guarantee Notice’).

44 The ninth plea alleges infringement of the obligation to state reasons.

45 The 10th plea covers infringement of the right to be heard.

46 In the context of the present action, the Republic of Austria queries the Commission’s conclusion that the measures at issue could be declared compatible with the internal market within the meaning of Article 107(3)(c) TFEU.

47 According to Article 107(3)(c) TFEU, aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, may be considered to be compatible with the internal market.

48 As is apparent from the case-law, in order to be capable of being declared compatible with the internal market pursuant to Article 107(3)(c) TFEU, aid must be aimed at the development of an activity that constitutes a public interest objective and must be appropriate, necessary and not disproportionate (see, to that effect, judgment of 15 June 2010, Mediaset v Commission, T‑177/07, EU:T:2010:233, paragraph 125).

49 In the light of Article 107(3)(c) TFEU, it is appropriate, first, to examine the fourth plea, which concerns the public interest objective established by the United Kingdom, namely the promotion of nuclear electricity and, more specifically, the construction of new nuclear energy generating capacity, before going on to analyse the second plea, relating in particular to the allegedly erroneous nature of the Commission’s finding that the technology used in Hinkley Point C was new, then the first plea, alleging that the Commission made mistakes in relation to the definition of the relevant market and wrongly found that there was a market failure, and the fifth and eighth pleas, alleging insufficient determination of the measures at issue and a failure to comply with the Guarantee Notice, and, finally, the sixth plea, concerning the principle of proportionality.

50 The third plea, alleging that the measures at issue constitute operating aid incompatible with the internal market, will be analysed taking the outcome of the examination of those pleas into account.

51 The Court will then examine the seventh plea, alleging that the United Kingdom should have initiated a public procurement procedure in respect of Hinkley Point C, and the 10th plea, alleging infringement of the right to be heard.

52 The ninth plea, which alleges infringement of the obligation to state reasons, is in six parts, covering the Commission’s findings the validity of which is called in question in the context of the first to sixth pleas. Those parts will be examined in conjunction with the associated pleas.

53 Before examining the pleas put forward by the Republic of Austria, it is necessary, however, to rule on its arguments as to the inadmissibility of the statement in intervention submitted by Hungary.

A. The arguments alleging that the statement in intervention submitted by Hungary is inadmissible

54 The Republic of Austria claims that Hungary’s statement in intervention must be rejected as inadmissible. In its view, a statement in intervention must be limited to supporting the form of order sought by one of the main parties. It submits that Hungary was granted leave to intervene in support of the form of order sought by the Commission, which is seeking to have the application for annulment of the contested decision dismissed, and that that decision is based on Article 107 TFEU. Yet Hungary argues in its statement in intervention that Article 107 TFEU does not apply to the field of atomic energy. According to the Republic of Austria, if those arguments were to be accepted, they would lead to the contested decision being annulled. Accordingly, Hungary is not supporting the form of order sought by the Commission.

55 In that regard, it should be borne in mind that, in accordance with the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 142 of the Rules of Procedure, the intervention is to be limited to supporting, in whole or in part, the form of order sought by one of the main parties. Those provisions do not, however, preclude the intervener from using arguments which differ from those of the party which it supports, provided that those arguments do not alter the framework of the dispute and that the intervention is still intended to support the form of order sought by that party (see, to that effect, judgment of 8 June 1995, Siemens v Commission, T‑459/93, EU:T:1995:100, paragraph 21).

56 As regards the statement in intervention submitted by Hungary, in the first place, it should be noted that the form of order sought by Hungary is in line with that sought by the Commission, since it seeks to have the Republic of Austria’s application for annulment of the contested decision dismissed.

57 In the second place, it is apparent from Hungary’s statement in intervention that Hungary does not dispute the fact that, in the circumstances of this case, the Commission was entitled to adopt the contested decision on the basis of Article 107 TFEU.

58 In those circumstances, even if some of the arguments advanced by Hungary concerning the Commission’s power to adopt decisions based on Articles 107 and 108 TFEU in the field of nuclear energy must be regarded as altering the framework of the dispute, that would not, contrary to the Republic of Austria’s contentions, justify the dismissal, for inadmissibility, of Hungary’s statement in intervention in its entirety.

B. Fourth plea, alleging that the promotion of nuclear energy does not constitute an objective of ‘common’ interest, and fifth part of the ninth plea in law, alleging an insufficient statement of reasons for the contested decision

59 The fourth plea and the fifth part of the ninth plea concern the Commission’s finding in recitals 366 to 374 of the contested decision that the objective being pursued by the United Kingdom through the measures at issue, that is, the objective of promoting nuclear energy, constitutes an objective of ‘common’ interest.

60 First of all, the Court will examine the arguments put forward by the Republic of Austria under the fifth part of the ninth plea and which seek to establish that the statement of reasons for the contested decision is insufficient with regard to the finding that the objective being pursued by the United Kingdom through the measures at issue constitutes an objective of ‘common’ interest. The Court will then go on to analyse the arguments advanced by the Grand Duchy of Luxembourg and the Republic of Austria in support of the fourth plea and which seek to challenge the merits of the Commission’s considerations in recitals 366 to 374 of the contested decision.

1. Fifth part of the ninth plea, alleging that the statement of reasons for the contested decision is insufficient

61 In the context of the fifth part of the ninth plea, the Republic of Austria submits that the statement of reasons for the contested decision is not sufficient as regards the finding that the objective being pursued by the United Kingdom through the measures at issue constitutes an objective of ‘common’ interest in so far as, in that decision, the Commission did not sufficiently explain the relationship between the provisions of the Euratom Treaty and the rules on State aid laid down in the FEU Treaty. It claims that the Commission’s considerations in that regard are incomprehensible and inadequate.

62 The Commission contests that argument.

63 In that regard, as a preliminary point, it should be borne in mind that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (judgment of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 137). The requirements to be satisfied by the statement of reasons depend on 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 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 (judgment of 11 July 2014, DTS Distribuidora de Televisión Digital v Commission, T‑533/10, EU:T:2014:629, paragraph 199).

64 It is in the light of that case-law that the Court must examine whether the statement of reasons for the contested decision, as regards the finding that the objective being pursued by the United Kingdom through the measures at issue constitutes an objective of ‘common’ interest, is sufficient.

65 In that regard, in the first place, it should be noted that, admittedly, in recitals 366 to 374 of the contested decision, the Commission did not expressly comment on the relationship between the provisions of the Euratom Treaty and Article 107 TFEU. However, it must be pointed out that it is apparent notably from Section 7 of that decision, entitled ‘Existence of State aid’, that the Commission found that Article 107 TFEU was applicable to the measures at issue. It should also be pointed out that, in Section 9.2 of that decision, entitled ‘Objectives of common interest’, the Commission based its finding that the promotion of nuclear energy constituted an objective of ‘common’ interest notably on Article 2(c) and Article 40 of the Euratom Treaty. It is therefore apparent from the latter section that the Commission found that, in the context of the application of Article 107(3)(c) TFEU, it was appropriate to take the provisions of the Euratom Treaty into account.

66 In the second place, it must be recalled that account should be taken of the context of the contested decision, which includes the Commission’s previous practice, of which the Member States are deemed to be aware. The approach taken by the Commission in that decision is consistent with its previous practice, according to which the measures of a Member State relating to the field governed by the Euratom Treaty also had to be examined in the light of Article 107 TFEU given that they were not necessary for or went beyond the objectives of the Euratom Treaty or distorted or threatened to distort competition in the internal market (see, in that regard, Commission Decision 2005/407/EC of 22 September 2004 on the State aid which the United Kingdom is planning to implement for British Energy plc (OJ 2005 L 142, p. 26, recital 239)) and according to which an objective covered by the Euratom Treaty could constitute a public interest objective for the purposes of Article 107(3)(c) TFEU (see, to that effect, Commission Decision 2006/643/EC of 4 April 2006 on the State Aid which the United Kingdom is planning to implement for the establishment of the Nuclear Decommissioning Authority (OJ 2006 L 268, p. 37, recital 162)).

67 Having regard to those points, it must be concluded that it is sufficiently clear from the grounds of the contested decision that the Commission considered that, even though the measures at issue related to nuclear energy, in so far as they constituted State aid, it was appropriate to assess their compatibility with the internal market in accordance with Article 107(3)(c) TFEU. It is also sufficiently clear from those grounds that the Commission considered that, in the context of the application of that provision, notably as regards the characterisation of the promotion of nuclear energy as a public interest objective for the purposes of that provision, it was necessary to take the provisions of the Euratom Treaty into account. Those grounds thus enabled the Republic of Austria to ascertain the reasons for that decision and enable the Court to exercise its power of review.

68 Accordingly, the fifth part of the ninth plea, alleging infringement of the obligation to state reasons, must be rejected.

2. Fourth plea, relating to the merits of the Commission’s considerations

69 The Republic of Austria and the Grand Duchy of Luxembourg put forward arguments challenging the merits of the Commission’s considerations in recitals 366 to 374 of the contested decision. In essence, they maintain that, contrary to the Commission’s findings, the promotion of nuclear energy is not consonant with any common interest.

70 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, Romania, the Slovak Republic and the United Kingdom contest those arguments.

71 Before examining the arguments of the Republic of Austria and the Grand Duchy of Luxembourg challenging the Commission’s conclusion that the promotion of nuclear energy is an objective of ‘common’ interest, the Court must rule, as a preliminary point, on the question as to the extent to which Article 107 TFEU is applicable to measures concerning the field of nuclear energy and the extent to which it is necessary to take into account the objectives of the Euratom Treaty in the context of its application.

(a) The application of Article 107 TFEU to measures concerning the field of nuclear energy and the taking into account of the objectives of the Euratom Treaty in the context of the application of that provision

72 As regards the application of Article 107 TFEU to measures concerning the field of nuclear energy, it should be noted that, according to Article 106a(3) of the Euratom Treaty, the provisions of the EU Treaty and of the FEU Treaty are not to derogate from the provisions of the Euratom Treaty. Consequently, the provisions of the Euratom Treaty constitute special rules in relation to the provisions of the FEU Treaty and therefore derogate from the latter provisions in the event of any conflict.

73 However, the fact that the provisions of the Euratom Treaty constitute special rules in relation to the FEU Treaty does not preclude Article 107 TFEU from being applied to measures pursuing an objective covered by the Euratom Treaty. In so far as the Euratom Treaty does not lay down specific rules in that regard, the provisions of the FEU Treaty relating to a policy of the European Union may be applied to such measures (see, to that effect, judgments of 29 March 1990, Greece v Council, C‑62/88, EU:C:1990:153, paragraph 17; of 12 April 2005, Commission v United Kingdom, C‑61/03,EU:C:2005:210, paragraph 44; and of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraphs 69 to 82; see also, by analogy, Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 24).

74 It must be held that the Euratom Treaty does not contain exhaustive rules on competition that could preclude the rules laid down in Chapter 1 of Title VII of the FEU Treaty being applied. In particular, the Euratom Treaty does not lay down exhaustive rules on State aid.

75 Admittedly, certain provisions of the Euratom Treaty, such as Article 2(c) and the provisions laid down in Chapter 4 of Title II concern investment in the field of nuclear energy. However, those provisions do not set out the conditions under which, notwithstanding the distortion of competition to which it gives rise, State aid concerning investment in the field of nuclear energy may be considered to be compatible with the internal market.

76 Accordingly, Article 107 TFEU is intended to be applied to the measures at issue, even though they pursue an objective covered by the Euratom Treaty.

77 That conclusion is not called in question by Article 106a(1) of the Euratom Treaty, which lists certain provisions of the EU Treaty and the FEU Treaty which are to apply to the Euratom Treaty. As is evident from the second recital of Protocol No 2 amending the Euratom Treaty annexed to the Treaty of Lisbon (OJ 2007 C 306, p. 199), that provision merely adapts that treaty to the new rules laid down by the EU Treaty and by the FEU Treaty, in particular in the institutional and financial fields. It cannot, however, be inferred from that provision that all the EU Treaty and FEU Treaty provisions not mentioned there are not intended to apply to measures that pursue objectives falling within the scope of the Euratom Treaty. To read Article 106a(1) of the Euratom Treaty in that way would not be consistent with paragraph 3 of that article, from which it may be inferred that, in principle, the provisions of the EU Treaty and of the FEU Treaty are intended to apply in the field of nuclear energy and that it is only to the extent to which the Euratom Treaty lays down special rules that the provisions of the EU Treaty and of the FEU Treaty are not to apply.

78 Consequently, Article 107 TFEU is applicable to the measures at issue. However, in the context of the application of that provision to measures concerning the field of nuclear energy, it is necessary to take into account the provisions and objectives of the Euratom Treaty.

(b) The arguments calling in question the Commission’s conclusion that the promotion of nuclear energy constitutes an objective of ‘common’ interest

79 The Court must take into account the considerations set out in paragraphs 72 to 78 above when it examines the arguments of the Republic of Austria and the Grand Duchy of Luxembourg calling in question the Commission’s conclusion in recital 374 of the contested decision that the objective of promoting nuclear energy being pursued by the United Kingdom through the measures at issue, that is, the creation of new nuclear energy generating capacity, constituted an objective of ‘common’ interest.

80 In the first place, the Republic of Austria and the Grand Duchy of Luxembourg submit that, if an objective does not take account of the legitimate interests of a single Member State, it cannot be described as an objective of common interest, and they also emphasise that some Member States have always rejected the notion that the construction of new nuclear reactors is a European objective of common interest.

81 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, Romania, the Slovak Republic and the United Kingdom contest those arguments.

82 In that regard, first of all, it must be borne in mind that, under Article 107(3)(c) TFEU, aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, may be considered to be compatible with the internal market.

83 Second, it should be noted that, in paragraph 125 of the judgment of 15 June 2010, Mediaset v Commission (T‑177/07, EU:T:2010:233), the Court did indeed find that, in order to be compatible with the internal market for the purposes of Article 107(3)(c) TFEU, aid must pursue an objective in the ‘common’ interest and must be appropriate, necessary and not disproportionate.

84 However, the reference in the judgment of 15 June 2010, Mediaset v Commission (T‑177/07, EU:T:2010:233) to the pursuit of an objective of ‘common’ interest cannot be construed as a requirement that only those objectives that are in the interest of all or the majority of the Member States could be taken into account in the context of the application of Article 107(3)(c) TFEU.

85 In the context of the application of Article 107(3)(c) TFEU, it is necessary to distinguish between, on the one hand, the objective pursued by a Member State, which may consist in particular in developing an activity, and, on the other hand, the condition that State aid must not adversely affect trading conditions to an extent contrary to the common interest.

86 It cannot be concluded that Article 107(3)(c) TFEU limits the objectives capable of being pursued by Member States to those that are in the interest of all or the majority of the Member States of the European Union. In referring to a ‘common’ interest in paragraph 125 of the judgment of 15 June 2010, Mediaset v Commission (T‑177/07, EU:T:2010:233), the Court was merely indicating that the interest had to be a public interest and not just a private interest of the beneficiary of the aid measure.

87 As regards the concept of common interest mentioned at the end of Article 107(3)(c) TFEU, it should be noted that it relates to the balance to be struck between the advantages and disadvantages arising from an aid measure, and precludes measures which adversely affect trading conditions to an extent contrary to the common interest from being authorised. It is therefore relevant to a subsequent stage of the examination carried out in the context of the application of that provision. Accordingly, it cannot be inferred from this that the public interest objectives that may be pursued by a Member State are limited to those that are common to all or to the majority of the Member States.

88 The Commission’s finding, in recital 374 of the contested decision, that the measures at issue pursued an objective of ‘common’ interest, must be read taking those considerations into account. That recital appears in Section 9.2 of that decision, in which the Commission stated its view on the question whether the promotion of nuclear energy was an objective that could legitimately be pursued under Article 107(3)(c) TFEU. Accordingly, in that recital, it confined itself to noting that, in view of the provisions of the Euratom Treaty, the United Kingdom was entitled to decide upon the promotion of nuclear energy as a public interest objective for the purposes of that provision. However, in that recital, the Commission did not find that that objective was shared by all or by the majority of the Member States. Nor did it comment on the question whether the measures at issue adversely affected trading conditions to an extent contrary to the common interest. It is clear from the structure of that decision that the Commission examined that issue at a later stage, in Sections 9.3 to 9.6 of the decision.

89 Having regard to the foregoing considerations, the Court must reject the argument of the Republic of Austria that, in recital 374 of the contested decision, the Commission failed to take sufficient account of the fact that some Member States, including the Republic of Austria, had always rejected the idea of building new nuclear reactors.

90 In the second place, the Republic of Austria submits that, in recitals 366 to 374 of the contested decision, the Commission disregarded the fact that the need for aid and its impact on trade between Member States had to be assessed from the point of view of the European Union. In that context, it argues that the concepts of common interest mentioned in connection with Article 34 TEU and Article 142 TFEU also relate to the interest of all the Member States.

91 Those arguments must be rejected.

92 Suffice it to note in that regard that, in recitals 366 to 374 of the contested decision, the Commission did not call in question the fact that, in so far as Article 107(3)(c) TFEU provides that State aid must not adversely affect trading conditions to an extent contrary to the common interest, it is necessary to take into account the interest of the European Union and of all the Member States. As has been explained in paragraph 88 above, in those recitals, the Commission did not state its view on that weighing of interests, but only on the question whether the United Kingdom was entitled to decide upon the promotion of nuclear energy as a public interest objective.

93 In the third place, the Republic of Austria puts forward arguments that call in question the Commission’s conclusion that a Member State is entitled to pursue the promotion of nuclear energy and, more specifically, the creation of new nuclear energy generating capacity, as a public interest objective for the purposes of Article 107(3)(c) TFEU. In its submission, first, Article 2(c) of the Euratom Treaty is not addressed to Member States. Second, that provision refers only to the basic installations necessary for the development of nuclear energy. Hinkley Point C does not appear to be a basic installation of that kind. Third, the objective of promoting nuclear energy has already been achieved, as numerous nuclear power stations have been built throughout Europe. Fourth, the Commission disregarded the historical context of the Euratom Treaty and the limitations that flow from it.

94 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, Romania, the Slovak Republic and the United Kingdom contest those arguments.

95 In that regard, as has been noted in paragraphs 80 to 89 above, under Article 107(3)(c) TFEU, the public interest objective pursued by the measure in question does not necessarily have to be an objective that is shared by all or by the majority of the Member States.

96 It must also be recalled that, as has been set out in paragraphs 72 to 78 above, in the context of the application of Article 107 TFEU to measures pursing an objective covered by the Euratom Treaty, it is necessary to take into account the provisions and the objectives of the Euratom Treaty. It is evident from the second paragraph of Article 1 of the Euratom Treaty that the task of the Euratom Community is to contribute to the raising of the standard of living in the Member States and to the development of relations with the other countries by creating the conditions necessary for the speedy establishment and growth of nuclear industries. Under Article 2(c) of the Euratom Treaty, in order to perform its task, the Euratom Community is, as provided in that treaty, to facilitate investment and ensure, particularly by encouraging ventures on the part of undertakings, the establishment of the basic installations necessary for the development of nuclear energy in the Community.

97 In the light of the second paragraph of Article 1 and Article 2(c) of the Euratom Treaty, it must be held that the Commission did not err in finding that the United Kingdom was entitled to decide upon the promotion de nuclear energy and, more specifically, incentives for the creation of new nuclear energy generating capacity, as a public interest objective for the purposes of Article 107(3)(c) TFEU. That objective is related to the Euratom Community’s goal of facilitating investment in the nuclear field, and it is apparent from the first paragraph of Article 192 of the Euratom Treaty that the Member States are to facilitate the achievement of the Euratom Community’s tasks. Moreover, it is apparent from the second subparagraph of Article 194(2) TFEU that each Member State has the right to choose between the different energy sources those they prefer.

98 None of the arguments put forward by the Republic of Austria is capable of calling that conclusion in question.

99 First, the Republic of Austria submits, in essence, that the Commission overlooked the historical context of the Euratom Treaty and the limitations that flow from it. The nuclear power euphoria existing at the time when the Euratom Treaty was concluded has given way, today, in numerous Member States, to a clear scepticism, shared by a large part of the population, and even to the total rejection and complete abandonment of that form of energy production. Unlike the other provisions of primary law, those of the Euratom Treaty have barely been revised and are thus rules that predate the FEU Treaty.

100 Those arguments must be rejected.

101 Contrary to what is suggested by the Republic of Austria, the provisions of the Euratom Treaty are in full force and that treaty cannot be regarded as a law that predates the FEU Treaty. It should be borne in mind that, in accordance with Article 208 of the Euratom Treaty, that treaty is applicable for an unlimited period, and it is apparent from the first recital of the preamble to Protocol No 2 amending the Euratom Treaty annexed to the Treaty of Lisbon that the provisions of the Euratom Treaty continue to have full legal effect. Moreover, it is evident from that protocol that the Treaty of Lisbon amended and confirmed not only the FEU Treaty and the EU Treaty, but also the Euratom Treaty.

102 In that context, the Court must also reject the Republic of Austria’s argument that it follows from Declaration No 54 of the declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon that the Euratom Treaty is out of date. The mere fact that five Member States declared that the provisions of the Euratom Treaty had not been substantially amended since its entry into force and needed to be brought up to date is not capable of calling in question the conclusion that the provisions of the Euratom Treaty are in full force.

103 Furthermore, in so far as the Republic of Austria invokes the Joint Declaration of the Plenipotentiaries on the application of the Euratom Treaty in the context of the acts concerning the conditions of accession of the Republic of Austria, the Kingdom of Sweden, the Republic of Finland and the Kingdom of Norway to the European Union and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 382), it is sufficient to note that it is apparent from that declaration that the Member States decide to produce or not to produce nuclear energy according to their specific policy orientations. It cannot be inferred from this that the promotion by one Member State of nuclear energy cannot constitute a public interest objective for the purposes of Article 107(3)(c) TFEU which a Member State may decide to pursue.

104 Second, the Republic of Austria maintains that Article 2(c) of the Euratom Treaty refers only to the basic installations necessary for the development of nuclear energy and that the objective of promoting nuclear energy has already been achieved.

105 It should be recalled in that regard that the contested decision is founded on Article 107(3)(c) TFEU and that that provision refers to the development of an activity. It must be held that the Commission did not err in finding that the purpose of the construction of Hinkley Point C was to develop an activity within the meaning of that provision. In accordance with the second subparagraph of Article 194(2) TFEU, the United Kingdom is entitled to choose between different energy sources. It must also be noted that, as is apparent in particular from recital 510 of the contested decision and recitals 6 and 7 of the decision to initiate the formal investigation procedure, the construction of Hinkley Point C was intended to replace ageing nuclear energy generating capacity that was scheduled for closure. Further, it is common ground that the technology to be used in that reactor is more advanced than that used in existing power stations.

106 In the light of those considerations, the Court must reject the Republic of Austria’s argument that Hinkley Point C was not a basic installation necessary for the development of nuclear energy and that the objective of promoting nuclear energy had already been achieved.

107 Third, the Republic of Austria’s argument that Article 2(c) of the Euratom Treaty is not addressed to the Member States must also be rejected. It should be observed in that regard that, even if that provision does not refer directly to the Member States, but to the Euratom Community, the United Kingdom was entitled to take account of it, in the light of the first paragraph of Article 192 of that treaty, according to which the Member States are to facilitate the achievement of the Euratom Community’s tasks.

108 Fourth, the Republic of Austria argues that, if the promotion of nuclear energy were considered a public interest objective for the purposes of Article 107(3)(c) TFEU, it would be possible to justify any measure that pursued this goal. In that regard, it is sufficient to recall that, in recital 374 of the contested decision, the Commission confined itself to noting that the promotion of nuclear energy constituted an objective of public interest. It did not, however, in that recital, examine whether, in the light of that objective, the measures at issue were appropriate, necessary and not disproportionate. That issue was examined by the Commission in Sections 9.3 to 9.6 of that decision.

109 Consequently, the Court must reject all the arguments aimed at establishing that the provisions of the Euratom Treaty do not permit the inference that the promotion of nuclear energy and, more specifically, the creation of new nuclear energy generating capacity, constitute a public interest objective for the purposes of Article 107(3)(c) TFEU.

110 In the fourth place, the Republic of Austria and the Grand Duchy of Luxembourg claim that there is a conflict between the promotion of nuclear energy, on the one hand, and the principle of protection of the environment, the precautionary principle, the ‘polluter pays’ principle, and the principle of sustainability, and some of the objectives set out in Article 194(1) TFEU, such as the promotion of energy efficiency, the development of new forms of energy and the promotion of energy networks, on the other. According to those Member States, the Commission should not have given unconditional priority to the objective of promoting nuclear energy but should have taken into account the conflict between the promotion of nuclear energy and the principles mentioned above. In that context, the Grand Duchy of Luxembourg also mentions the danger arising from terrorist attacks.

111 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, Romania, the Slovak Republic and the United Kingdom contest those arguments.

112 In that regard, it must be noted that, in the light of the objectives of the Euratom Treaty, it cannot be concluded that the principles invoked by the Republic of Austria and the Grand Duchy of Luxembourg preclude a Member State from deciding upon the promotion of nuclear energy as a public interest objective for the purposes of Article 107(3)(c) TFEU. As regards the principles which those Member States draw from the FEU Treaty, it should be borne in mind that, under Article 106a(3) of the Euratom Treaty, the provisions of the EU Treaty and of the FEU Treaty are not to derogate from the provisions of the Euratom Treaty.

113 Furthermore, the Court must reject the argument of the Republic of Austria and the Grand Duchy of Luxembourg that the Commission prioritised unconditionally the objective of promoting nuclear energy. In that regard, it is sufficient to recall that, in Section 9.2 of the contested decision, the Commission confined itself to noting that the promotion of nuclear energy constituted a public interest objective for the purposes of Article 107(3)(c) TFEU. However, at that stage of its analysis, it did not examine the proportionality of the measures at issue.

114 Consequently, in so far as, by their arguments, the Republic of Austria and the Grand Duchy of Luxembourg seek to demonstrate that the promotion of nuclear energy cannot constitute a public interest objective for the purposes of Article 107(3)(c) TFEU, those arguments must be rejected. However, in so far as those arguments seek to call in question the Commission’s conclusions regarding the proportionality of the measures at issue, those arguments will be taken into account in the examination of the sixth plea, alleging breach of the principle of proportionality.

115 In the fifth place, the Republic of Austria submits that it is apparent from the nuclear illustrative programmes published periodically by the Commission that, in accordance with Article 40 of the Euratom Treaty, investment in nuclear energy cannot be classified as an objective of common interest.

116 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, Romania, the Slovak Republic and the United Kingdom contest those arguments.

117 In that regard, first, it must be noted that, given the nature of nuclear illustrative programmes (see Article 40 of the Euratom Treaty), the considerations set out in paragraphs 79 to 115 above, which are based on the provisions of the Euratom Treaty and the FEU Treaty, cannot be called in question by the Commission’s findings in those programmes.

118 Second, and in any event, it must be noted that there is nothing in the nuclear illustrative programmes mentioned by the Republic of Austria to indicate that the promotion of nuclear energy is not an activity the development of which could not be facilitated pursuant to Article 107(3)(c) TFEU.

119 On the one hand, in so far as the Republic of Austria claims that it is apparent from Section 7 of the nuclear illustrative programme of 4 October 2007, COM(2007) 565 final, that it is for Member States to decide whether to use nuclear energy or not, that confirms the United Kingdom’s right to promote nuclear energy (see paragraph 97 above).

120 On the other hand, in so far as the Republic of Austria maintains that it is apparent from page 18 of the nuclear illustrative programme of 25 September 1996, COM(1996) 339 final, from Section 3.3 of that of 13 November 2008, COM(2008) 776 final, and from Section 4.2 of that of 4 October 2007, COM(2007) 565 final that, given the competitiveness of nuclear power, no State aid should be granted in that field, suffice it to note that that argument is not capable of calling in question the Commission’s conclusion that the promotion of nuclear energy may constitute a public interest objective for the purposes of Article 107(3)(c) TFEU. It might only be capable of calling in question the Commission’s finding as to the necessary nature of the measures at issue. Consequently, that argument is ineffective in the present context, but will be taken into account in the examination of the first plea, concerning the Commission’s conclusions regarding the need for State intervention.

121 Accordingly, the arguments based on the nuclear illustrative programmes published by the Commission must be rejected.

122 In the sixth place, the Republic of Austria submits that, in the contested decision, the Commission provided no further detail regarding its thoughts on the objectives of diversification and security of supply. The Grand Duchy of Luxembourg submits that security of supply is not guaranteed, as uranium would have to be imported from countries outside the Union.

123 In that regard, suffice it to note that it is apparent from recitals 366 to 374 of the contested decision that the Commission considered the promotion of nuclear energy to be a public interest objective, which is capable in itself of justifying the measures at issue. However, in stating, in recital 374 of that decision, that the promotion of nuclear energy could also contribute to the objectives of diversification and security of supply, it did not find that those two other objectives were objectives which, by themselves and autonomously, enabled the measures at issue to be justified. In those circumstances, the Commission cannot be criticised for having failed to go into more detail with regard to the objectives of diversification and security of supply in the context of Section 9.2 of that decision.

124 Therefore, that argument must be rejected.

125 In the seventh place, the Republic of Austria also puts forward arguments relating to (i) an erroneous definition of the market; (ii) the absence of a market failure in the nuclear power station construction and operation sector; (iii) the classification of the measures at issue as investment aid; and (iv) the effect on trading conditions between Member States.

126 In that regard, suffice it to note that the arguments in question cover stages of the examination required to be carried out pursuant to Article 107(3)(c) TFEU which occur after the determination of the public interest objective pursued. Accordingly, those arguments are not capable of establishing an error by the Commission concerning the characterisation of the promotion of nuclear energy as a public interest objective for the purposes of that provision.

127 Those arguments are therefore ineffective in so far as they have been put forward in support of the present plea. However, the first argument, concerning an erroneous definition of the market, and the second argument, concerning the absence of market failure, will be taken into account in the context of the examination of the first plea, alleging that the Commission acknowledged the existence of a separate nuclear energy market and that the electricity market was not failing. The third argument, concerning the classification of the measures at issue as investment aid, will be examined in the context of the third plea, alleging that the measures at issue should have been classified as operating aid. The fourth argument, concerning the effect on trading conditions between Member States will be examined in the context of the sixth plea, aimed at demonstrating the allegedly erroneous nature of the Commission’s conclusion that the measures at issue complied with the principle of proportionality.

128 Having regard to the foregoing considerations, the Court must reject the fourth plea, without prejudice to the arguments mentioned in paragraphs 114, 120 and 125 above.

C. Second plea, relating to the allegedly erroneous nature of the Commission’s finding that the technology used in Hinkley Point C was new

129 The present plea concerns the Commission’s findings, in recital 392 of the contested decision, that investment in new nuclear energy generating capacity was intended to achieve the public interest objective of promoting nuclear energy and that that investment would not be delivered without the United Kingdom’s intervention.

130 According to the Republic of Austria, those findings are vitiated by errors.

131 In the first place, the Republic of Austria submits that the Commission was wrong to find that the technology to be used in Hinkley Point C was new. It is not new technology, but ‘proven’ technology, that is a variant of the pressurised water reactor used for decades, which has considerable similarities to many reactors currently in operation.

132 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland and the United Kingdom contest that argument.

133 As a preliminary point, it should be noted that that argument of the Republic of Austria is based on the premiss that, in recital 392 of the contested decision, the Commission found that the technology to be used in Hinkley Point C was new technology.

134 That premiss is incorrect.

135 Admittedly, the German version of recital 392 of the contested decision contains the expression ‘Investitionen in neue Nukleartechnologien’, a reference to investment in new nuclear technologies.

136 However, as is clear from the first page of the contested decision, only the English version is authentic. Recital 392 of that decision, in the English version, includes the expression ‘new nuclear investment’, a reference to investment in new nuclear energy generating capacity, and mentions that that investment aims at the objective of common interest highlighted in Section 9.2 of that decision and that the measures at issue were necessary, on the basis, inter alia, of that specific type of investment. That recital does not therefore refer to new nuclear technologies but to investment in new nuclear capacity.

137 That reading of recital 392 of the contested decision is, moreover, confirmed by recitals 375 to 391 of that decision, which precede the finding in recital 392 thereof, in which the Commission made no reference to the use of new nuclear technology.

138 Therefore, the Republic of Austria’s argument is based on a misreading of recital 392 of the contested decision and must be rejected.

139 In the second place, the Court must reject the Republic of Austria’s argument that the Commission failed to specify which economic activity within the meaning of Article 107(3)(c) TFEU was intended to be promoted by the measures at issue. Suffice it to note in that regard that it is sufficiently clear from recital 392 of the contested decision that the activity in question was the promotion of nuclear energy.

140 In the third place, it is necessary to examine the Republic of Austria’s argument that Article 107(3)(c) TFEU and Article 2(c) of the Euratom Treaty require the development of activities and that a mere replacement measure does not fulfil that condition. In that context, it is also necessary to take account of the Republic of Austria’s argument that Article 6 of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] (OJ 2014 L 187, p. 1), the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1) and the Communication from the Commission on the Framework for State aid for research and development and innovation (OJ 2014 C 198, p. 1) preclude measures intended solely to enable an undertaking to use the latest technical advances or to comply with safety or environmental rules in force from being deemed compatible with the internal market.

141 First, as regards Regulation No 651/2014, suffice it to note that this merely provides for a standardised block exemption approach, but is not binding on the Commission in the context of an individual examination conducted directly on the basis of Article 107(3)(c) TFEU.

142 Second, as regards the Guidelines on State aid for environmental protection and energy 2014-2020 and the Communication from the Commission on the Framework for State aid for research and development and innovation, it must be noted that the Republic of Austria’s arguments relate, on the one hand, to the objective of going beyond EU environmental protection standards and the objective of increasing the level of environmental protection in the absence of EU standards, which are mentioned in point 18(a) of those guidelines, and objectives relating to research, development and innovation, on the other. However, in the contested decision, the Commission did not assess the compatibility of the measures at issue in the light of those objectives. Accordingly, those arguments must be rejected.

143 Third, it must be recalled that Article 107(3)(c) TFEU merely requires that aid measures be intended to facilitate the development of certain activities. Article 2(c) of the Euratom Treaty is intended to facilitate investment and ensure the establishment of the basic installations necessary for the development of nuclear energy in the Community. Neither of those two provisions thus requires that the existence of any technological innovation be established.

144 Fourth, it must be noted that, in the circumstances of this case, the objective of promoting nuclear energy and, more specifically, that of incentivising undertakings to invest in new nuclear energy generating capacity, satisfies the requirements laid down in Article 107(3)(c) TFEU and in Article 2(c) of the Euratom Treaty. Contrary to the Republic of Austria’s contention, it cannot be concluded from the fact that that new capacity was supposed to replace ageing nuclear energy generating capacity that there was no development within the meaning of those provisions. Since ageing nuclear power stations have to be closed (see recital 510 of the contested decision and recitals 6 and 7 of the decision to initiate the formal investigation procedure), nuclear power in the United Kingdom would be less developed without investment in new nuclear energy generating capacity. In any event, it must be noted that it is common ground that the technology to be used in Hinkley Point C is more advanced than that used in the nuclear power stations it is supposed to replace. Even though the Republic of Austria takes issue with the fact that the technology is fundamentally new, it acknowledges that the technology is more advanced.

145 Accordingly, those arguments must also be rejected, as, therefore, must the second plea in its entirety.

D. First plea and first and second parts of the ninth plea, relating to the definition of the market and the Commission’s considerations based on the existence of a market failure

146 The first plea and the first and second parts of the ninth plea, as well as the arguments advanced in connection with the fourth plea, relating to the nuclear illustrative programmes, errors concerning the definition of the market and the absence of market failure (paragraphs 120 and 125 above), cover the considerations which the Commission set out in Section 9.3 of the contested decision, where it found that, without State intervention, new nuclear energy generating capacity would not be delivered in sufficient time.

147 The Republic of Austria and the Grand Duchy of Luxembourg take the view that the reasons given for those considerations are insufficient and erroneous. In essence, they advance three sets of arguments. In the first place, they maintain that the Commission was not entitled to conclude that intervention by the United Kingdom was necessary. It could have declared the measures at issue to be compatible with the internal market pursuant to Article 107(3)(c) TFEU only if it had found that the liberalised market for the generation and supply of electrical power was failing. In their submission, the reasons given for the Commission’s considerations in that respect are insufficient and are, in any event, manifestly erroneous. In the second place, they contend that the Commission wrongly proceeded on the basis of the existence of a market for the construction and operation of nuclear power plants, and that it did not provide sufficient reasons for the contested decision in that respect. In the third place, the Republic of Austria submits that the Commission’s approach was biased in favour of nuclear energy.

1. The arguments calling in question the Commission’s conclusion regarding the necessity of intervention by the United Kingdom

148 The Republic of Austria and the Grand Duchy of Luxembourg submit that the Commission was not entitled to conclude that intervention by the United Kingdom was necessary. In their view, the measures at issue could have been declared to be compatible with the internal market pursuant to Article 107(3)(c) TFEU only if the Commission had found that the liberalised market for the generation and supply of electrical power was failing. However, the generation and supply of electrical power could have been secured by means of technologies other than nuclear technology. Consequently, the Commission was not entitled to find that there was a market failure.

149 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, the Slovak Republic and the United Kingdom contend that those arguments must be rejected.

150 As a preliminary point, it must be recalled that Article 107(3)(c) TFEU does not expressly include a condition relating to the existence of a market failure. That provision merely requires that the aid should relate to a public interest objective, and that it be appropriate, necessary and not disproportionate (see paragraph 48 above). Accordingly, in the context of the application of that provision, the question that is relevant is whether the public interest objective pursued by the Member State would be attained without that Member State’s intervention (see, to that effect, judgment of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraph 77).

151 While the existence of a market failure may be a relevant factor for declaring State aid compatible with the internal market, the absence of market failure does not necessarily mean that the conditions laid down in Article 107(3)(c) TFEU are not satisfied (judgments of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraphs 78 and 79, and of 18 January 2017, Andersen v Commission, T‑92/11 RENV, not published, EU:T:2017:14, paragraph 69). For example, State intervention may be considered to be necessary for the purposes of that provision where market forces are not capable by themselves of ensuring that the public interest objective of the Member State is achieved in sufficient time, even if, as such, that market cannot be considered to be failing.

152 Those considerations must be taken into account when examining the complaints of the Republic of Austria and the Grand Duchy of Luxembourg that call in question the Commission’s conclusion that intervention by the United Kingdom was necessary to achieve the public interest objective it was pursuing, that is the creation of new nuclear energy generating capacity. Those complaints are that (i) the Commission did not disclose the reasons why investment in Hinkley Point C had to be regarded as being of a specific nature and as necessitating State intervention; (ii) material and formal errors affected the Commission’s findings in Section 9.3 of the contested decision; (iii) the Commission did not set out the reasons why the objectives of security of supply and decarbonisation could not be achieved without State aid; and (iv) the Commission ought to have set out in greater detail the extent to which Hinkley Point C would be using new technologies.

(a) Complaint that insufficient reasons were given as regards the specific nature of the investment in Hinkley Point C

153 The Republic of Austria submits that, in recital 392 of the contested decision, the Commission noted the specific nature of the investment in Hinkley Point C, without, however, disclosing the reasons why that investment had to be regarded as being of a specific nature.

154 The Commission contests those arguments.

155 It should be recalled in that regard that, in recital 392 of the contested decision, the Commission’s conclusion was drawn from its considerations in recitals 381 to 391 of that decision. In recitals 382 and 383 of that decision, the Commission noted, in particular, that investment in nuclear energy was subject to significant risk given the combination of high upfront capital costs with long construction times and a long period of operation to recover the investment costs. According to the Commission, there were no market-based financial instruments or other types of contracts that could hedge against such substantial risk, which was a phenomenon specific to certain technologies, including nuclear energy. The instruments available on the market did not provide time horizons in excess of 10 or 15 years, either in the form of long-term contracts or as risk-hedging instruments. In that context, the Commission also referred, inter alia, to the extremely long and complex life cycles of nuclear power stations, unlike most other energy infrastructures and indeed unlike most infrastructure investments in general. In particular, it noted, first of all, that it would normally take 8 to 10 years to construct a nuclear power plant, and that the costs to be incurred before any revenues were generated and the risks were to be borne only by the investor. Next, the 60-year operational life is characterised by the generation of revenues, but these are based on an uncertain evolution of wholesale prices. Moreover, the ensuing decommissioning period could last 40 years, with funds to be set aside for the shutdown of the installation. In addition, high-level nuclear waste storage and treatment is typically carried out on-site before transfer to a repository, where waste is expected to be stored for thousands of years. Last, there is a ‘hold-up’ risk that may compound uncertainty for private investors, because successive governments could take different views on the desirability of nuclear technology, given its controversial nature.

156 It must be held that the Commission’s considerations in recitals 382 and 383 of the contested decision disclose with sufficient clarity the reasons why, in its view, without United Kingdom intervention, given, in particular, the lack of market-based financial instruments and other types of contracts that could hedge against such substantial risk, the investment in new nuclear energy generating capacity would not be delivered in sufficient time.

157 Consequently, the complaint that insufficient reasons were given in recital 392 of the contested decision must be rejected.

(b) Complaint that material and formal errors could be shown to have affected the Commission’s considerations in Section 9.3 of the contested decision

158 The Republic of Austria and the Grand Duchy of Luxembourg put forward arguments to demonstrate the erroneous nature of the Commission’s considerations, in Section 9.3 of the contested decision, according to which, given the lack of market-based financial instruments and other types of contracts that could hedge against the substantial risk to which investments in nuclear energy are subject, State intervention was necessary in order to achieve the objective of promoting nuclear energy, and, more specifically, that of creating new nuclear energy generating capacity. According to those Member States, the Commission made material and formal errors in that respect.

159 The Commission, the Czech Republic, the French Republic, Hungary, the Republic of Poland, the Slovak Republic and the United Kingdom contest those arguments. The Commission contends that some of the arguments put forward by the Republic of Austria are inadmissible because they are out of time.

160 In that context, it should be recalled that the Commission has a wide discretion when applying Article 107(3) TFEU, the exercise of which involves complex economic and social assessments. Judicial review of the manner in which that discretion is exercised is therefore confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the accuracy of the facts and that there has been no manifest error of assessment or misuse of powers (judgments of 26 September 2002, Spain v Commission, C‑351/98, EU:C:2002:530, paragraph 74, and of 29 April 2004, Italy v Commission, C‑372/97, EU:C:2004:234, paragraph 83).

161 However, whilst the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the EU judicature establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. However, when conducting such a review, the EU judicature must not substitute its own economic assessment for that of the Commission. Moreover, it must be noted that, where an institution has a wide discretion, the review of observance of certain procedural guarantees is of fundamental importance. According to the case-law, those guarantees include the obligation for the competent institution to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (see judgment of 22 November 2007, Spain v Lenzing, C‑525/04 P, EU:C:2007:698, paragraphs 56 to 58 and the case-law cited).

162 The arguments put forward by the Republic of Austria and the Grand Duchy of Luxembourg must be examined taking those principles into account.

163 In the first place, the Republic of Austria submits that the mere fact that a particular undertaking cannot obtain market funding is not sufficient to establish that the public interest objective pursued by a Member State could not be attained without that State’s intervention.

164 That argument must be rejected.

165 In that regard, suffice it to note that, in recitals 381 to 391 of the contested decision, the Commission does not confine itself to examining the individual situation of NNBG or of that company’s investors, but comments more generally on the question whether, without United Kingdom intervention, new nuclear energy generating capacity would be built in that Member State, given the lack of market-based financial instruments and other types of contracts that could hedge against the substantial risk to which investments in nuclear energy are subject.

166 In the second place, the Republic of Austria submits that the Commission’s conclusion, in recitals 382 and 383 of the contested decision, that there were no adequate financial instruments for investment in new nuclear energy generating capacity is not based on a sufficiently solid and detailed examination and is not supported by an adequate statement of reasons.

167 First, the Republic of Austria claims that the Commission failed to take into account other forms of investment, such as financing by international syndication or individual aid that would be granted by financiers able to provide sufficient means for that.

168 In that regard, it should be recalled that, in recitals 381 to 392 of the contested decision, the Commission explained in detail why investment in nuclear energy was subject to substantial risks and noted that there were no market-based financial instruments or other types of contract that could hedge against those risks. After undertaking modelling work, the Commission found, moreover, that in those circumstances there was high uncertainty as to whether private investment in new nuclear energy generating capacity would be delivered within a realistic time frame.

169 In the light of those factors, the mere reference by the Republic of Austria to the possibility of financing by international syndication or by individual aid that might be granted by financiers able to provide sufficient means in that regard is not capable of demonstrating that the Commission’s considerations are vitiated by a manifest error of assessment.

170 In order to establish that the Commission made a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the decision implausible (judgments of 12 December 1996, AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, paragraph 59, and of 6 October 2009, FAB v Commission, T‑8/06, not published, EU:T:2009:386, paragraph 78).

171 The Republic of Austria did not explain why the substantial risks to which investment in nuclear energy is subject — owing, notably, to the combination of high upfront capital costs, long construction times and a long period of operation to recover the investment costs, as well as the extremely long and complex life cycles, uncertain evolution of wholesale prices and decommissioning costs and the ‘hold-up’ risk — would not also preclude financing by international syndication or individual financing.

172 Accordingly, that argument must be rejected.

173 Second, the Republic of Austria submits that the problem of the lack of long-term price signals affects other technologies also and must therefore be regarded as a normal market condition that must be taken into account in the risk assessment of the project. Contrary to the Commission’s assertion, there are no stable price signals for the 10 to 15 years to come on the electricity market. In the most liquid European electricity exchanges, the products available currently have a life of up to seven years. Even for power plants using technologies with a shorter period of operation than nuclear power stations, a significant part of the life of those plants is not covered by the price signals available.

174 Suffice it to note in that regard that even on the assumption that the Republic of Austria’s argument is well founded, it could not call in question the Commission’s conclusion regarding the lack of adequate financial instruments for investment in new nuclear energy generating capacity. On the contrary, the argument that, even for periods of less than the 10 to 15 years taken into account by the Commission, there were no stable price signals may reinforce the Commission’s findings regarding the existence of factors that preclude investment in such new capacity.

175 Third, the Republic of Austria’s argument that the Commission should not have confined itself in its analysis to the financial markets in the United Kingdom must be rejected. It should be noted in that regard that, in recital 382 of the contested decision, the Commission noted the lack of market-based financial instruments and other types of contract to hedge against the substantial risks in relation to investment in nuclear energy generating capacity. It is not at all apparent from that recital that the Commission confined itself in its examination to financial instruments available in the United Kingdom.

176 Fourth, the Republic of Austria claims that, in that respect, the statement of reasons for the contested decision is insufficient.

177 First, the Republic of Austria submits that the Commission did not indicate why it was appropriate to rely exclusively on the financial markets available in the United Kingdom. That argument must be rejected. As has already been stated in paragraph 175 above, it is based on the false premiss that the Commission confined itself to those financial markets.

178 Second, the Republic of Austria submits that, in any event, in recitals 381 to 392 of the contested decision, the Commission did not explicitly mention the financial markets it took into account. It must be held in that regard that the statement of reasons in those recitals is sufficient to enable that Member State to ascertain the reasons for the measure taken, and the Court to exercise its power of review. If that Member State took the view that there were financial instruments which were not affected by the factors noted by the Commission, it could have put forward arguments in that respect during the proceedings before the Court, which would have enabled the Court to check whether that consideration on the part of the Commission was well founded.

179 In the light of the foregoing, the arguments calling in question the Commission’s conclusion concerning the lack of adequate financial instruments must be rejected.

180 In the third place, the Republic of Austria advances arguments calling in question the Commission’s considerations based on the risk of a political ‘hold-up’.

181 As a preliminary point, it should be noted that while, in recital 384 of the contested decision, the Commission expressed reservations as to whether the ‘hold-up’ situation it had identified could qualify as a market failure, it found that that risk could ‘be a factor in making investment in new [nuclear energy generating capacity] more difficult, in particular given the long time lines needed for constructing, operating and decommissioning nuclear power plants’. The Commission therefore found that, from the point of view of potential investors, the risk of a political ‘hold-up’ was a factor that precluded investment in such new capacity.

182 First, the Republic of Austria submits that a hold-up situation exists only where one of the parties to a long-term contract which is not wholly particularised when entered into enjoys considerable leeway, enabling that party to behave opportunistically when the other party has made advance payments by making, for example, substantial investments that are not transferable. The Republic of Austria argues that, contrary to the Commission’s findings, that is not the case here.

183 It should be noted in that regard that it is apparent from recitals 384 and 385 of the contested decision that all technologies could in principle suffer from a political hold-up, but that nuclear projects would generally be more exposed to that risk. In that context, the Commission noted, in particular, that successive governments could take different views on the desirability of nuclear technology, which could compound uncertainty for private investors, and, moreover, that that uncertainty was greater for nuclear technology, because of its controversial nature, the longer time horizon and the greater investment size.

184 As regards the arguments put forward by the Republic of Austria, it must be noted that it confines itself, on the one hand, to explaining its understanding of a hold-up situation and, on the other, to claiming that an undertaking investing in nuclear energy generating capacity is not in such a situation.

185 It must be held that the arguments advanced by the Republic of Austria are not capable of demonstrating that the Commission’s considerations in recitals 384 and 385 of the contested decision are vitiated by manifest errors of assessment (see paragraphs 160, 161 and 170 above). In particular, the Republic of Austria does not put forward any arguments that might render implausible the Commission’s statement that the risk described in paragraph 183 above was a factor that precluded investment in the construction and operation of new nuclear power stations.

186 Therefore, that argument must be rejected.

187 Second, the Republic of Austria argues that the risk that the political context might change is not a risk that is peculiar to nuclear power stations but a general risk affecting all projects on which public opinion is divided, especially those requiring significant resources. Such a risk cannot therefore be a factor requiring correction by means of State aid.

188 In that regard, it should be noted that, in recitals 384 and 385 of the contested decision, the Commission did not in any way rule out the possibility of the risk of a change in political context arising also in respect of other projects and precluding investment in those projects.

189 Moreover, it must be noted that the Republic of Austria does not advance any argument that might call in question the plausibility of the Commission’s assertion that the risk of a change in political context is considerable in the case of nuclear technology, notably because of its controversial nature, the likelihood of that risk, the scale of that change, which could extend as far as the total abandonment of the nuclear industry, very long repayment periods and very high amounts of investment.

190 Therefore, that argument by the Republic of Austria is also incapable of demonstrating that there is a manifest error of assessment in the Commission’s reasoning.

191 Third, the Republic of Austria submits that, in the event of expropriation, financial compensation is guaranteed, in the light of the protection of investments and economic rights.

192 In so far as that argument is intended to show that the Commission did not take sufficient account of the fact that financial compensation would be guaranteed, it must be rejected. In that context, it should be noted that the Commission did examine the question to what extent compensation would be guaranteed in the event of the early closure of Hinkley Point nuclear power station. Thus, in recital 192 of the decision to initiate the formal investigation procedure, the Commission stated that damages paid by national authorities to compensate for damage caused by public authorities did not constitute State aid within the meaning of Article 107(1) TFEU. Furthermore, in recital 322 of the contested decision, it noted that the general principles underpinning UK and EU law gave rise to a right to compensation in the event of deprivation of a property right.

193 Moreover, on the assumption that the Republic of Austria’s argument was intended to show that, in the light of the fact that financial compensation was guaranteed, it was manifestly wrong to find that the risk of a political hold-up was a factor that could be regarded as precluding investment in new nuclear energy generating capacity, that argument must also be rejected. The mere fact that compensation can be sought on the basis of the general principles underpinning UK and EU law does not prevent the risk of a political hold-up having a deterrent effect on potential investors. Given the investments amounts at issue in the present case, the mere prospect of obtaining, in some circumstances, after possible litigation, financial compensation of an uncertain amount in the event of expropriation is not liable to remove altogether the obstacle to investment attributable to the risk of a political hold-up. It follows from this that the Commission did not make a manifest error of assessment in finding that, notwithstanding the fact that compensation may be sought, the risk of a political hold-up was a factor precluding investment in new nuclear energy generating capacity.

194 Fourth, the Republic of Austria claims that it was wrong to ‘immunise’ the operators of Hinkley Point C against future, democratically taken, political decisions. The Grand Duchy of Luxembourg maintains that such political decisions cannot be regarded as market failures.

195 In so far as, by their arguments, the Republic of Austria and the Grand Duchy of Luxembourg seek to claim that future, democratically taken, political decisions could not be taken into account when examining whether there were factors precluding investment in new nuclear energy generating capacity, those arguments must be rejected. In the context of that examination, the Commission was entitled to take into account any factors capable of precluding, in the absence of State intervention, such new capacity from being created by market forces within a reasonable time. It was not, therefore, manifestly erroneous to take account in that context of the uncertainties that may arise from a risk of a political hold-up and which, for the reasons mentioned in paragraph 189 above, are particularly substantial in the field of nuclear energy.

196 In so far as, by that argument, the Republic of Austria does not merely call in question the need for intervention by the United Kingdom, as such, but also seeks to argue that there was overcompensation, because specific measures, namely the Contract for Difference, the Secretary of State Agreement and the Credit Guarantee, went beyond what was necessary to overcome the obstacles identified, the argument is one that is aimed at the Commission’s considerations concerning the necessary nature of the measures at issue and overlaps with the arguments put forward in connection with the sixth plea. That argument is therefore ineffective in the present context, but will be taken into account in the examination of the sixth plea.

197 It follows from this that all the arguments that call in question the Commission’s considerations based on the possibility of there being a political hold-up must be rejected, without prejudice to the argument relating to observance of the principle of proportionality, which will be examined in the context of the sixth plea.

198 In the fourth place, the Republic of Austria submits that the construction of other nuclear power stations was financed without State aid. It refers in that context, in particular, to the construction of the nuclear power stations of Flamanville (France) and Olkiluoto (Finland).

199 As a preliminary point, it should be recalled that, in recitals 381 to 392 of the contested decision, the Commission stated that, owing to the fact that investment in nuclear energy was subject to significant risk and that there was a lack of market-based financial instruments or other types of contracts to hedge against such risks, there was high uncertainty over the question whether the market would deliver investment in new nuclear energy generating capacity within a realistic time frame. It should also be recalled that the Commission based that conclusion not only on the identification of those factors, but also on modelling work.

200 The Court must therefore examine whether the Republic of Austria’s argument that nuclear power stations with the same type of reactor as that to be used at Hinkley Point C have been built at Flamanville and at Olkiluoto, without State aid, is such as to make the Commission’s assessments implausible.

201 First, it should be noted that it is clear from paragraph 25 of the decision to initiate the formal investigation procedure that, before the contested decision was adopted, it was already known that the projects to build power stations at Flamanville and Olkiluoto had generated substantial cost overruns.

202 Second, it must be noted that, according to the information provided by the Commission and the French Republic, which is not disputed by the Republic of Austria or the Grand Duchy of Luxembourg, the decisions to invest in the construction projects mentioned by the Republic of Austria were taken before the accident at the Fukushima nuclear reactor (Japan).

203 Third, it must be recalled that those projects were designed in different framework conditions. As the Commission contended, without being challenged in any detail by the Republic of Austria or by the Grand Duchy of Luxembourg, the decision to invest in the construction of the Flamanville nuclear power station was taken in 2005, and thus before the global financial crisis of 2007 and 2008, whereas the contested decision was adopted after that crisis began. In the case of the Olkiluoto nuclear power station, it is evident from the nuclear illustrative programme of 4 October 2007, COM(2007) 565 final, that investment in that power station was obtained through the conclusion of a shareholder agreement ensuring a fixed energy price for the owner-investors. Furthermore, according to information provided by the Commission, which has not been disputed in any detail by the Republic of Austria or the Grand Duchy of Luxembourg, the shareholders of that power station are essentially manufacturers of paper, and the energy produced is distributed among the shareholders for the actual cost of production.

204 Fourth, the Commission claims that the wholesale price of electricity in the European Union has declined substantially since the decisions to invest in the construction of the nuclear power stations at Flamanville and Olkiluoto (by 35% to 45% between 2008 and 2012), which is not disputed by the Republic of Austria or the Grand Duchy of Luxembourg.

205 In the light of those circumstances, it must be held that, in itself, the argument that nuclear power stations with the same type of reactor as that to be used at Hinkley Point C have been built at Flamanville and at Olkiluoto, without State aid, is not capable of making the Commission’s assessments in recitals 391 to 392 of the contested decision implausible.

206 Accordingly, that argument must be rejected.

207 In the fifth place, the Republic of Austria submits that there are entirely comparable infrastructure projects (hydropower plants, tunnels, large research organisations in the field of pharmaceuticals or genetic engineering, and space projects), which require the operator to deal with high investment costs, long construction times and a long period of operation.

208 In that regard, it should be noted that, in recitals 381 to 385 of the contested decision, the Commission did not in any way rule out the possibility that there might be factors preventing investment in the case of other infrastructure projects also.

209 Moreover, a mere reference to the fact that other, unspecified, infrastructure projects also have to face high investment costs, long construction times and a long period of operation is not capable of rendering implausible the Commission’s considerations in recitals 381 to 392 of the contested decision, in which it took into account, inter alia, the risks inherent in the production of nuclear energy and the lack of market-based financial instruments or other types of contracts to hedge against those risks. Furthermore, it must be noted that the risk of a political hold-up and the complete abandonment of nuclear technology, owing to its controversial nature, is inherent in investment in new nuclear energy generating capacity.

210 Consequently, that argument must also be rejected.

211 In the sixth place, the Court must examine the Republic of Austria’s arguments relating to the nuclear illustrative programmes, which it put forward in the context of the fourth plea (see paragraph 120 above). The Republic of Austria argues that it is apparent from some of those programmes that nuclear energy is competitive and that projects in that field should not benefit from State aid. In essence, those arguments are intended to show that, contrary to the Commission’s findings, new nuclear energy generating capacity could have been built within a reasonable time without the United Kingdom’s intervention.

212 In that context, it is appropriate to examine the content of the nuclear illustrative programmes to which the Republic of Austria refers.

213 As regards the nuclear illustrative programme of 4 October 2007, COM(2007) 565 final, it must be noted that, admittedly, in Section 4.2 of the document concerned, the Commission identified a trend in certain Member States whereby new nuclear plants were generally being built without subsidies, which was said to be an indication that nuclear energy was increasingly perceived as being competitive. However, it must also be noted that, in Section 4.3 of that document, the Commission found that there was uncertainty about future electricity prices, market structure and conditions and about future energy and climate change policies, which posed a major risk to long-term investment in the energy sector and was particularly important for nuclear technology, due to the high capital investment required for the construction of a new power plant and the relatively long period before any such investment starts to show a profit. There is also mention of the fact that in