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

(Case T‑468/08)

‛State aid — Aid awarded by the Hungarian authorities to certain electricity generators — Power purchase agreements concluded between a public undertaking and certain electricity generators — Decision declaring the State aid incompatible with the common market and ordering its recovery — Obligation to state reasons — Concept of State aid — Advantage — Selective nature — State resources — Imputability to the State — Effect on trade between Member States — Rights of the defence — Legal certainty — Legitimate expectations — Equal treatment — Proportionality — Misuse of powers — Article 10 of the Energy Charter Treaty’

1. State aid — Compatibility of the aid with the common market — Accession of a new Member State to the European Union — Relevant date for assessment of the compatibility of a measure with the common market (Art. 87(1) EC) (see paras 63, 64, 86)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 65)

3. State aid — Existing aid and new aid — Accession of a new Member State to the European Union — Distinction by reference to the specific rules established in Annex IV of the Act of Accession — Possibility of classifying as new aid a measure not initially constituting State aid — Advantageous conditions granted to certain Hungarian electricity producers — Classification as new aid (Arts 87(1) EC and 88(1) and (3) EC; 2003 Act of Accession, Annex IV; Council Regulation No 659/1999, Art. 1) (see paras 70, 72, 73, 75, 78-82)

4. State aid — Concept — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits — Long-term power purchase agreements guaranteeing electricity producers a minimum purchase quantity at a price covering fixed, variable and capital costs — Inclusion (Art. 87(1) EC) (see paras 84, 85, 91, 92, 96-100, 102, 104, 105)

5. State aid — Recovery of unlawful aid — Calculation of the amount of aid to be recovered — Implementation by the competent authority of the method indicated by the Commission — Consequence — Recipient of the advantage having no amount to repay — Distinction between the existence of State aid incompatible with the common market and recovery of that aid (Art. 87(1) EC) (see paras 134-138, 140-143)

6. State aid — Concept — Selective nature of the measure — Differentiation between undertakings in a comparable factual and legal situation (Art. 87(1) EC) (see paras 159, 160)

7. State aid — Concept — Aid granted to a public undertaking — Undertaking controlled by the State — Automatic imputability of the aid measure to the State — Exclusion — Series of indicators to be taken into account (Art. 87(1) EC) (see paras 167-170)

8. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment — Liberalised sector (Art. 87(1) EC) (see paras 181-183)

9. State aid — Administrative procedure — Right of the persons concerned to be heard — Limits (Art. 88(2) EC; Council Regulation No 659/1999, Art. 20(1)) (see paras 206-210)

10. State aid — Provisions of the Treaty — Scope ratione temporis — Accession of Hungary to the European Union — Act of Accession — Application of provisions on State aid as from the date of accession and solely in regard to situations arising as from that date — No infringement of the principles of the protection of legitimate expectations and legal certainty (Arts 87 EC and 88 EC; 2003 Act of Accession) (see paras 220, 221, 223, 225-227)

11. Competition — Application of the competition rules — Equal treatment of public and private undertakings — Public property regime — Irrelevant (Arts 86(1) EC, 87(1) EC and 295 EC) (see paras 235-237, 239, 241)

12. State aid — Commission decision finding aid to be incompatible with the common market — Obligation to state reasons — Scope — Difference between insufficiency of reasoning for a decision and relevance of the reasoning to the substance (Arts 88(2) EC and 253 EC) (see paras 244, 260, 263)

13. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Scope — State aid for regional purposes — Included — Exclusion of operating aid for undertakings save in exceptional cases (Art. 87(3)(a) and (c) EC; Commission Notices 2006/C 54/13 and 2008/C 82/01) (see paras 268-273, 275)

14. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Possible for the Commission to leave to national authorities the task of calculating the exact amount to be recovered — Indication of a repayment methodology in the final decision — Calculation of the amount to be recovered on the basis of a market simulation — No breach of the principle of legal certainty (Art. 88 EC) (see paras 284, 286, 287, 291, 292, 296, 297, 299)

15. State aid — Recovery of unlawful aid — Restoration of the prior situation — No breach of the principle of proportionality (Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(1)) (see paras 308, 311, 312, 315, 317)

16. Public international law — Principles — Good faith — Community law — Protection of legitimate expectations — Adoption of a Community act contrary to an international agreement not yet entered into force but having been subject to lodging by the Community of its instrument of approval (Energy Charter Treaty of 1994) (see para. 321)

Re:

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

Operative part

The Court:

1. Dismisses the action;

2. Orders Tisza Erőmű kft to pay the costs, including those incurred in the proceedings for interim measures.

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

(Case T‑468/08)

‛State aid — Aid awarded by the Hungarian authorities to certain electricity generators — Power purchase agreements concluded between a public undertaking and certain electricity generators — Decision declaring the State aid incompatible with the common market and ordering its recovery — Obligation to state reasons — Concept of State aid — Advantage — Selective nature — State resources — Imputability to the State — Effect on trade between Member States — Rights of the defence — Legal certainty — Legitimate expectations — Equal treatment — Proportionality — Misuse of powers — Article 10 of the Energy Charter Treaty’

1. State aid — Compatibility of the aid with the common market — Accession of a new Member State to the European Union — Relevant date for assessment of the compatibility of a measure with the common market (Art. 87(1) EC) (see paras 63, 64, 86)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 65)

3. State aid — Existing aid and new aid — Accession of a new Member State to the European Union — Distinction by reference to the specific rules established in Annex IV of the Act of Accession — Possibility of classifying as new aid a measure not initially constituting State aid — Advantageous conditions granted to certain Hungarian electricity producers — Classification as new aid (Arts 87(1) EC and 88(1) and (3) EC; 2003 Act of Accession, Annex IV; Council Regulation No 659/1999, Art. 1) (see paras 70, 72, 73, 75, 78-82)

4. State aid — Concept — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits — Long-term power purchase agreements guaranteeing electricity producers a minimum purchase quantity at a price covering fixed, variable and capital costs — Inclusion (Art. 87(1) EC) (see paras 84, 85, 91, 92, 96-100, 102, 104, 105)

5. State aid — Recovery of unlawful aid — Calculation of the amount of aid to be recovered — Implementation by the competent authority of the method indicated by the Commission — Consequence — Recipient of the advantage having no amount to repay — Distinction between the existence of State aid incompatible with the common market and recovery of that aid (Art. 87(1) EC) (see paras 134-138, 140-143)

6. State aid — Concept — Selective nature of the measure — Differentiation between undertakings in a comparable factual and legal situation (Art. 87(1) EC) (see paras 159, 160)

7. State aid — Concept — Aid granted to a public undertaking — Undertaking controlled by the State — Automatic imputability of the aid measure to the State — Exclusion — Series of indicators to be taken into account (Art. 87(1) EC) (see paras 167-170)

8. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment — Liberalised sector (Art. 87(1) EC) (see paras 181-183)

9. State aid — Administrative procedure — Right of the persons concerned to be heard — Limits (Art. 88(2) EC; Council Regulation No 659/1999, Art. 20(1)) (see paras 206-210)

10. State aid — Provisions of the Treaty — Scope ratione temporis — Accession of Hungary to the European Union — Act of Accession — Application of provisions on State aid as from the date of accession and solely in regard to situations arising as from that date — No infringement of the principles of the protection of legitimate expectations and legal certainty (Arts 87 EC and 88 EC; 2003 Act of Accession) (see paras 220, 221, 223, 225-227)

11. Competition — Application of the competition rules — Equal treatment of public and private undertakings — Public property regime — Irrelevant (Arts 86(1) EC, 87(1) EC and 295 EC) (see paras 235-237, 239, 241)

12. State aid — Commission decision finding aid to be incompatible with the common market — Obligation to state reasons — Scope — Difference between insufficiency of reasoning for a decision and relevance of the reasoning to the substance (Arts 88(2) EC and 253 EC) (see paras 244, 260, 263)

13. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Scope — State aid for regional purposes — Included — Exclusion of operating aid for undertakings save in exceptional cases (Art. 87(3)(a) and (c) EC; Commission Notices 2006/C 54/13 and 2008/C 82/01) (see paras 268-273, 275)

14. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Possible for the Commission to leave to national authorities the task of calculating the exact amount to be recovered — Indication of a repayment methodology in the final decision — Calculation of the amount to be recovered on the basis of a market simulation — No breach of the principle of legal certainty (Art. 88 EC) (see paras 284, 286, 287, 291, 292, 296, 297, 299)

15. State aid — Recovery of unlawful aid — Restoration of the prior situation — No breach of the principle of proportionality (Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(1)) (see paras 308, 311, 312, 315, 317)

16. Public international law — Principles — Good faith — Community law — Protection of legitimate expectations — Adoption of a Community act contrary to an international agreement not yet entered into force but having been subject to lodging by the Community of its instrument of approval (Energy Charter Treaty of 1994) (see para. 321)

Re:

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

Operative part

The Court:

1. Dismisses the action;