1 By its appeal, the Republic of Austria asks the Court of Justice to set aside the judgment of the General Court of the European Union of 30 November 2022, Austria v Commission (T‑101/18, EU:T:2022:728; ‘the judgment under appeal’), by which the General Court dismissed that Member State’s action seeking the 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 (OJ 2017 L 317, p. 45; ‘the decision at issue’).
2 Article 40 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1), entitled ‘Use of open, restricted and negotiated procedures’, provided, in paragraph 3 thereof: ‘Contracting entities may use a procedure without prior call for competition in the following cases: … (c) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be executed only by a particular economic operator; …’
3 Article 50 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243), entitled ‘Use of the negotiated procedure without prior call for competition’, provides: ‘Contracting entities may use a negotiated procedure without prior call for competition in the following cases: … (c) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons: (i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance; (ii) competition is absent for technical reasons; (iii) the protection of exclusive rights, including intellectual property rights. The exceptions set out in points (ii) and (iii) shall only apply when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement; …’
4 Article 106 of that directive, entitled ‘Transposition and transitional provisions’, provides, in paragraph 1 thereof: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. …’
5 Article 107 of that directive, entitled ‘Repeal’, provides, in the first paragraph thereof: ‘Directive 2004/17/EC is repealed with effect from 18 April 2016.’
6 The background to the dispute is set out in paragraphs 2 to 9 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
7 On 22 May 2015, Hungary notified the European Commission, under document C(2017) 1486, of a measure to provide a financial contribution for the development of two new nuclear reactors at the nuclear power station site at Paks (Hungary), called ‘Paks II’, namely unit 5 and unit 6 thereof (‘the two new nuclear reactors’), in addition to the four nuclear reactors already in operation there. The beneficiary of the notified measure was MVM Paks II Nuclear Power Plant Development Private Company Limited by Shares (‘the Paks II company’), a company that is wholly owned by the Hungarian State and that was intended to become the owner and operating company of the two new nuclear reactors.
8 Pursuant to the terms of an intergovernmental agreement on cooperation on the peaceful use of nuclear energy, concluded on 14 January 2014 by the Russian Federation and Hungary (‘the intergovernmental agreement’), those two States undertook to cooperate, within the framework of a nuclear programme, in the maintenance and further development of the Paks nuclear power station. Pursuant to that agreement, the Russian Federation and Hungary both had to designate one experienced State-owned and State-controlled organisation to be financially and technically responsible for fulfilling its obligations as contractor or owner in respect, in particular, of the design, construction and commissioning of the two new nuclear reactors. The Russian Federation appointed a joint-stock company, Nizhny Novgorod Engineering Company Atomenergoproekt (‘JSC NIAEP’), to construct those two new nuclear reactors, and Hungary designated the Paks II company to own and operate them. For that purpose, JSC NIAEP and the Paks II company signed an agreement on 9 December 2014 relating to a contract for the engineering, procurement and construction of those reactors.
9 In the intergovernmental agreement, the Russian Federation undertook to provide Hungary with a State loan to finance the development of the two new nuclear reactors. That loan was governed by the Financing Intergovernmental Agreement of 28 March 2014 and enabled the provision of a revolving credit facility of EUR 10 billion, which was limited to the sole use of the design, construction and commissioning of those two new nuclear reactors. Hungary undertook to provide an additional amount of EUR 2.5 billion from its own budget in order to finance the investment relating to those reactors. Hungary would not have to transfer the funds required to pay the purchase price for those reactors to accounts belonging to the Paks II company. Most of those funds would be held by the Bank for Development and Foreign Economic Affairs of Russia, Vnesheconombank. On completion of each milestone, the Paks II company would have to file a request with that bank to pay 80% of the amount due directly to JSC NIAEP. The Paks II company would also have to submit a request to the Government Debt Management Agency of Hungary to pay the remaining 20%.
10 In the decision at issue, adopted at the end of the formal investigation procedure under Article 108(2) TFEU, the Commission found that the notified measure amounted to State aid, within the meaning of Article 107(1) TFEU, which, subject to the conditions set out in Article 3 of that decision, was compatible with the internal market, in accordance with Article 107(3)(c) TFEU. As regards the direct award of the construction work for the two new nuclear reactors to JSC NIAEP, the Commission found that that award could not produce additional distortion of competition and trade on the relevant market, namely the electricity market, and that, therefore, the Commission was not, in the light of the applicable case-law, required to ascertain whether that award complied with EU public procurement rules. The Commission stated, in the decision at issue, that, in any event, a separate procedure had been conducted in that regard on the basis of Article 258 TFEU, in the context of which Hungary’s compliance with EU public procurement rules had been examined, without that examination leading to a finding that that Member State had infringed those rules.
11 By application lodged at the Registry of the General Court on 21 February 2018, the Republic of Austria brought an action seeking the annulment of the decision at issue.
12 On 19 July 2018, leave to intervene in the proceedings before the General Court was granted, in support of the form of order sought by the Republic of Austria, to the Grand Duchy of Luxembourg and, in support of the form of order sought by the Commission, to the Czech Republic, the French Republic, Hungary, the Republic of Poland, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland.
13 In the judgment under appeal, the General Court examined and rejected all the pleas in law raised by the Republic of Austria, with the exception of the second and third pleas, which that Member State had withdrawn at the hearing, and therefore dismissed the action.
14 The Republic of Austria claims that the Court should: - set aside the judgment under appeal in its entirety; - uphold in its entirety the action brought at first instance seeking the annulment of the decision at issue; and - order the Commission to pay the costs.
15 The Grand Duchy of Luxembourg claims that the Court should: - set aside the judgment under appeal; - grant in its entirety the application at first instance seeking the annulment of the decision at issue; and - order the Commission to pay the costs.
16 The Commission contends that the Court should: - dismiss the appeal; and - order the Republic of Austria to pay the costs.
17 The Czech Republic contends that the Court of Justice should: - dismiss the appeal; and - order the Republic of Austria to pay the costs.
18 The French Republic, Hungary and, in essence, the Republic of Poland contend that the Court should dismiss the appeal.
19 By document lodged at the Court Registry on 13 March 2025, Hungary requested the Court to order the reopening of the oral part of the procedure, pursuant to Article 83 of the Rules of Procedure of the Court of Justice. In support of its request, it submits, in essence, that it disagrees with some of the assessments set out in the Advocate General’s Opinion. In particular, Hungary disputes the assessments relating to the scope of the Commission’s obligation to examine, in a procedure such as that which gave rise to the decision at issue, whether an aid measure is compatible with provisions of EU law other than those relating to State aid, in particular where the Commission has already carried out such an examination in infringement proceedings against the Member State concerned.
20 In that regard, it must be recalled that, first, the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for parties to submit observations in response to the Advocate General’s Opinion (judgment of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 55 and the case-law cited).
21 Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Advocate General’s Opinion, irrespective of the questions that he or she examines in his or her Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 56 and the case-law cited).
22 It is true that the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of the Rules of Procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
23 In the present case, the Court nevertheless considers, after hearing the Advocate General, that it has before it, after the close of the written part of the procedure and the hearing, all the material necessary for it to give judgment in the present case. It notes that, in any event, Hungary’s request that the oral part of the procedure be reopened, which focuses, above all, on points of law that were already the subject of an exchange of arguments in the written part of the procedure and at the hearing, does not raise any new fact which is of such a nature as to be a decisive factor for the decision which the Court is called upon to deliver in the present case.
24 In those circumstances, there is no need to order the reopening of the oral part of the procedure.
25 In support of its appeal, the Republic of Austria raises four grounds of appeal, alleging that the General Court committed, first, an error of law by finding that the absence of a public procurement procedure for the construction of the two new nuclear reactors did not render the decision at issue unlawful; second, an error of law in respect of the review of the proportionality of the aid measure at issue; third, an error of law as regards the question of the existence of disproportionate distortions of competition and that of the strengthening and/or creation of a dominant position on the market; and, fourth, an error of law as regards the determination of the constituent elements of the aid at issue.
26 The first ground of appeal concerns paragraphs 27 to 50 and 196 to 203 of the judgment under appeal.
27 In the first place, that ground of appeal is directed against the General Court’s rejection of the first plea in law in the action brought at first instance, by which the Republic of Austria had claimed that the decision at issue was unlawful as a result of the fact that the construction of the two new nuclear reactors, which, according to that Member State, is an ‘aspect that is inextricably linked’ to the object of the aid at issue, had been entrusted to JSC NIAEP without a tender procedure having been organised, in breach of EU public procurement rules.
28 In that regard, it should be noted that, in paragraphs 25 to 50 of the judgment under appeal, the General Court found, in essence, first, that, in recitals 279 to 287 of the decision at issue, the Commission had been entitled to rely, primarily, on the principle that it was required to ensure consistency between State aid law and the provisions governing other areas of EU law only where the aspects of the aid at issue are so inextricably linked to the object of the aid that it is impossible to evaluate them separately. Referring to the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), relied on by the Republic of Austria, the General Court found, first of all, that no infringement of provisions of EU law owing to the economic activity promoted by the aid at issue, namely the production of nuclear energy, had been raised before it. Next, according to the General Court, no conclusions could be drawn from the fact that, in that judgment, the Court of Justice had not examined the existence of an inextricable link between the aspects of the aid concerned and that aid itself, since, in the case which gave rise to that judgment, the infringement of principles of EU law relied on derived from the actual object of that aid, namely the development of a power plant producing electricity from nuclear power. Lastly, according to the General Court, that judgment did not show that the Court of Justice had intended to broaden the scope of the review falling to the Commission in that area, since imposing a review obligation irrespective of the existence of such an inextricable link would run counter both to the procedural rules and guarantees specific to the various procedures particular to other areas of EU law and to the principle of autonomy of administrative procedures and remedies. In the light of those considerations, the General Court stated, in paragraph 34 of the judgment under appeal, that the Commission had not erred in law when it considered that it should limit its review, in a procedure conducted under Article 108 TFEU, to the aid measure at issue itself and to the aspects which are inextricably linked to it.
29 Second, the General Court held, in paragraph 35 of the judgment under appeal, that the Republic of Austria incorrectly claimed that the direct award of the construction work for the two new nuclear reactors to JSC NIAEP constituted an ‘aspect that is inextricably linked’ to the object of the aid at issue on the ground that a tender procedure could have resulted in a completely different aid measure, in particular in terms of its amount and structure. In that regard, after stating that the aid at issue consists of the provision, free of charge, of two new nuclear reactors to the Paks II company for the purposes of their operation, the General Court held, in paragraph 36 of the judgment under appeal, that the question of whether the award of the contract for the construction of those two new reactors should have been subject to a tender procedure concerns the manufacture and supply of the asset to be provided free of charge and thus precedes the aid measure itself, with the result that the award decision in respect of the contract for the development and construction of the two new nuclear reactors did not constitute an aspect of the aid itself.
30 In that regard, the General Court held, in paragraph 37 of the judgment under appeal, that the carrying out of a public procurement procedure and the possible use of another undertaking for the construction of the two new nuclear reactors would have altered neither the object of the aid at issue, namely the provision free of charge of two new reactors for the purposes of their operation, nor the beneficiary of that aid, namely the Paks II company. In addition, the General Court stated that an infringement of the EU public procurement rules can produce effects solely on the market for the construction of nuclear power stations and would thus have no consequences for the market covered by the object of the aid measure at issue, namely the electricity market.
31 As regards, in particular, the influence of the absence of a public procurement procedure on the amount of that aid, the General Court held, in paragraph 38 of the judgment under appeal, that it had not been demonstrated that other tenderers could have supplied two reactors with the technology concerned ‘on better terms or at a lower price’. Furthermore, even if the use of such a public procurement procedure might have altered the amount of the aid at issue, that factor would not by itself have had any effect on the advantage which that aid constitutes for its recipient, given that that advantage consists of the provision free of charge of the two new nuclear reactors with a view to their operation. Consequently, according to the General Court, an increase or a reduction in the amount of the aid at issue would have affected neither the actual aid nor its anticompetitive effect.
32 In the second place, the first ground of appeal is directed against the General Court’s rejection of the first part of the tenth plea in law in the action at first instance, alleging an inadequate statement of reasons for the decision at issue as regards the compatibility of the aid with other provisions of EU law. In particular, the Republic of Austria claimed before the General Court that the Commission had not adequately set out the reasons why it had failed to find that the EU public procurement rules had been infringed as a result of the direct award of the contract for the construction of the two new nuclear reactors, which, in that Member State’s submission, was an aspect that was inextricably linked to the object of the aid at issue. The General Court held, in that regard, in paragraphs 197 and 198 of the judgment under appeal, that the Commission had explained, primarily, in recitals 280 to 284 of the decision at issue, that, because a possible infringement of Directive 2014/25 and the object of the aid at issue were not inextricably linked, the compatibility of that aid with the internal market could not be affected by such an infringement. Therefore, the Commission was not required, according to the General Court, to state in the decision at issue the reasons why the conditions laid down in Article 50(c) of Directive 2014/25 were satisfied.
33 In the third place, as is clear from paragraphs 40 and 43 of the judgment under appeal, the General Court found that, in recital 285 of the decision at issue, the Commission had stated that, in any event, it had assessed Hungary’s compliance with Directive 2014/25 in a separate procedure, namely infringement proceedings under reference number NIF 2015/4231-32 (‘the 2015 infringement proceedings’), at the end of which it had concluded that the procedures established by that directive were not applicable to the award of the construction work for the two new nuclear reactors, pursuant to Article 50(c) thereof.
34 Examining, in essence, those grounds included in the decision at issue for the sake of completeness, the General Court held, in paragraph 41 of the judgment under appeal, that the Commission had correctly taken the view that it had been entitled to refer to its assessment carried out in the 2015 infringement proceedings, for the sake of consistency between the outcome of the examination of the compatibility of the aid at issue and the outcome of those infringement proceedings. As is clear from paragraph 42 of the judgment under appeal, the General Court stated that the Commission had considered, more specifically, following an in-depth analysis, that the construction work for the two new nuclear reactors could be awarded directly to JSC NIAEP without a prior call for competition, given that, for technical reasons, no competition existed, and that, therefore, Article 50(c)(ii) of Directive 2014/25 was pertinent. In that regard, according to paragraphs 43 to 46 of the judgment under appeal, the Commission produced before the General Court, following a measure of organisation of procedure, documents from which, in the view of the General Court, it had to be inferred that Hungary had undertaken to follow transparent tender procedures for the majority of the other parts of the project concerned while observing the basic principles of equal treatment and non-discrimination. As is clear, in particular, from paragraph 45 of the judgment under appeal, according to the statements made by the Commission at the hearing before the General Court, that commitment on the part of Hungary was reflected in recital 372 of the decision at issue, which had to be read in conjunction with recital 285 thereof.
35 Furthermore, in paragraph 47 of the judgment under appeal, the General Court found that it cannot be accepted that the procedure relating to the compatibility of aid with the internal market may lead to calling into question all the decisions taken previously and which have already been the subject of a separate procedure, governed by specific rules, within the meaning of the judgment of 15 June 1993, Matra v Commission (C‑225/91, EU:C:1993:239, paragraph 44), and which are different from the rules applicable in the area of State aid. The General Court stated that the principle of legal certainty precludes the Commission from carrying out, in a State aid procedure, a fresh examination of the award of a construction contract while not possessing any new information as against the information it had at the time when it decided to close the previously conducted infringement proceedings. According to the Commission, that was the case at the time of the adoption of the decision at issue as regards the examination of Hungary’s compliance with EU public procurement rules in the context of the award of the contract for the construction of the two new nuclear reactors at the Paks site.
36 As regards the Republic of Austria’s argument that, since infringement proceedings are governed by the principle of expediency, they cannot predetermine the assessment of a potential infringement of EU public procurement rules in the framework of a State aid procedure, the General Court held, in paragraph 48 of the judgment under appeal, that that argument was irrelevant given that the Commission had in fact initiated infringement proceedings, in which it had carried out an analysis of the technical reasons relied on by Hungary and at the end of which it had reached the conclusion that the conditions of Article 50(c) of Directive 2014/25 were satisfied. The sole reason that the outcome of the 2015 infringement proceedings had been described as a ‘preliminary conclusion’ in recital 285 of the decision at issue had been the possibility of initiating fresh proceedings of the same nature at any time on the basis of new information.
37 The first ground of appeal consists of three parts, the first two of which it is appropriate to examine together.
38 In the context of the first part of the first ground of appeal, the Republic of Austria, supported by the Grand Duchy of Luxembourg, criticises, first of all, in essence, the General Court for having, in paragraphs 27 and 201 of the judgment under appeal in particular, drawn an ‘artificial’ distinction between the construction of the two new nuclear reactors and their provision free of charge to the Paks II company, since the General Court accepted only that provision as being the object of the aid measure at issue. More specifically, the Republic of Austria submits that the measures contributing to the object of the aid at issue should be considered as a whole. According to that Member State, the ‘strict distinction’ drawn by the General Court between the provision free of charge of the two new nuclear reactors and the resources that Hungary devoted to it is therefore incorrect. Next, referring, in particular, to paragraphs 2, 65, 73 and 188 of the judgment under appeal, the Republic of Austria claims - formally in the second ground of appeal but in the context of a line of argument that, in essence, is still covered by the first ground of appeal - that the General Court did not provide a single but several descriptions of the aid measure at issue in that judgment.
39 According to the Republic of Austria, the General Court further erred in law in finding that, by the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), the Court of Justice had not intended to broaden the scope of the review falling to the Commission in a procedure such as the aid procedure at issue.
40 The Commission states that the General Court did not commit an error of law in that regard and claims that the Republic of Austria mistakenly confuses the object of the aid at issue and the aspects of that aid. Relying, in particular, on the judgment of 31 January 2023, Commission v Braesch and Others (C‑284/21 P, EU:C:2023:58), the Commission states that the aspects of aid must be assessed in the context of a procedure such as the aid procedure at issue only where they are so indissolubly linked to the object of the aid concerned that it is impossible to evaluate them separately. According to the Commission, the General Court correctly drew a distinction, in the present case, between, on the one hand, the aid at issue and its object and, on the other, the aspects of that aid, and was entitled to hold, in paragraph 36 of the judgment under appeal, that a tender procedure relating to the contract for the development and construction of two nuclear reactors precedes the aid measure itself, namely the ‘provision free of charge of two new nuclear reactors to the Paks II company for the purpose of their operation’, and therefore does not constitute an aspect of the aid at issue itself.
41 Furthermore, according to the Commission, the General Court was entitled to find that the carrying out of a public procurement procedure and the possible use of another undertaking for the construction of the two new nuclear reactors would have altered neither the object nor the beneficiary of the aid at issue. The Commission submits that, even assuming that there had been an infringement of the EU public procurement rules, which it claims was not the case, the effects of that infringement would have been limited to the market for the construction of nuclear power stations and would not have had consequences for the electricity market, concerned by the aid measure at issue. Similarly, assuming that the amount of the aid at issue could have been affected by the direct award of the contract for the construction of the two new nuclear reactors, which it submits was also not the case, the Commission claims that, in any event, it carried out its assessment of the proportionality of the measure concerned with due care, taking into account all the relevant factors.
42 By the second part of the first ground of appeal, the Republic of Austria submits, first of all, in essence, that, contrary to what the General Court stated, in paragraphs 35 to 39 of the judgment under appeal in particular, the award of the contract for the construction of the two new nuclear reactors is directly linked to the aid measure at issue. It relies, in that regard, on the objective of guaranteeing fair and undistorted competition on the internal market, common to the law on public procurement and the law on State aid. Next, the Republic of Austria submits that, in reality, the provision of the two new nuclear reactors and the loan granted by the Russian Federation to Hungary are extremely closely linked, since the Russian and Hungarian authorities designed and implemented, as is apparent from the intergovernmental agreement, the project concerned as ‘forming a whole’.
43 Again in the context of the first ground of appeal, referring, on that point, to the arguments it has put forward in the second ground of appeal, the Republic of Austria further states that the infringement of public procurement law has an impact on the aid itself, and more specifically on the proportionality and the amount of that aid. It states also that a tender procedure in accordance with the provisions of public procurement law could have resulted in completely different aid, as regards, in particular, the amount and structure of that aid, inasmuch as a more advantageous tender for the construction of the two new nuclear reactors would have directly reduced the amount of the aid at issue.
44 In that regard, the Republic of Austria challenges paragraphs 36 and 38 of the judgment under appeal inasmuch as the General Court found therein that an increase or a reduction in the amount of the aid at issue would not lead to an alteration to the actual aid or to a modification of its anticompetitive effect. According to the Republic of Austria, if a more advantageous tender could have been submitted, in a tender procedure, and accepted, the aid at issue could have been different in terms of its amount and structure. Thus, that Member State claims that, in the absence of a tender procedure, it cannot be guaranteed that the aid at issue is genuinely proportionate, that is to say, limited to the minimum required.
45 The Commission contends that it is apparent from the judgment of 22 March 1977, Iannelli & Volpi (74/76, EU:C:1977:51), that only the aspects that cannot be evaluated separately are indissolubly linked to the object of an aid measure. In the present case, the question of the compatibility of the aid at issue with EU public procurement rules could be evaluated separately and, moreover, was evaluated in that manner in the 2015 infringement proceedings.
46 As regards the Republic of Austria’s argument based on the intergovernmental agreement (see paragraph 42 above), the Commission submits, next, that that argument is raised for the first time in the appeal and that it is therefore inadmissible.
47 Furthermore, the Commission claims that the possibility that the amount and structure of the aid at issue might have been different had a tender procedure been carried out is also not a relevant factor, given that the review of the proportionality of the aid at issue would not have led to a different outcome. According to that institution, it is apparent from paragraph 38 of the judgment under appeal that, since the object of that aid consists of the provision free of charge of two new nuclear reactors, an increase or a reduction in the amount of that aid does not, as such, entail a different assessment.
48 At the hearing before the Court, the Commission stated that the amount of the investment under the aid measure at issue is EUR 12.5 billion, of which EUR 10 billion has been granted as a loan by the Russian Federation on the basis of the intergovernmental agreement and EUR 2.5 billion corresponds to Hungary’s own funds. The Commission stated that an economic operator on the market would not have obtained sufficient profits through such an investment before claiming that, without the aid provided by Hungary, the project at issue would not have been implemented and that, consequently, that Member State would have had to invest EUR 12.5 billion. In that respect, in response to a question put to it by the Court of Justice, the Commission confirmed that the amount of EUR 12.5 billion corresponds to the cost of the construction of the two new nuclear reactors and to certain investments associated with the operation of those reactors by the Paks II company.
49 The French Republic submits, in essence, that, by its line of argument relating to the direct award of the contract for the construction of the two new nuclear reactors being an aspect that is inextricably linked to the aid at issue, the Republic of Austria is in fact seeking to challenge the General Court’s appraisal of the facts and the assessment of the evidence. The French Republic asserts that, save where the facts or evidence are distorted, that appraisal and that assessment do not constitute a point of law subject, as such, to review by the Court of Justice on appeal.
50 By the first and second parts of the first ground of appeal, the Republic of Austria is seeking to call into question the analysis in paragraphs 35 to 38 of the judgment under appeal, inasmuch as the General Court, at the end of that analysis, endorsed the conclusion set out, primarily, in recital 284 of the decision at issue, according to which, in the absence of an indissoluble link between a possible infringement of the EU public procurement rules and the object of the aid at issue, the assessment of the compatibility of that aid with the internal market could not be affected by such an infringement.
51 The Republic of Austria submits, in essence, that the General Court erred in law, first, inasmuch as it excluded the construction of the two new nuclear reactors from the definition of the object of the aid measure at issue and, second, inasmuch as it endorsed the Commission’s finding that the direct award of the contract for that construction work does not constitute an aspect of that aid that is inextricably linked to the object of the aid.
52 In that regard, it should be borne in mind that, according to settled case-law, the procedure under Article 108 TFEU must never produce a result which is contrary to the specific provisions of the Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 96 and the case-law cited).
53 As the Advocate General observed, in essence, in point 33 of her Opinion, it is therefore clear from the case-law of the Court that the Commission must take into account infringements of provisions of EU law other than those relating to State aid where such an infringement arises from the economic activity financed, from the aid or from its object as such or from aspects inextricably linked to the object of the aid (see, to that effect, judgments of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraph 14, and of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraphs 98 and 103 and the case-law cited).
54 Thus, where the modalities of an aid measure are so indissolubly linked to its object that it is impossible to evaluate them separately, their effect on the compatibility or incompatibility of that aid viewed as a whole must therefore of necessity be determined in the framework of the procedure prescribed in Article 108 TFEU (judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 97 and the case-law cited). Such modalities are therefore among the factors which the Commission is required to examine and, as the case may be, to approve, with the result that, if they lead to an infringement of provisions or general principles of EU law, a decision adopted by the Commission authorising that aid would necessarily be rendered unlawful (see, to that effect, judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 99).
55 In that regard, the General Court was entitled to hold, in paragraph 30 of the judgment under appeal, that it cannot be inferred from the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), that the Court of Justice intended to abandon its case-law under which a distinction must be drawn between aspects that are inextricably linked to the object of the aid and aspects that are not, and that, accordingly, the arguments of the Republic of Austria in that regard had to be rejected. It is true that the Court of Justice did not refer, in the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), to its case-law on the aspects that are inextricably linked to an aid measure or the object thereof. Nevertheless, that was due to the fact that, in the case that give rise to that judgment, the only issue was an alleged infringement of EU law arising from the very economic activity itself that the aid in question in that case was intended to finance and that, as a result, could not be separated from the object of that aid (see, to that effect, judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 98).
56 First of all, it must be ascertained whether the General Court was entitled to define the object of the aid at issue in paragraph 36 of the judgment under appeal as consisting solely of ‘the provision free of charge of two new nuclear reactors to the Paks II company for the purpose of their operation’, thus excluding their construction from that object.
57 As regards, as a preliminary point, the admissibility of the argument directed against paragraph 36 of the judgment under appeal, it should be noted, first, that, although, in accordance with Article 170(1) of the Rules of Procedure, the subject matter of the proceedings before the General Court may not be changed in the appeal, an appellant is nevertheless entitled to lodge an appeal relying on grounds and arguments which arise from the judgment under appeal itself and seek to criticise, in law, its correctness (see, to that effect, judgment of 4 October 2024, Aeris Invest v Commission and SRB, C‑535/22 P, EU:C:2024:819, paragraph 146 and the case-law cited). Therefore, contrary to what the French Republic maintains in its rejoinder, the Republic of Austria is entitled to raise, for the first time in the appeal, a line of argument directed against the General Court’s definition of the object of the aid at issue as set out in paragraph 36 of the judgment under appeal.
58 Second, according to the case-law, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. The jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the distortion of the facts, namely the substantive inaccuracy of those findings as apparent from the documents in the file, distortion of the evidence, the legal characterisation of the evidence, and whether the rules relating to the burden of proof and the taking of evidence have been observed (see judgment of 10 September 2024, Commission v Ireland and Others, C‑465/20 P, EU:C:2024:724, paragraphs 168 and 169 and the case-law cited). In the present case, by its line of argument concerning the General Court’s definition of the object of the aid measure at issue, the Republic of Austria has not disputed the General Court’s findings of facts but rather its legal characterisation of those facts.
59 As regards the merits of the assessment set out in paragraph 36 of the judgment under appeal, the General Court relied on the premiss recalled in paragraph 56 above to find that ‘the question of whether the award of the contract for the construction of those two reactors should have been subject to a tender procedure concerns the manufacture and supply of the asset to be provided free of charge and thus precedes the aid measure itself’, before concluding that, ‘accordingly, the award decision in respect of the contract for the development and construction of the two new [nuclear] reactors does not constitute an aspect of the aid itself’.
60 A process the essential aspects of which are apparent from the notification of the aid measure at issue and which forms an integral part of that measure cannot be excluded from the object of that measure, since it amounts to a factor that is necessary for the implementation of that measure and, therefore, for the attainment of its objective.
61 In the present case, as is clear from paragraph 2 of the judgment under appeal, the objective of the aid planned by Hungary is to support the activity of nuclear energy production, an objective which is pursued by means of a project aimed, according to the very title of the notification of the aid measure at issue, at the ‘development of two new nuclear reactors’. It is clear also from paragraphs 5 and 6 of the judgment under appeal that, according to the intergovernmental agreement, the development of those two new nuclear reactors includes their design and construction, a process whose essential aspects, namely, in particular, the identity of the constructor and the technical specifications of those two new nuclear reactors, were apparent from the notification of the aid measure at issue.
62 Moreover, in recital 9 of the decision at issue, cited in paragraph 116 of the judgment under appeal, it is stated, under point 2.1, entitled ‘Description of the project’, that ‘the measure consists of the development of two … nuclear reactors … in Hungary, whose construction is fully financed by the Hungarian State for the benefit of the entity Paks II … that will own and operate the new reactors’. In the same context, in recitals 324 to 328 of that decision, the notified aid measure is described by the Commission as an ‘appropriate instrument for the construction of the … new reactors’ addressing ‘the objective of common interest of the promotion of nuclear energy’.
63 As regards the amount of the aid at issue, it is clear from paragraph 188 of the judgment under appeal, which reproduces the information set out in recital 15 of that decision, that that aid ‘includes a revolving credit facility of EUR 10 billion and an additional amount of up to EUR 2.5 billion paid by the Hungarian State’. As is clear from paragraph 7 of that judgment, that credit facility was, according to the intergovernmental agreement, provided by means of the loan granted to Hungary by the Russian Federation and is limited to the sole use of the design, construction and commissioning of the two new nuclear reactors. Lastly, as stated in paragraph 48 above, at the hearing, the Commission confirmed that the amount invested by Hungary in the framework of the project at issue corresponds, inter alia, to the cost of the construction of those two new nuclear reactors.
64 It must therefore be stated that, since the construction of those reactors is, first, a factor that is necessary for the attainment of the objective pursued by the notified measure at issue and, second, a process financed, at least indirectly, with Hungary’s resources, that construction forms an integral part of the aid measure notified by that Member State and could not, therefore, validly be excluded by the General Court from the object of that measure.
65 Accordingly, the General Court’s statement, in paragraph 36 of the judgment under appeal, that the sole object of that aid is ‘the provision free of charge of two new nuclear reactors to the Paks II company for the purpose of their operation’ is based on an incorrect legal characterisation of the relevant facts.
66 In those circumstances, next, it must be ascertained whether, despite the error in the legal characterisation of the facts established in paragraph 65 above, the General Court was entitled, in paragraph 39 of the judgment under appeal, to endorse the primary conclusion reached in the decision at issue, according to which the direct award of the contract for the construction of the two new nuclear reactors, namely the award of that contract to JSC NIAEP without a public tender procedure, does not constitute an aspect that is inextricably linked to the object of that aid, for the purposes of the case-law cited in paragraph 54 above.
67 It should be borne in mind that, according to settled case-law, if the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part of that judgment is shown to be well founded on other legal grounds, such an infringement cannot lead to the setting aside of that judgment, and a substitution of grounds must be made (judgment of 14 December 2023, Commission v Amazon.com and Others, C‑457/21 P, EU:C:2023:985, paragraph 51 and the case-law cited).
68 In that regard, the direct award of the contract for the construction of the two new nuclear reactors necessarily amounts to an aspect that is linked to the object of the aid at issue, since, as stated in paragraph 64 above, that construction forms an integral part of the measure at issue notified by Hungary, aimed at the provision free of charge of the two new reactors to the Paks II company.
69 Nevertheless, as the Advocate General observed, in essence, in point 48 of her Opinion, it is still necessary to examine whether that aspect may be regarded as being so inextricably linked to the object of the aid at issue that the Commission was required to include an assessment of whether that aspect complies with EU public procurement rules in its examination of the compatibility of that aid with the internal market.
70 As recalled in paragraph 54 above, the Commission must assess, in the procedure prescribed by Article 108 TFEU, the indissociable aspects of the object of aid, that is to say, the modalities which are so indissolubly linked to its object that it is impossible to evaluate them separately, with the result that their effect on the compatibility or incompatibility with the internal market of that aid viewed as a whole must therefore of necessity be determined in the framework of that procedure.
71 By contrast, aspects which, although forming part of the aid measure at issue, are not specifically necessary for the attainment of its objective or for its functioning are not aspects that are inextricably linked to the object of the aid (see, to that effect, judgments of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:5, paragraph 14, and of 2 May 2019, A-Fonds, C‑598/17, EU:C:2019:352, paragraph 47 and the case-law cited). Thus, the Court has held that measures adopted by the Member State concerned that are linked de facto but are legally distinct do not constitute indissociable aspects of an aid measure (order of 14 December 2023, CAPA and Others v Commission, C‑742/21 P, EU:C:2023:1000, paragraph 93 and the case-law cited).
72 In the present case, contrary to what the General Court held in paragraph 39 of the judgment under appeal, the direct award of the contract for the construction of the two new nuclear reactors is an aspect that is inextricably linked to the object of the aid measure notified by Hungary to the Commission, which is aimed at developing those reactors with a view to their provision, free of charge, to the Paks II company. As is clear from the findings made by the General Court in paragraphs 6 to 8 of the judgment under appeal, the aspect consisting in that award is indispensable for the attainment of the objective of the aid defined in that manner.
73 According to those findings, the Russian Federation undertook to grant Hungary a loan in order to finance the development of the two new nuclear reactors of the Paks nuclear power station, to be constructed by JSC NIAEP, designated by the Russian Federation, on the understanding that most of the funds necessary for that development would be held by the Bank for Development and Foreign Economic Affairs of Russia and that that bank would make payments to JSC NIAEP, upon request by the Paks II company, for each milestone event in the construction of those reactors that is considered to be fulfilled. That loan thus consists of a revolving credit facility of EUR 10 billion, which is limited to the sole use of the design, construction and commissioning of those new reactors. In addition, provision was made for the additional amount of EUR 2.5 billion from Hungary’s own budget, necessary to finance that development, also to be paid directly to JSC NIAEP upon request by the Paks II company, in that case by that Member State’s Government Debt Management Agency.
74 That financing arrangement, which is specifically aimed at developing the new reactors with a view to their provision free of charge to the Paks II company and which provides for the gradual release of the funds to JSC NIAEP as the construction work on the two new nuclear reactors concerned progresses, confirms that the direct award of the contract for the construction of those reactors to JSC NIAEP is inextricably linked to that provision free of charge.
75 It follows that, in accordance with the case-law referred to in paragraph 52 above, a potential infringement, by that indissociable aspect of the aid measure at issue, of provisions or general principles of EU law, such as the EU public procurement rules, could preclude that measure from being declared compatible with the internal market, in a procedure under Article 108 TFEU.
76 An analysis of the conformity of the direct award of the contract for the construction of the two new nuclear reactors with those rules was all the more necessary since the organisation of an open, impartial and unconditional tender procedure for the award of a contract for the construction of infrastructure is, as the Republic of Austria correctly submits, likely to have an impact, inter alia, on the cost of the investment required for that construction and on the properties of that infrastructure and, accordingly, on the extent of any advantage granted to an undertaking or group of undertakings by that means (see, to that effect and by analogy, judgments of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 94; of 7 March 2018, SNCF Mobilités v Commission, C‑127/16 P, EU:C:2018:165, paragraph 140; and of 17 November 2022, Volotea and easyJet v Commission, C‑331/20 P and C‑343/20 P, EU:C:2022:886, paragraph 126 and the case-law cited).
77 It is true that it is clear from the case-law of the Court of Justice that it is not for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (judgment of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraph 56 and the case-law cited). Nevertheless, in the present case, as is clear from recitals 279 to 287 of the decision at issue, to which paragraph 25 of the judgment under appeal refers, the question of the compatibility of the direct award of the contract for the construction of the two new nuclear reactors with EU public procurement rules had been raised by numerous interested parties during the procedure which led to the decision at issue.
78 It must therefore be stated, in the first place, that the General Court erred in holding, in paragraph 38 of the judgment under appeal, that the Commission was entitled to consider that the lawfulness of the decision at issue did not depend on Hungary’s compliance with EU public procurement rules on the ground that, even if the use of a tender procedure might have altered the amount of the aid, that factor would not by itself have had any effect on the advantage which that aid constituted for its recipient, consisting of the provision free of charge of two new nuclear reactors to the Paks II company, with a view to their operation. Such a finding is incompatible with the fact that the aspect consisting in the direct award of the contract for the construction of those reactors is inextricably linked to that provision and thus had to be included in the examination of the compatibility of the aid measure at issue with the internal market, in the procedure under Article 108 TFEU.
79 In the second place, the General Court’s finding, in paragraph 37 of the judgment under appeal, that ‘an infringement of the rules on public procurement would produce effects solely on the market for the construction of nuclear power stations and would have no consequences for the market covered by the object of the aid measure at issue’ is also vitiated by an error. A condition such as that set out in that paragraph of the judgment under appeal is in no way apparent from the case-law cited in paragraph 52 above. As the Advocate General observed in point 56 of her Opinion, it is clear from the case-law of the Court that, when the Commission assesses whether proposed aid satisfies the condition laid down in Article 107(3)(c) TFEU of not adversely affecting trading conditions to an extent contrary to the common interest, it must take into account the negative effects that that aid may have on competition and trade between Member States in general (see, to that effect, judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 101).
80 Accordingly, it cannot be ruled out that an infringement of a provision of EU law which is liable to produce a distortion of competition on a market that is different from but linked to the market covered by the notified aid measure must be taken into consideration by the Commission in its examination of the compatibility of that measure with the internal market. That is true, in the present case, of any distortion of competition which might have resulted, on the market for the construction of nuclear power stations, from the award of the contract for the construction of the two new nuclear reactors at the Paks site in breach of EU public procurement rules, since that award is an aspect that is inextricably linked to the object of the aid measure at issue.
81 It is clear from all the foregoing considerations that, in the light of the Commission’s primary conclusion reached in the decision at issue, according to which it was not required to examine whether the direct award of the contract for the construction of the two new nuclear reactors was consistent with EU public procurement rules, the General Court erred in law inasmuch as it held, first, in paragraph 36 of the judgment under appeal, that the object of the aid measure at issue does not include the construction of those two new reactors and, second, in paragraph 39 of the judgment under appeal, that the Commission was fully entitled to take the view that the award of the contract for the construction of those two new nuclear reactors does not constitute an aspect of that aid that is inextricably linked to it.
82 Consequently, the first and second parts of the first ground of appeal must be upheld.
83 Nevertheless, it is also necessary to examine the third part of that first ground of appeal, by which the Republic of Austria challenges the General Court’s examination of the Commission’s conclusion, made for the sake of completeness, that, in essence, the direct award of the contract for the construction of the two new nuclear reactors did not, in any event, give rise to an infringement of Directive 2014/25.
84 By the third part of the first ground of appeal, the Republic of Austria, supported by the Grand Duchy of Luxembourg, challenges paragraphs 40 to 50 of the judgment under appeal, in particular paragraph 41 thereof, in which the General Court stated, in essence, that, even if the direct award of the contract for the construction of the two new nuclear reactors could be classified as an aspect that is inextricably linked to the aid measure at issue or to its object, the Commission was entitled to take the view, in recital 285 of the decision at issue, that it could refer, for the sake of completeness, to its assessment carried out in that respect in the 2015 infringement proceedings. The Republic of Austria submits that, as is apparent from paragraph 40 of the judgment under appeal, the Commission stated that, in any event, Hungary’s compliance with the EU public procurement rules had been assessed in those infringement proceedings, the preliminary conclusion of which had been that the procedures laid down in Directive 2014/25 were not applicable to the award of that construction contract, pursuant to Article 50(c) of that directive.
85 According to the Republic of Austria, a mere reference to non-public infringement proceedings that have been closed, namely the 2015 infringement proceedings, does not amount to an adequate statement of reasons, especially since observations concerning the possible infringement of public procurement law had been submitted to the Commission before the adoption of the decision at issue. That Member State further submits that that assertion is borne out by the fact that the General Court had to ask the Commission, following a measure of organisation of procedure, to provide it with the relevant documents on the 2015 infringement proceedings, without which the General Court could not have established whether there had been an infringement of the EU public procurement rules.
86 Furthermore, the Republic of Austria submits that the exception provided for in Article 50(c)(ii) of Directive 2014/25 should be interpreted strictly. According to that Member State, it is likely that the technical requirements of the project at issue, which focus on safety aspects, were artificially restricted to the Russian construction model so that Russian financing could be obtained.
87 In that regard, the Republic of Austria submits that, contrary to what the General Court stated in paragraph 38 of the judgment under appeal, it was not for that Member State to demonstrate that other tenderers could have supplied the two new nuclear reactors ‘on better terms or at a lower price’.
88 Lastly, the Republic of Austria claims that neither the principle of res judicata nor the principle of legal certainty precludes infringement proceedings which have been closed from being reopened at any time. Thus, according to the Republic of Austria, if the Commission had concluded in the present case, in its assessment of the aid measure at issue, that the EU public procurement rules had been infringed, there would have been nothing to prevent it from initiating new infringement proceedings against Hungary.
89 The Commission claims that the General Court was entitled to find, in paragraph 41 of the judgment under appeal, that that institution could rely on infringement proceedings which have been closed. It submits that it is apparent from the evidence produced before the General Court, following a measure of organisation of procedure, that the direct award of the construction work for the two new nuclear reactors for technical reasons in accordance with Article 50(c) of Directive 2014/25 was warranted ‘for the core parts of the project’. The Commission claims that, in order to reach a satisfactory solution, Hungary had also expressed its readiness to act transparently ‘with regard to most of the other parts of the project’. That commitment ‘enabled the Commission to close the infringement proceedings’. Furthermore, that institution submits that examining the conformity with EU law of the direct award of the construction work for those two new reactors in the procedure which gave rise to the decision at issue, where it had already done so in the infringement proceedings, would have undermined the efficient use of the Commission’s resources.
90 According to the Commission, Hungary’s decision on the matter is a ‘strategic sovereign decision of the Member State’, which it had no reason to challenge. It states that that decision is also warranted by previous experience with the constructor concerned, and, as the General Court stated in paragraph 46 of the judgment under appeal, the Commission’s Joint Research Centre (JRC) and the experts from its Directorate-General (DG) for Energy had confirmed the unique technical nature of the VVER 1200 reactor manufactured by that constructor and selected by Hungary. Moreover, since only one contractor existed for the core parts of the project, it was warranted to award the contract in its entirety to that constructor.
91 The Commission claims that it is not sufficient for the Republic of Austria to refer to an infringement of the EU public procurement rules, in particular in the light of the fact that, in the present case, ‘a market assessment had revealed that there was no other supplier available’. Accordingly, the Commission states that the General Court did not ask the Republic of Austria to provide ‘impossible proof’, but merely found, in paragraph 64 of the judgment under appeal, that, in the circumstances of the present case, it was for that Member State to submit evidence indicating that another solution existed for the construction of those two new reactors.
92 Moreover, according to the Commission, the evidence it adduced before the General Court concerning the 2015 infringement proceedings (see paragraph 34 above) clearly demonstrated that the direct award of the construction work for those reactors was warranted for the core parts of the project at issue. According to the Commission, the General Court was entitled to find, in paragraph 47 of the judgment under appeal, that it would have been contrary to the principle of legal certainty to adopt, in the decision at issue, a position contrary to that of the Commission in the 2015 infringement proceedings.
93 Lastly, at the hearing before the Court of Justice, the Commission maintained that, at the time of the award in 2014, JSC NIAEP was the only available supplier of the nuclear technology concerned and that that technology was the most appropriate, if not the only one, for the implementation of the project at issue. The Commission stated that no other technology could meet the technical specifications relating to the 2400 megawatts appropriate for the Hungarian market and that it was for that reason that the two new nuclear reactors had to be regarded as covered by the object of the aid at issue. Furthermore, it stated that the Court of Justice should carry out its assessment against the situation on the market for the construction of nuclear reactors in 2017. At that time, only reactors with that technology were adapted to the Paks site, if only for safety reasons.
94 The French Republic submits that, inasmuch as the Republic of Austria alleges a failure to state reasons for the decision at issue, its line of argument is inadmissible, since the Republic of Austria did not raise those arguments before the General Court. In that regard, the Commission claims, in its rejoinder, that the Republic of Austria has not even claimed that paragraph 40 et seq. of the judgment under appeal, relating to the 2015 infringement proceedings, are vitiated by a failure to state reasons. The Republic of Poland submits that any line of argument advanced by the Republic of Austria challenging the findings of fact made by the General Court in respect of the 2015 infringement proceedings is inadmissible.
95 In any event, the French Republic contends that the Commission provided adequate reasons for the decision at issue as regards Hungary’s compliance with Directive 2014/25. According to the French Republic, since the corresponding grounds had been included ‘for the sake of completeness’, it was open to the Commission to adopt a limited statement of reasons, without thereby infringing Article 296 TFEU, while at the same time reconciling the requirement to state reasons with the confidential nature of information pertaining to infringement proceedings that have been closed. In that regard, the Republic of Poland submits that, having regard to the sensitive nature of the relevant information, the Republic of Austria could not reasonably expect that it would be made public.
96 By the third part of the first ground of appeal, the Republic of Austria criticises the General Court, first, for having erred in law in finding that the Commission had stated to the requisite legal standard the reasons for its conclusion set out for the sake of completeness in recital 285 of the decision at issue. In that recital, the Commission stated, in essence, that, even if it were required to examine the compatibility of the direct award of the construction work for the two new nuclear reactors with the EU public procurement rules, there would be no infringement of Directive 2014/25, since that direct award came within the scope of Article 50(c) thereof.
97 Second, the Republic of Austria relies on a series of arguments directed against the Commission’s finding that there was no infringement of Directive 2014/25.
98 As regards the arguments put forward, inter alia, by the French Republic concerning the admissibility of the complaint alleging a failure to state reasons for the decision at issue, it is sufficient to note that, by the first part of the tenth plea in law in the action brought before the General Court, the Republic of Austria had alleged a failure to state reasons for the decision at issue. Moreover, it is unequivocally clear from paragraph 41 of the judgment under appeal that the Republic of Austria also expressly disputed before the General Court the fact that the Commission had, for the sake of completeness, referred, in recital 285 of the decision at issue, to the assessment that it had carried out in the 2015 infringement proceedings.
99 In any event, a failure to state reasons, which is an infringement of an essential procedural requirement, amounts to a plea involving a matter of public policy which may be examined at any stage of the proceedings, even if the party relying on it has failed to do so before the General Court (see, to that effect, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 48 to 50, and of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 57).
100 Accordingly, the complaint alleging a failure to find that no reasons were stated for the decision at issue, put forward in the third part of the first ground of appeal, is admissible.
101 As regards the merits of the line of argument put forward in that third part, it should be borne in mind that, according to settled case-law, the obligation to state reasons laid down in Article 296 TFEU is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the act at issue. The statement of reasons required by that article must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that act in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to carry out its review. In that regard, 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 for an act meets the requirements of that article 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 (see judgment of 10 September 2024, Commission v Ireland and Others, C‑465/20 P, EU:C:2024:724, paragraphs 389, 391 and 392 and the case-law cited).
102 It is in the light of that case-law that it is necessary to examine whether the General Court erred in law in holding, in essence, that the conclusion set out for the sake of completeness in recital 285 of the decision at issue was reasoned to the requisite legal standard by making a reference to the 2015 infringement proceedings.
103 It should be borne in mind that, in that recital, the Commission merely stated that ‘Hungary’s compliance with [Directive 2014/25 had] been assessed in a separate procedure by the Commission where the preliminary conclusion on the basis of available information [had been] that the procedures laid down in [that directive] would be inapplicable to the entrustment of construction works of two reactors on the basis of its Article 50(c).’
104 It is true that, as the Advocate General observed in point 70 of her Opinion, those infringement proceedings and a procedure under Article 108 TFEU may be combined where a State measure falls at the same time within the scope of the State aid provisions and of other provisions of the Treaty.
105 Nevertheless, it must also be recalled that the Court has held that the Commission does not have the power to determine conclusively, in the context of infringement proceedings, the rights and obligations of a Member State or to afford that State guarantees concerning the compatibility of a given line of conduct with EU law, given that, under Article 260(1) TFEU, the Court alone has jurisdiction to find that a Member State has failed to fulfil an obligation under the Treaties. Accordingly, the closure by the Commission of infringement proceedings against a Member State, which amounts to the exercise of a discretion it enjoys, which, moreover, the Court cannot review, cannot be decisive for the purpose of determining whether the national legislation or the national measure that was the subject of those proceedings is consistent with EU law (see, to that effect, judgment of 4 October 2024, Tecno*37, C‑242/23, EU:C:2024:831, paragraphs 29, 32 and 33 and the case-law cited).
106 Thus, in the present case, it is true that there was nothing to prevent the Commission from referring, in the decision at issue, to the 2015 infringement proceedings and, in particular, to the conclusions which it had drawn from the assessments it had carried out on that occasion, taking account, as the case may be, of information or evidence that it might have received after the closure of those proceedings and prior to the adoption of the decision at issue.
107 By contrast, having regard to the case-law cited in paragraph 105 above, a mere reference to such infringement proceedings and to the provision which, according to the Commission, is applicable in the present case, without any indication of the other specific factors taken into consideration by that institution or of the methodology pursuant to which it reached its conclusion, cannot satisfy the requirements of Article 296 TFEU.
108 As is clear from paragraph 103 above, the reasons set out by the Commission in recital 285 of the decision at issue do not contain any information capable of showing in a clear and unequivocal fashion the reasoning of that institution that enabled it to reach the conclusion that the direct award of the contract for the construction of the two new reactors at the Paks site complied with Directive 2014/25.
109 Nor can it be inferred therefrom why the Commission relied on that directive in the decision at issue, even though, in accordance with Article 106(1) and the first paragraph of Article 107 of that directive, the time limit for its transposition had been set at 18 April 2016 and Directive 2004/17 was repealed only with effect from that date. That is all the more so since, when answering a question in that regard put to it by the Court of Justice at the hearing, the Commission stated that it is Directive 2004/17 that applies, ratione temporis, to the case at hand.
110 In any event, even assuming that the General Court took into account, in its assessment, not only recital 285 of the decision at issue, but also recital 372 thereof, as the Commission requested it to do (see paragraph 34 above), it must be stated that recital 372 likewise does not disclose any information such as that referred to in paragraphs 108 and 109 above. Recital 372 is in the part of that decision devoted to the potential effects of the parallel operation of the existing nuclear reactors at the Paks site and the two new nuclear reactors. Although it is stated therein that that would be the first time the technology selected for the construction of those two new nuclear reactors would be used in Europe and that ‘the technically non-exempted part of the project [would] be procured in line with EU procurement requirements’, those aspects are referred to in the context of Hungary’s submission of observations without being expressly endorsed by the Commission.
111 Furthermore, as regards the evidence obtained following a measure of organisation of procedure, which the General Court took into account in paragraphs 42 to 46 of the judgment under appeal, referred to in paragraph 34 above, and the evidence to which the Commission referred at the hearing before the Court of Justice, referred to in paragraph 93 above, it is sufficient to recall that the fact that the Commission provided, in the course of the present proceedings, both before the General Court and before the Court of Justice, information that, as the case may be, is capable of providing reasons for the decision at issue cannot compensate for the inadequacy of the initial statement of reasons for that decision. Save in exceptional circumstances, the statement of reasons may not be explained for the first time ex post facto before the Courts (see, by analogy, judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium, C‑101/22 P, EU:C:2023:396, paragraph 88 and the case-law cited). No such circumstances are apparent either from the judgment under appeal or from the file submitted to the Court of Justice.
112 In those circumstances, it must be stated that the General Court erred in law in holding, in paragraph 48 of the judgment under appeal, that, in the present case, the Commission was entitled to rely, for the sake of completeness, on the outcome of the 2015 infringement proceedings.
113 Furthermore, it should be noted that the present case cannot be compared with the cases which gave rise to the judgments of 23 November 2023, Ryanair and Airport Marketing Services (C‑758/21 P, EU:C:2023:917), and of 23 January 2025, Neos v Ryanair and Commission (C‑490/23 P, EU:C:2025:32).
114 It is true that, in paragraph 97 of the judgment of 23 November 2023, Ryanair and Airport Marketing Services (C‑758/21 P, EU:C:2023:917), the Court of Justice stated that, in a procedure under Article 108 TFEU, the Commission could fulfil its obligation to state reasons without it being necessary to address the arguments of interested parties other than the Member State concerned, since it was apparent, at least implicitly, from the decision at issue in the case which gave rise to that judgment that the Commission considered that the line of argument which those parties advanced before it could not be accepted. Nevertheless, as can be inferred from paragraphs 92 and 93 of that judgment, those parties had received documents sent by the Commission from which they should have been able to infer the evidence which they criticised the Commission for not having specifically indicated in that decision.
115 That is not the case here, given that it has not been established that all of the aspects of the infringement proceedings capable of compensating for the deficiencies of recital 285 of the decision at issue in that regard were public or, at the very least, accessible to the interested parties that participated in the procedure conducted by the Commission under Article 108(2) TFEU.
116 Nor can the present case be compared to that which gave rise to the judgment of 23 January 2025, Neos v Ryanair and Commission (C‑490/23 P, EU:C:2025:32). As is apparent from paragraphs 35 and 51 of that judgment, the Court, in that case, applied the case-law according to which a decision not to raise objections in respect of an aid measure under Article 108(3) TFEU, taken, moreover, within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market. That case-law cannot, in any event, be applied here, since the decision at issue was not taken at the end of the preliminary examination stage provided for in Article 108(3) TFEU.
117 Moreover, the French Republic’s line of argument set out in paragraph 95 above, by which that Member State claims, in essence, that, when it refers to infringement proceedings that have been closed, the Commission is required to observe the principle of confidentiality, which could warrant a succinct statement of reasons in that regard satisfying the requirements of Article 296 TFEU, cannot succeed. It is sufficient, in that regard, to recall that, according to the case-law, although a Commission decision on State aid may, in the context of such an obligation, be sufficiently reasoned without including all the evidence on which that institution’s reasoning is based, it must nevertheless disclose in a clear and unequivocal fashion the reasoning followed by that institution and the methodology used by it, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and to enable the EU Courts to exercise their power of review in that respect (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 111 and the case-law cited).
118 Accordingly, the third part of the first ground of appeal must be upheld, in so far as the General Court is criticised for failing to find that the decision at issue lacks a statement of reasons.
119 It follows from all of the foregoing, first, that the General Court erred in law in finding that, in the decision at issue, the Commission could rely on the reasons primarily set out by it, according to which it was not required, in the present case, to examine the compatibility of the direct award of the construction work for the two new nuclear reactors with EU public procurement rules. Second, the General Court also erred in law in finding that the Commission had provided, to the requisite legal standard, reasons for its conclusion set out for the sake of completeness in recital 285 of the decision at issue.
120 Therefore, since the first ground of appeal must be upheld, the judgment under appeal is to be set aside, without there being any need to examine the other complaints put forward in the context of that first ground of appeal or the other grounds of appeal.
121 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits.
122 In the present case, the state of the proceedings permits final judgment to be given, since the Court has the information necessary to give final judgment on the action brought by the Republic of Austria.
123 It is apparent from paragraphs 78 to 81, 112, 118 and 119 above that the decision at issue is vitiated, first, by an error of law as regards the Commission’s assertion that it was not required to ascertain, in the present case, whether the direct award of the contract for the construction of the two new nuclear reactors was consistent with EU public procurement rules and, second, by a failure to state reasons inasmuch as that institution considered that it could, in any event, merely refer to the 2015 infringement proceedings in order to justify its conclusion, made for the sake of completeness, that there had been no infringement of those rules as a result of that direct award.
124 It follows that it is necessary (i) to uphold, first, the first plea in law in the action brought before the General Court, alleging, in essence, that the Commission had failed to examine, in the decision at issue, whether the direct award of the contract for the construction of the two new nuclear reactors entailed an infringement of the EU public procurement rules and that it had failed to state reasons for the conclusion it had reached in that regard for the sake of completeness and, second, the first part of the tenth plea in law in that action, alleging a failure to comply with the obligation to state reasons under Article 296(2) TFEU, and, accordingly, (ii) to annul the decision at issue in its entirety, without it being necessary to examine the other complaints raised in the context of that tenth plea in law, or the other pleas in that action.
125 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
126 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
127 In the present case, since the Commission has been unsuccessful and the Republic of Austria has applied for costs, the Commission must be ordered to bear its own costs and to pay those incurred by that Member State relating to the proceedings at first instance and on appeal.
128 Under Article 140(1) of those Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Accordingly, the Czech Republic, the French Republic, the Grand Duchy of Luxembourg, Hungary and the Republic of Poland must bear their own costs relating to the proceedings at first instance and on appeal.
129 Lastly, under Article 184(4) of those Rules of Procedure, where the appeal has not been brought by an intervener at first instance, that intervener may not be ordered to pay costs in the appeal proceedings unless it participated in the written or oral part of the proceedings before the Court of Justice. In the light of that provision, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland are to be ordered to bear their own costs relating to the proceedings at first instance.