Case C-59/23 P: Appeal brought on 6 February 2023 by the Republic of Austria against the judgment of the General Court (Third Chamber) delivered on 30 November 2022 in Case T-101/18, Republic of Austria v Commission
Date: 2023-02-06
Institutions: Court of Justice
Subjects: Hungary, State aid, control of State aid, dominant position, energy market, nuclear industry, nuclear reactor, principle of proportionality, public procurement








C_2023104EN.01001901.xml










20.3.2023   


EN


Official Journal of the European Union


C 104/19






Appeal brought on 6 February 2023 by the Republic of Austria against the judgment of the General Court (Third Chamber) delivered on 30 November 2022 in Case T-101/18, Republic of Austria v Commission
(Case C-59/23 P)
(2023/C 104/24)
Language of the case: German

Parties


Appellant: Republic of Austria (represented by: M. Klamert and F. Koppensteiner, acting as Agents, and H. Kristoferitsch, Rechtsanwalt)

Other parties to the proceedings: European Commission, Grand Duchy of Luxemburg, Czech Republic, French Republic, Hungary, Republic of Poland, Slovak Republic, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The Republic of Austria claims that the Court should:






—


set aside in its entirety the judgment of the General Court of 30 November 2022 in Case T-101/18, Austria v Commission,










—


grant, in its entirety, the action at first instance for annulment of Commission Decision (EU) 2017/2112 of 6 March 2017 on the measure/aid scheme/State aid SA.38454 — 2015/C (ex 2015/N) which Hungary is planning to implement for supporting the development of two new nuclear reactors at Paks II nuclear power station, (1)











—


order the Commission to pay the costs.





Pleas in law and main arguments

The Republic of Austria puts forward four grounds of appeal.
First ground of appeal: failure to carry out a public procurement procedure
The judgment under appeal appears to be unlawful in that, contrary to the view taken by the Court, the failure to carry out a public procurement procedure has an impact on the state aid procedure and renders the decision at issue unlawful.
Second ground of appeal: disproportionate nature of the measure
The judgment under appeal wrongly confirms that the Commission’s proportionality review was sufficient. This applies all the more since, first, it is unclear what exactly the aid measure consists of and, second, the grant equivalent has not been determined.
Third ground of appeal: undue distortions of competition and creation of a dominant market position
The General Court wrongly denies the existence of undue distortions of competition and the creation of a dominant market position. The General Court fails to take into account the fact that through the closure of Paks I nuclear plant energy capacity would become available, which is subject to competition in a liberalised energy market. Moreover, Paks I and II being operated in parallel longer than expected, the independence of both undertakings cannot be guaranteed.
Fourth ground of appeal: inadequate definition of the aid
The General Court was wrong to deny that the aid elements were not defined adequately. The failure to carry out a public procurement procedure, the failure to take into account the costs of debt financing and the failure to calculate a grant equivalent all militate in favour of an inadequate determination of the level of aid.


(1)  
            OJ 2017 L 317, p. 45.