CFI, 6th chamber, April 30, 2014, No T-179/09

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

30 April 2014 (*)

(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 — Concept of State aid — Advantage — New aid — Operating aid — Legitimate expectations — Legal certainty)

In Case T‑179/09,

Dunamenti Erőmű Zrt., established in Százhalombatta (Hungary), represented initially by J. Lever QC, A. Nourry, R. Griffith and S. Spence, Solicitors, and subsequently by J. Philippe and F.-H. Boret, lawyers,

applicant,

v

European Commission, represented by L. Flynn and K. Talabér-Ritz, acting as Agents,

defendant,

APPLICATION for, in essence, 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) and, in the alternative, the annulment of Articles 2 and 5 of that decision,

THE GENERAL COURT (Sixth Chamber),

composed of H. Kanninen, President, G. Berardis (Rapporteur) and C. Wetter, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 15 May 2013,

gives the following

Judgment

 Background to the dispute

 Information concerning the applicant

1        The applicant, Dunamenti Erőmű Zrt., is an electricity generator on the Hungarian electricity market which operates a power plant located approximately 30 km south of Budapest (Hungary). It is a former public undertaking which was privatised during the mid-1990s. It is approximately 75% owned by Electrabel SA, which itself forms part of the group headed by GDF Suez SA. The applicant is also approximately 25% owned by Magyar Villamos Művek Zrt. (‘MVM’), a public undertaking whose activities comprise power generation as well as wholesale, transmission and retail activities on the Hungarian electricity market.

2        On 10 October 1995, just before its privatisation, the applicant entered into a power purchase agreement with MVM in respect of the ‘F blocks’ and ‘G2 block’ of its power plant (‘the PPA at issue’ or ‘the PPA in question’). That agreement, which entered into force in 1996, was to continue until 2010, so far as concerns the gas-fired ‘F blocks’, and until 2015, so far as concerns the ‘G2 block’, a Combined Cycle Gas Turbine (CCGT) unit.

 Power purchase agreements

3        Like the applicant, other electricity generators on the Hungarian market entered into long-term power purchase agreements with MVM (‘the PPAs’).

4        The PPAs are characterised, above all, by two elements. First, they reserve for MVM all or a substantial part of the generation capacities of the power plants covered by the agreement.

5        Secondly, the PPAs require MVM to purchase a specific minimum quantity of electricity from each power plant under PPA. There is therefore a certain minimum off-take under the PPAs for each power plant which MVM is required to purchase each year.

6        The prices were fixed in the PPAs as follows:

–        a first and second price regulation cycle, as from 1 January 1997 and 1 January 2001 respectively, were initially established;

–        as from 1 January 2004, the regulation provided for:

–        a capacity fee for the reserved capacities in order to pay for the making available of that capacity; that fee covers fixed costs and the cost of capital, and is paid by MVM;

–        an electricity fee to pay for the guaranteed minimum off-take and which covers variable costs; however, if MVM does not purchase the fixed minimum quantity, it then has to pay for the fuel costs incurred.

7        The PPAs concluded between 1995 and 1996, which constitute seven of the 10 PPAs assessed by the Commission, including the PPA at issue, formed an integral part of the privatisation of the power plants. They were partially amended by the parties after privatisation.

 Hungarian electricity market

8        The Hungarian electricity market has been made subject to three consecutive regimes.

9        The first regime, in force from 31 December 1991 until 31 December 2002, was structured around a single buyer, MVM. Electricity generators could supply energy directly only to MVM, and MVM was the only company authorised to supply electricity to the regional distribution companies. In accordance with Hungarian Law XLVIII of 1994 on the generation, transport and supply of electricity (‘the First Law on electric energy’), MVM was required to ensure the security of energy supply in Hungary at the lowest possible cost.

10      The second regime, in force from 1 January 2003 until 31 December 2007, was established by the Law of 2001 on electricity. Under this regime, a public utility sector, representing approximately 70% of power generation, coexisted with a competitive sector, representing approximately 30% of power generation. In the public utility sector, MVM was the only wholesaler whereas, in the competitive sector, other traders also operated, with MVM’s activities in that sector intended only to release the surplus quantities purchased under the PPAs and not needed by the public utility sector.

11      The third regime, in force as from 1 January 2008, was established by the Law of 2007 and abolished, inter alia, the public utility sector.

 Accession of Hungary to the European Union

12      The Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (OJ 2003 L 236, p. 17) was signed by Hungary on 16 April 2003 and entered into force on 1 May 2004 (‘the Accession Treaty’).

 The proceedings before the Commission

13      By letter of 31 March 2004, the Hungarian authorities notified the Commission of the European Communities of Government Decree No 183/2002 (VIII.23.) on the detailed rules for the definition and management of ‘stranded costs’ under the procedure (‘the interim procedure’) referred to in paragraph 1(c) of Chapter 3 of Annex IV to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 797) (‘the Act of Accession’). The notified Government Decree provides for a system of compensation for the costs borne by MVM as an electricity wholesaler. The Commission registered that notification under case number HU 1/2004.

14      A number of official letters were subsequently exchanged between the Hungarian authorities and the Commission concerning the notified measure. The Commission also received comments from third parties.

15      By letter of 13 April 2005, the Hungarian authorities withdrew the notification of Government Decree No 183/2002 (VIII.23.). On 4 May 2005, in accordance with Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1), the Commission registered, of its own motion, a State aid file concerning the PPAs under number NN 49/05.

16      By letter of 24 May 2005, the Commission requested additional information from the Hungarian authorities. Having received a reply from Hungary and having obtained additional information, the Commission, by letter of 9 November 2005, informed Hungary that it had decided to open the procedure laid down in Article 88(2) EC in respect of the State aid C 41/05.

17      That letter informing Hungary of the decision to initiate the procedure on the basis of the Commission’s doubts as to the compatibility of the PPA at issue with the common market, together with a summary of that decision calling on interested parties to submit their comments, was published in the Official Journal of the European Union on 21 December 2005 (OJ 2005 C 324, p. 12). Following that publication, the Commission received comments, inter alia, from the Hungarian authorities and the Hungarian electricity generators, including the applicant. The applicant submitted its comments by letter of 13 February 2006.

 The contested decision

18      On 4 June 2008, the Commission adopted Decision 2009/609/EC on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements (OJ 2009 L 225, p. 53) (‘the contested decision’).

19      In that decision, having set out the administrative procedure before it, the Commission described the PPAs and then stated the grounds for initiating the procedure on State aid (recitals 1 to 87 of the contested decision). The Commission then recalled the various comments submitted to it, in particular by Hungary and by the applicant (recitals 88 to 150 of the contested decision).

20      In addition, the Commission assessed the PPAs. In the first place, it stated that the Hungarian authorities had not notified to it, in accordance with the State aid procedural rules, the elements of aid contained in the PPAs and that that aid thus constituted unlawful aid (recital 151 of the contested decision).

21      In the second place, the Commission addressed the comments submitted by certain interested parties and Hungary suggesting an individual assessment of the PPAs. According to the Commission, the PPAs had to be assessed jointly, although that comprehensive approach did not prevent the differences that did indeed exist between those PPAs from being taken into account (recitals 152 to 154 of the contested decision).

22      In the third place, the Commission analysed, in the contested decision, whether the four cumulative criteria which comprise the definition of State aid within the meaning of Article 87(1) EC had been fulfilled (recital 155). In that regard, as a preliminary point, so far as concerns the relevant time of assessment, the Commission considered that it had to assess whether, as of the day on which Hungary acceded to the European Union, the PPAs met the criteria for the existence of State aid (recitals 156 to 173). Next, the Commission assessed (i) whether there was an advantage under the PPAs for electricity generators (recitals 174 to 276), (ii) the selectivity of that advantage (recitals 277 to 283), (iii) whether the PPAs involved the transfer of State resources (recitals 284 to 318) and (iv) the existence of distortion of competition and the impact on trade between Member States (recitals 319 to 340).

23      In the fourth place, as regards the applicability of the PPAs after Hungary’s accession to the European Union, the Commission considered that the PPAs were measures applicable after accession (recitals 341 to 366 of the contested decision).

24      In the fifth place, the Commission assessed whether the PPAs constituted new aid or existing aid and concluded that the PPAs constituted new aid (recitals 367 to 381 of the contested decision).

25      In the sixth place, in response to the observations submitted, the Commission found that the termination of validly concluded private-law agreements was not incompatible with the principles of legal certainty and proportionality (recitals 382 to 387 of the contested decision).

26      In the seventh place, the Commission assessed the compatibility of the State aid in question with the EC Treaty and concluded that it was incompatible (recitals 388 to 436 of the contested decision).

27      In the eighth place, the Commission considered the issue of recovery of the State aid in question (recitals 437 to 467 of the contested decision).

28      In conclusion, the Commission found that the PPAs conferred illegal State aid on the Hungarian electricity generators within the meaning of Article 87(1) EC and that that State aid was incompatible with the common market. It also stated that the State aid provided for in the PPAs consisted in MVM’s obligation to purchase a certain capacity and a guaranteed minimum quantity of electricity at a price covering capital, fixed and variable costs over a significant part of the lifetime of the generating units, thereby guaranteeing a return on the generators’ investment. It therefore stated that that aid must be ended (recitals 468 to 470 of the contested decision).

29      The operative part of the contested decision reads as follows:

‘Article 1

1.      The purchase obligations as set out in the [PPAs] between [MVM] and [the applicant and six other Hungarian electricity generators] constitute State aid within the meaning of Article 87(1) [EC] to the electricity generators.

2.      The State aid referred to in [paragraph 1] is incompatible with the common market.

3.      Hungary shall refrain from granting the State aid referred to in paragraph 1 within six months following the date of notification of this Decision.

Article 2

1.      Hungary shall recover the aid referred to in Article 1 from the beneficiaries.

…

Article 3

1.      Within two months following notification of this Decision, Hungary shall submit to the Commission information concerning measures already taken and measures planned to comply with this Decision, and notably the steps taken to perform an appropriate simulation of the wholesale market in order to establish the amounts to be recovered, the detailed methodology intended to be applied and a detailed description of the set of data that it intends to use for that purpose.

…

Article 4

1.      The exact amount of aid to be recovered should be calculated by Hungary on the basis of an appropriate simulation of the wholesale electricity market as it would have stood if none of the [PPAs] referred to in Article 1(1) had been in force since 1 May 2004.

2.      Within six months following notification of this Decision, Hungary shall calculate the amounts to be recovered on the basis of the method referred to in paragraph 1 and submit to the Commission all relevant information with regard to the simulation, notably its results, a detailed description of the methodology applied, and the set of data used to carry out the simulation.

Article 5

Hungary shall ensure that the recovery of the aid referred to in Article 1 is implemented within ten months following the date of notification of this Decision.

Article 6

This Decision is addressed to the Republic of Hungary.’

 Procedure and forms of order sought

30      By application lodged at the Court Registry on 28 April 2009, the applicant brought the present action.

31      The applicant claims that the Court should:

–        annul the contested decision and each of the operative provisions of its operative part, in so far as they apply to the applicant;

–        alternatively, annul Articles 2 and 5 of the contested decision, in so far as they order recovery of aid from the applicant in excess of any aid which should have been found by the Commission to be incompatible with the common market;

–        order the Commission to pay the costs.

32      The Commission contends that the Court should:

–        dismiss the action as in part inadmissible and in part unfounded;

–        alternatively, dismiss the action as unfounded;

–        order the applicant to pay the costs.

33      In addition, in response to the applicant’s requests, made in its application and contained in the form of order sought, seeking (i) the appointment of an expert and the provision by that expert of a report to the Court and (ii) the production of certain documents, the Commission, in its defence lodged at the Court Registry on 7 October 2009, contends that those requests should be dismissed.

34      The written procedure was closed on 17 February 2010.

35      By letter of 15 September 2010, the applicant sent the Court a copy of Commission Decision C(2010) 2532 final of 27 April 2010 authorising the stranded costs compensation scheme for the electricity generators that signed the PPAs. That decision refers to (i) the termination of the PPAs pursuant to the Hungarian Law LXX, approved by the Parliament on 10 November 2008 (‘Hungarian Law LXX of 2008’), with effect from 31 December 2008, and (ii) the contested decision finding the State aid contained in the PPAs to be incompatible, on 1 May 2004 and thereafter, with the common market and providing for the recovery of the aid already received.

36      By letter lodged at the Court Registry on 6 December 2010, the applicant applied for the adoption of measures of organisation of procedure, pursuant to Article 64 of the Rules of Procedure, requesting the Commission to provide to the Court the documents to which it referred in its rejoinder relating to all written communications and oral communication between the Commission and MVM during the course of the administrative procedure prior to the adoption of the contested decision. By letter lodged at the Court Registry on 6 January 2011, the Commission submitted its observations on that application.

37      By letter lodged at the Court Registry also on 6 December 2010, the applicant applied for the adoption of a measure of inquiry, under Article 65(d) of the Rules of Procedure, for an expert to be appointed in order to prepare a report in particular on the validity of the applicant’s criticisms contained in its application concerning the recovery methodology prescribed by the contested decision. By letter lodged at the Court Registry on 6 January 2011, the Commission submitted its observations on that application.

38      By letter lodged at the Court Registry again on 6 December 2010, the applicant indicated that it did not wish the hearing in the present case, even without a formal order of joinder, to be fixed at the same time as the hearings in the cases in progress at the time when that letter was submitted: Case T‑352/08 Pannon Hőerőmű v Commission; Case T‑370/08 Alpiq Csepel v Commission; Case T‑468/08 AES-Tisza v Commission; and Case T‑182/09 Budapesti Erőmű v Commission. With regard to those cases, relating to proceedings brought by other Hungarian electricity generators against the contested decision, the applicant suggested that the Court hold consecutive, but separate, hearings for each case. By decision of the Court of 17 January 2012, the present case was assigned to the Sixth Chamber and the President of that Chamber was appointed as Judge­Rapporteur. By decision of the Court of 21 September 2012, a new Judge­Rapporteur was appointed.

39      By letter lodged at the Court Registry on 23 April 2012, the applicant requested that the written procedure be reopened and that further evidence be submitted, namely the judgment in Budapesti Erőmű v Commission, so that it might make written submissions on that judgment. In that same letter, the applicant renewed its request for the appointment of an expert made on 6 December 2010.

40      Upon hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure.

41      In accordance with Article 64 of its Rules of Procedure, by way of measures of organisation of procedure, the Court asked the parties, by letter of 7 February 2013, to submit their observations on the judgment in Budapesti Erőmű v Commission in the light of the pleas in law and arguments put forward in the present case. The observations of the Commission and the applicant were lodged at the Court Registry on 19 February 2013 and 1 March 2013 respectively.

42      In that regard, referring in particular to its pleadings submitted in the course of the written procedure, the Commission stated, for each of the pleas raised, the reasons for which the present action, as in Budapesti Erőmű v Commission, should be dismissed. In its observations, the applicant argued that, contrary to the circumstances of Budapesti Erőmű v Commission, in the present case, first, the PPA in question, entered into before the privatisation of its power plant, had been valued in the privatisation price and had thus been fully repaid to the State as part of the privatisation. Consequently, it never constituted State aid within the meaning of Article 87(1) EC. The applicant argued that, secondly, the electricity actually bought from it by MVM exceeded the minimum off-take obligation. Lastly, it is of the utmost importance to assess the validity and accuracy of the principles set by the Commission concerning the counterfactual scenario.

43      The Commission lodged a letter dated 22 April 2013 at the Court Registry, in order to adduce a new piece of evidence in response to the applicant’s argument, put forward in its pleadings, referring to Article 10 of the Energy Charter Treaty, signed in Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24). In that letter, the Commission referred to a decision, given on 30 November 2012, by the International Centre for Settlement of Investment Disputes (ICSID), concerning proceedings brought by Electrabel, majority shareholder in the applicant, against Hungary. By letter lodged at the Court Registry on 7 May 2013, the applicant commented on that letter, in particular with regard to the lack of bearing of the ICSID decision on the present action.

44      By letter lodged at the Court Registry on 22 April 2013, the Commission submitted observations on the report for the hearing. By letter lodged at the Court Registry on 10 May 2013, the applicant also submitted observations on that report.

45      The parties presented oral argument and replied to the oral questions of the Court at the hearing on 15 May 2013. In addition, at the hearing, the Court questioned the Commission about its first head of claim, which asks the Court to dismiss the action as in part inadmissible and in part unfounded. In response, the Commission stated that it no longer challenged the admissibility of the present action. Consequently, the Court took note that the form of order sought by the Commission had to be understood as asking the Court to dismiss the action as unfounded.

 Law

46      In support of its action, the applicant relies on four pleas in law, claiming that (i) the Commission wrongly found there to be State aid within the meaning of Article 87(1) EC, (ii) if the agreements signed in 1995 grant State aid to the applicant, the Commission should not have considered it to constitute new aid on 1 May 2004 and thereafter, but rather existing aid within the meaning of Article 88(1) EC, (iii) the Commission made several errors as regards the compatibility of the State aid with the common market, and (iv) the legality of the order for the recovery of the aid alleged to be unlawful and incompatible with the common market is open to challenge. In addition, the applicant makes a series of submissions on certain statements made in the contested decision which it wishes to challenge in particular. The Commission disputes the applicant’s claims.

47      The Court considers it appropriate to examine the first and second pleas together before examining the third and fourth pleas in turn.

 The first plea in law, alleging misapplication of the concept of State aid within the meaning of Article 87(1) EC and the second plea in law, alleging that the Commission should have categorised the measures at issue as existing aid within the meaning of Article 88(1) EC

48      In support of the first two pleas in law, the applicant puts forward, in essence, four complaints. The first complaint is raised against the Commission’s finding that there is State aid, against the classification of that aid as new aid and also against the relevant date for assessing the aid contained in the PPA at issue as identified by the Commission. The second complaint concerns the Commission’s analysis with regard to application of the private operator in a market economy test and MVM’s position, as a market player, at the time of Hungary’s accession to the European Union. The third complaint alleges infringement of the principles of the protection of legitimate expectations and of legal certainty. The fourth complaint alleges incorrect assessment of the specific features of the PPA at issue.

 The first complaint, challenging the Commission’s finding that there is State aid, the classification of that aid as new aid and also the relevant date for assessing the aid contained in the PPA at issue as identified by the Commission

49      The applicant submits that the Commission erred in finding that there was State aid within the meaning of Article 87(1) EC. According to the applicant, the Commission was incorrect to find that a measure such as the PPA at issue, which did not constitute aid within the meaning of Article 87(1) EC, could, upon the accession of a State to the European Union, subsequently be transmuted into aid to which that provision applies. Contrary to what is stated in recitals 158 to 160 of the contested decision, neither paragraph 1(c) of Chapter 3 of Annex IV to the Act of Accession, nor Article 1(b)(v) and 1(c) of Regulation No 659/1999 enable the Commission to re-classify the PPAs as aid on 1 May 2004 and thereafter. The applicant claims that, if the aid awarded by the PPAs constitutes the grant of State aid to it, the Commission should not have considered the measure at issue to constitute new aid on 1 May 2004 and thereafter, but rather existing aid within the meaning of Article 88(1) EC. In its observations lodged at the Court Registry on 1 March and 10 May 2013, referred to respectively in paragraphs 41 and 44 above, and as it stated again at the hearing, the applicant argued that the PPA in question, entered into before the privatisation of its power plant, had been valued in the privatisation price and had thus been fully repaid to the State as part of the privatisation. Consequently, it never constituted State aid within the meaning of Article 87(1) EC.

50      It must be recalled that, although Hungary acceded to the European Union on 1 May 2004, it officially submitted its application for membership on 31 March 1994 and the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part (OJ 1993 L 347, p. 2; ‘the Europe Agreement including Hungary’), signed on 16 December 1991, entered into force on 1 February 1994. As regards the PPA at issue, this was concluded on 10 October 1995.

51      Article 62(1)(iii) of the Europe Agreement including Hungary provides that, in so far as it may affect trade between the Community and Hungary, any public aid which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is incompatible. Article 62(2) of that agreement states that any practices contrary to Article 62 are to be assessed on the basis of the criteria arising from the application of Article 87 EC. Article 62(3) adds that the Association Council — which consists of the members of the Council and members of the Commission, on the one hand, and of members of the Government of Hungary, on the other — is, within three years of the entry into force of that agreement, to adopt by decision the necessary rules for the implementation of Article 62(1) and (2). Article 62(4) provides that, for the purposes of applying the provisions of Article 62(1)(iii), the Parties recognise that during the first five years after the entry into force of that agreement, any public aid granted by Hungary is to be assessed taking into account the fact that Hungary is to be regarded as an area identical to those areas of the Community described in Article 87(3)(a) EC.

52      In the present case, the Commission does not challenge the applicant’s statement that, notwithstanding what is provided for in Article 62(3) of the Europe Agreement including Hungary, the Association Council referred to in paragraph 51 above did not adopt rules for the implementation, in particular, of Article 62(1)(iii). It is also true, as the applicant submits, that Article 62(2) of that agreement refers only to the substantive rules for the assessment of aid and not to the procedural rules, contained in Article 88 EC. However, as the Commission correctly maintains, the contested decision does not assess the compatibility of the PPA at issue with the Europe Agreement referred to, but with the State aid rules applicable as of 1 May 2004.

53      Consequently, although, at the time the PPA at issue was entered into, Hungary was required to harmonise only its substantive rules for the assessment of State aid in a manner consistent with Article 87 EC, the fact remains that, first, the Europe Agreement including Hungary was precise as regards the obligation on Hungary to comply with the fundamental rules on State aid in the years before its accession to the European Union and, secondly, that with the Accession Treaty which entered into force on 1 May 2004, the acquis communautaire with regard to State aid, including the substantive rules and the implementing rules, had become mandatory in Hungary.

54      However, in order to ensure that Hungary’s accession to the European Union occurred in the best possible conditions, Chapter 3 of Annex IV to the Act of Accession laid down specific rules for existing aid in that State, regardless of whether it was granted in accordance with national legal provisions in force before that accession. The new Member States of the European Union agreed to introduce specific provisions in that Act whereby all aid measures applicable after accession and concluded after 10 December 1994 had to be notified to the Commission and reviewed by it on the basis of the acquis communautaire. As the Commission correctly notes in recital 166 of the contested decision, the question of the relevant time of assessment must therefore be assessed in the light of the Act of Accession.

55      Paragraph 1 of Chapter 3 of Annex IV to the Act of Accession provides that the State measures put into effect before accession, but which are still applicable after accession and which fulfil at the date of accession the four cumulative conditions laid down in Article 87(1) EC, are subject to the specific rules set out in Annex IV to that Act, either as existing aid within the meaning of Article 88(1) EC if they fall within one of the three categories mentioned in that annex, or as new aid upon accession for the purpose of the application of Article 88(3) EC if they do not fall within one of those three categories (Budapesti Erőmű v Commission, paragraph 50).

56      The three categories of existing aid, referred to above, covered by Annex IV to the Act of Accession, are as follows:

–        aid measures put into effect before 10 December 1994;

–        aid measures listed in the Appendix to that Annex;

–        aid measures which prior to the date of accession were assessed by the State aid monitoring authority of the new Member State and found to be compatible with the acquis, and to which the Commission did not raise an objection on the ground of serious doubts as to the compatibility of the measures with the common market, pursuant to the interim procedure set out in paragraph 2.

57      The second subparagraph of paragraph 1 of Chapter 3 of Annex IV clearly states that all measures still applicable after the date of accession which constitute State aid and which do not fulfil the conditions set out above are to be considered as new aid upon accession for the purpose of the application of Article 88(3) EC.

58      Paragraph 2 of Chapter 3 of Annex IV to the Act of Accession provides for an interim mechanism, that is, it lays down the legal framework in relation to examining aid. When a new Member State wishes the Commission to examine an aid measure under the procedure described in paragraph 1(c) of Chapter 3, it must provide the Commission regularly with certain information. Paragraph 3 of Chapter 3 states that a Commission decision to object to a measure, within the meaning of paragraph 1(c) of Chapter 3, is to be regarded as being equivalent to a decision to initiate the formal investigation procedure within the meaning of Regulation No 659/1999.

59      In the present case, first, it is not disputed that the PPA at issue was entered into after 10 December 1994. It does not therefore on that basis constitute existing aid within the meaning of Article 88(1) EC. Next, it is to be noted that the PPA in question is not listed in the Appendix to Annex IV to the Act of Accession. Consequently, it does not constitute existing aid on that basis either. Lastly, as the Commission correctly states, it is to be noted that the PPA at issue was not examined or approved in the context of the interim mechanism, referred to in paragraph 1(c) of Chapter 3 of Annex IV to that act.

60      Consequently, it must be found that the PPA at issue, still applicable after the date of accession of Hungary to the European Union, constitutes new aid within the meaning of Annex IV to the Act of Accession. In the light of the provisions of that Annex, applicable in the circumstances of this case, that consideration applies notwithstanding the European Union (EU) case-law cited by the applicant, according to which existing aid is, in particular, aid introduced before the Treaty came into force or before the accession of the Member State concerned to the European Union (see Joined Cases T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98 Alzetta and Others v Commission [2000] ECR II‑2319, paragraph 142 and the case-law cited). The drafters of the Act of Accession intended that approach to be taken, hence the clear and precise definition with regard to the categorisation of existing aid and new aid in that act (Budapesti Erőmű v Commission, paragraph 60).

61      Secondly, contrary to the applicant’s submissions and in the light of what has been set out in paragraphs 50 to 53 above, it is established that the relevant date for the purpose of determining whether a measure is compatible with the common market cannot be the date on which the PPA at issue was entered into, nor even any other date before Hungary’s accession to the European Union (Budapesti Erőmű v Commission, paragraph 62). Since the relevant date is precisely the date from which the acquis communautaire and the State aid rules forming part of it became mandatory for the new EU Member State, the issue of whether the PPA at issue constituted compatible aid as at the date on which it was entered into is therefore irrelevant. The arguments raised by the applicant in that regard must therefore be rejected.

62      Thirdly, the Commission correctly concluded, in recitals 156 to 173 of the contested decision, that a measure which did not constitute aid within the meaning of Article 87(1) EC could subsequently become such aid, for example as from the date of accession of a Member State to the European Union. It is apparent from Chapter 3 of Annex IV to the Act of Accession that the Member States of the European Union before 1 May 2004 wished to protect the internal market against measures containing State aid which had been introduced in the candidate countries before their accession to the European Union and which could potentially distort competition, by making them subject, as from 1 May 2004, to the system for new aid if they did not come within the exceptions precisely listed in the Annex itself. Contrary to the applicant’s claims, the issue of whether the PPA at issue did in fact constitute State aid before Hungary’s accession to the European Union has therefore no bearing on its characterisation as State aid as from the date of accession.

63      As the Commission states, the State aid criteria are, by definition, of a dynamic nature as they relate to the protection of competition on the common market. Accordingly, in cases where the Member States agree to a major change in legal and economic features of that market, such as in the case of a State’s accession to the European Union, pre-accession conditions cannot be prolonged without any time-limit.

64      In addition, the fact that a measure which was not initially State aid might become it subsequently may be inferred from Annex IV to the Act of Accession and was accepted in Regulation No 659/1999.

65      In particular, it is clear from the wording of Annex IV to the Act of Accession that a measure which was not regarded as State aid when it was introduced can subsequently become State aid. Annex IV contains the provisions which served as the legal basis for the assessment, from the point of view of the law applicable to State aid, of the measures put into effect before the date of accession of a State to the European Union, but still applicable after that date. A measure that is still applicable after the date of accession must be assessed at that date in the light of the four conditions laid down in Article 87(1) EC. Any other conclusion would have the effect of rendering meaningless the desired objective of the authors of the Accession Treaty (Budapesti Erőmű v Commission, paragraph 54).

66      Furthermore, pursuant to the first sentence of Article 1(b)(v) of Regulation No 659/1999, existing aid includes ‘aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State’. The second sentence of Article 1(b)(v) of that regulation reads, ‘[w]here certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation’. Therefore, it is conceivable, in certain circumstances, that compliance with the four conditions laid down in Article 87(1) EC may be assessed as at a time other than that when a given measure comes into effect (Budapesti Erőmű v Commission, paragraph 55).

67      Fourthly, in support of its arguments concerning the ‘unacceptable’ nature of characterising the aid contained in the PPA at issue as State aid within the meaning of Article 87(1) EC, the applicant claims that the principle of honest dealing has been infringed. It submits that, in considering, in the contested decision, that the PPA at issue was State aid as from 1 May 2004 whereas that agreement was an integral part of the privatisation process and allowed the Hungarian State to realise substantial cash sums, the Commission enables the latter to take the benefits of a commercial transaction without fulfilling its own obligations in return. In its reply to the measure of organisation of procedure referred to in paragraphs 41 and 42 above, and also at the hearing, the applicant again argued to that effect, stating that the PPA in question, entered into before the privatisation of its power plant, had been valued in the privatisation price and had thus been fully repaid to the State as part of the privatisation.

68      However, the arguments set out in paragraph 67 above, which are based essentially on the circumstances of the privatisation in the mid-1990s, must be rejected in the light of the relevant period for assessing the PPAs which commences on 1 May 2004. The procedure in the present case and the possibility of characterising as State aid, within the meaning of Article 87(1) EC, the advantage conferred by the PPAs on the applicant relates only to that period, that is almost a decade after the privatisation process. Consequently, the applicant’s argument based on the fact that the sale of the shares in the context of the privatisation of its power plant was allegedly at market value and that the privatisation price therefore covered the PPA at issue, so that there cannot be State aid within the meaning of Article 87(1) EC, is irrelevant.

69      As the Commission correctly stated in recital 185 of the contested decision, the change in the ownership of the power plants occurred before the date at which the existence of State aid within the meaning of Article 87(1) EC falls to be assessed. It was therefore for the Commission to assess only whether, as from 1 May 2004, the applicant had benefited from an advantage conferred by the PPAs, inasmuch as those agreements were based on the obligation on MVM to purchase reserved electricity generation capacities and a minimum quantity of electricity at a price covering fixed and variable costs.

70      Consequently, the applicant’s line of argument regarding the privatisation process, and in particular the alleged repayment of the aid contained in the PPA at issue because of its privatisation, must be rejected as ineffective and there is no need to rule on the case-law discussed by the parties in that regard at the hearing (Case C‑390/98 Banks [2001] ECR I‑6117; Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035; and the judgment in Case C‑277/00 Germany v Commission [2004] ECR I‑3925, and Advocate General Tizzano’s Opinion in that case, ECR I‑3930.

71      In addition to the fact that many European generators were in a similar situation to the applicant, it must be noted that the main reason for the method for analysing State aid linked to stranded costs is precisely to enable the EU Member States to grant aid to electricity generators which have invested in power plants before the liberalisation of the electricity market, in order to offset, on account of that liberalisation and its attendant consequences, the costs of the investments made which the generators will not be able to recover during the period of operation of the power plants concerned.

72      However, the competent authorities of the Member State concerned must also have set up a stranded costs compensation mechanism and notified it to the Commission. It is apparent from recital 27 of the contested decision that, as at the date of that decision, the Hungarian authorities had still not completed the required notification process as regards stranded costs. Consequently, the fact that, at the date of the contested decision, the aid contained in the PPAs was ordered to be ended, when the Hungarian authorities had not yet set up a mechanism ensuring that generators could recoup their eligible stranded costs, does not permit the inference that the Commission failed to have regard to the principle of honest dealing.

73      The applicant’s first complaint must therefore be rejected.

 The second complaint, concerning the Commission’s analysis with regard to the application of the private operator in a market economy test and MVM’s position, as a market player, at the time of Hungary’s accession to the European Union.

74      The applicant submits that the Commission did not find that the PPA at issue granted aid to it either when the PPA was entered into or at any point prior to Hungary’s accession to the European Union on 1 May 2004. In that connection, the applicant relies on the Commission’s Communication to the Member States: Application of Articles [87 and 88 EC] and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector (OJ 1993 C 307, p. 3) (‘the 1993 Communication’), EU case-law and Commission Decision 2009/287/EC of 25 September 2007 on State aid awarded by Poland as part of Power Purchase Agreements and the State aid which Poland is planning to award concerning compensation for the voluntary termination of Power Purchase Agreements (OJ 2009 L 83, p. 1).

75      In addition, the applicant expands its arguments, in particular, on the basis of the implications of applying the market economy investor principle to the present case. It maintains that the conclusion of the PPA in question was both a pre­privatisation transaction and an essential condition for its privatisation, which had become commercially imperative and was integral to the restructuring of the electricity market in the mid-1990s. The applicant further submits that, in any event, MVM would have wished, for purely commercial reasons, to conclude a PPA under the same terms, from 1 May 2004, as the PPAs were still necessary on that date. In that regard, the applicant observes that the Commission should have examined MVM’s annual reports for 2005 and 2006.

76      First of all, it must be noted that the test of a private operator in a market economy is satisfied where the State in fact merely acts in the same way as any private operator would do acting in normal market conditions. In such circumstances, there is no advantage attributable to intervention by the State, because the beneficiary could theoretically have derived the same benefits from the mere functioning of the market (see, to that effect, the judgment of 13 December 2011 in Case T‑244/08 Konsum Nord v Commission, not published in the ECR, paragraph 62, and Budapesti Erőmű v Commission, paragraph 67).

77      First, since the Commission did not err in taking the date of Hungary’s accession to the European Union as the date on which the relevant period for assessing the PPA at issue commenced, the Court rejects the applicant’s argument that the test of a private operator in a market economy must be analysed by reference to the economic context prevailing as at the date of conclusion of the PPAs. Furthermore, in the light of what has been stated in paragraphs 68 to 70 above, the applicant’s argument, repeated at the hearing, based on the fact that the conclusion of the PPA in question was an essential condition for its own privatisation, cannot succeed.

78      Although the 1993 Communication refers, at point 28 thereof, to the expression ‘at the moment the investment [or] financing decision is made’ for the purpose of examining the application of the private operator in a market economy test, in fact the reason being put forward by the Commission at point 28 is that ‘[t]here is no question of [the latter] using the benefit of hindsight to state that’ there is an advantage. This cannot, however, be interpreted, in the specific context of a Member State’s accession as in the present case, as meaning that the test of a private operator in a market economy must be analysed as at the date of conclusion of the PPAs, rather than at the relevant date for assessing the aid at issue.

79      Nor can the applicant rely on Decision 2009/287. First of all, concerning the use, in argument, of decisions on State aid in order to challenge the validity of another decision of the same type, it has been held that each case of State aid must be assessed separately by the Court; consequently, the decisions cited by the applicant, which concern specific cases and have no connection with the contested decision, cannot be relevant for the Court’s assessment (Joined Cases T‑81/07 to T‑83/07 KG Holding and Others v Commission [2009] ECR II‑2411, paragraph 201).

80      In any event, although in recital 160 of Decision 2009/287 it is stated that the situation prevailing at the time when the measure entered into force must be examined, the Commission none the less immediately added, in recitals 161 to 163 of that decision, that the four conditions for a finding that State aid exists must be assessed in accordance with the Accession Treaty and, consequently, on the date of Poland’s accession to the European Union.

81      Secondly, as regards the application of the test of a private operator in a market economy by the Commission, criticised by the applicant, it must be recalled that the assessment by the Commission of whether a measure satisfies that test involves a complex economic appraisal. When the Commission adopts a measure involving such an appraisal, it therefore enjoys a wide discretion and judicial review is limited to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether there was any error of law, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment of those facts or any misuse of powers. In particular, the Court is not entitled to substitute its own economic assessment for that of the author of the decision (Budapesti Erőmű v Commission, paragraph 65; see also, to that effect, the order in Case C‑323/00 P DGS v Commission [2002] ECR I‑3919, paragraph 43, and Case T‑196/04 Ryanair v Commission [2008] ECR II‑3643, paragraph 41).

82      However, while the Courts of the European Union recognise that the Commission has a margin of assessment in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data. Taking due account of the parties’ arguments, the Courts of the European Union must, inter alia, not only establish whether the evidence put forward is factually accurate, reliable and consistent but also determine whether that evidence contains all the relevant information that must be taken into account in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (Case C‑290/07 P Commission v Scott [2010] ECR I‑7763, paragraph 65, and Budapesti Erőmű v Commission, paragraph 66).

83      In the present case, it is apparent from recitals 177 to 236 of the contested decision that, in order to assess the existence of an advantage, the Commission analysed the application of the private operator in a market economy test. The Commission took as a reference a market operator subject to the same obligations and having the same opportunities as MVM, and facing the same legal and economic conditions as those prevailing in Hungary during the period of assessment.

84      The Commission therefore took the view, in recitals 177 and 180 to 190 of the contested decision, that it had to examine whether, under the conditions prevailing when Hungary acceded to the European Union, a market operator would have granted a similar guarantee to the electricity generators as that enshrined in the PPAs, namely an obligation on the part of MVM to purchase the generation capacities reserved in the PPAs and a guaranteed minimum quantity of electricity, at a price which covered the fixed and variable costs. As is apparent from recital 194 of that decision, the Commission therefore ascertained to what extent, in the absence of PPAs, a market operator entrusted with supplying the regional distribution companies with sufficient amounts of electricity, and acting on purely commercial grounds, would have offered similar guarantees to those enshrined in the PPAs.

85      For the purposes of that analysis, the Commission used its final report of 10 January 2007 on the electricity sector in Europe (SEC (2006) 1724) (‘the 2007 Commission report’). It thus identified and described the main practices of commercial operators on European electricity markets and assessed whether the PPAs were in line with those practices or provided generators with guarantees that a buyer would not accept if it acted on purely commercial grounds. The comparison of the PPAs with standard commercial practices consisted in comparing the purchase obligation laid down in the PPAs with the main features of standard contracts on the electricity market, in particular ‘forward’ and ‘spot’ contracts, ‘drawing rights’ contracts, and long-term contracts concluded by large end-consumers (recitals 191 to 215 of the contested decision).

86      That approach must be endorsed. In order to assess the conduct of an operator who is trying to procure a certain volume of electricity on the best possible commercial terms, it is necessary to examine all the contractual arrangements to which such a purchase might be subject (Budapesti Erőmű v Commission, paragraph 69).

87      As the Commission contends in recital 209 of the contested decision, the PPAs entail less risk for electricity generators than spot contracts, which are mainly day­ahead contracts in which electricity is traded one day before physical delivery takes place and therefore entail a significant degree of uncertainty concerning the remuneration of fixed and capital costs, and the level of utilisation of generation capacities. Trade in power on spot market exchanges is based on marginal pricing, which guarantees only that short-run marginal costs, and not all fixed and capital costs, are covered. Owing to the impossibility of storing electricity economically, after generation, there is no assurance about the level of utilisation of generating capacities.

88      That is also true in part for ‘forward’ contracts, whose prices are fixed in advance. As is apparent in particular from recital 210 of the contested decision, a standard forward contract places on the generator the obligation to provide a certain amount of energy at a price agreed in advance, over a period of one year starting within at most six years of the conclusion of the contract. Those contracts do not therefore provide assurance to generators that all their fixed and capital costs are covered, because production costs may increase if fuel costs increase. The fluctuation in fuel cost for forward contracts is therefore borne by the generators and not, as in the present case, by MVM. In addition, even though, for forward contracts, the uncertainty concerning the level of utilisation of generation capacities is lower than in the case of spot contracts, due to the longer time horizon of forward contracts, those contracts cover only a limited period of time, however, compared to the lifetime of their power generation units. It is clear from that comparison that the combination of ‘long-term capacity reservation, a minimum guaranteed off-take and price-setting mechanisms covering variable, fixed and capital costs’ as laid down by the PPAs do not correspond to usual contracts on European wholesale markets.

89      By comparison with spot and forward contracts, PPAs entail a lower level of risk for generators, by providing them with certainty both concerning the remuneration of fixed and capital costs and the level of use of generation capacities.

90      As regards ‘drawing rights’, referred to in recital 214 of the contested decision, the main difference between that form of agreement and the PPAs is that drawing rights are normally not associated with minimum guaranteed off-take.

91      Similarly, the Commission was entitled to conclude, in recital 215 of the contested decision, that ‘the long-term purchase contracts concluded by large consumers’ provided much more benefit to the buyer than the PPAs provided to MVM because, first, the price, which is normally not indexed on parameters such as fuel costs, was not designed in such a way as to cover fixed and capital costs and, secondly, those contracts were concluded for much shorter periods than the PPAs.

92      Consequently, at the end of its analysis, the Commission correctly concluded that, structurally, PPAs provide generators with a better guarantee than that provided under standard commercial contracts (recital 217 of the contested decision).

93      The Commission then correctly underlined the foreseeable consequences of the PPAs for the public authorities, namely that, while MVM would be able to find enough electricity to fulfil the needs of the public utility sector over a long period of time, the public authorities, however, had no assurance concerning the level of price that would have to be paid for the electricity over that same period, because the PPAs do not provide hedging against risks of price fluctuations, which are due in particular to fluctuation in fuel costs. Furthermore, as the Commission stated, the combination of long-term capacity reservation and the associated minimum guaranteed off-take deprive the public authorities of the possibility of benefiting from more attractive prices offered by other generators (see, in particular, recitals 218 to 220 and 221 to 234 of the contested decision).

94      It follows that the Commission correctly concluded, in recital 235 of the contested decision, that the benefits derived by the public authorities from the PPAs did not provide the hedging on energy prices that a market operator would expect from a long-term contract. A prudent operator acting on purely commercial grounds would not have accepted such effects, and would have entered into different types of agreements, in line with standard commercial practice.

95      The considerations just set out cannot be called in question by the applicant’s arguments based on the contents of MVM’s 2005 and 2006 annual reports. Although, as the applicant submits, MVM states in its 2005 annual report that ‘[t]he long-term Power Purchase and Sale Agreements have a key role for the [c]ompany in keeping its position as a market leader’, the fact remains that, further on in that report, MVM states that ‘[t]he [c]ompany made considerable efforts to modify the long-term power purchase agreements so as to specify more favourable conditions, this, however, due to the averse attitude of the power companies, only facilitated a flexible adaptation under the conditions laid down in the PPAs’. In addition, as regards MVM’s 2006 annual report, the applicant simply states that it contains similar observations to those which the applicant cites regarding MVM’s 2005 annual report, without however supplying any details in that regard.

96      Lastly, the Court must reject the applicant’s criticism of the Commission, set out in its application for a measure of organisation of procedure lodged at the Court Registry on 6 December 2010, referred to in paragraph 36 above. In essence, the applicant submits that, in paragraph 23 of the rejoinder, the Commission stated that ‘[n]othing in the comments offered by MVM in the formal investigation procedure show that MVM [had] explicitly stated that maintaining the PPAs in force after 2004 was in its own commercial interests’, when the contested decision is silent as to the position adopted by MVM in its comments submitted in the course of the formal investigation procedure. In that regard, in response to a question from the Court at the hearing, the Commission informed the Court that in the course of the formal investigation MVM had submitted some brief observations and that in those observations MVM had not indicated anywhere that maintaining the PPAs in force would be in its interests. That statement cannot, however, call in question the conclusion reached by the Commission in recital 217 of the contested decision, according to which, structurally, the PPAs provide more guarantees to generators than standard commercial contracts.

97      In the light of the foregoing, it must be found that the Commission correctly examined the PPA at issue from the point of view of the private operator in a market economy test and MVM’s position, as a market player, with regard to the PPA at issue at the time of Hungary’s accession to the European Union.

98      Consequently, the second complaint must be rejected as unfounded.

 The third complaint, alleging infringement of the principles of the protection of legitimate expectations and of legal certainty

99      The applicant submits that the fact that a measure which did not constitute a grant of aid at all can be treated as ‘becoming’ State aid, within the meaning of Article 87(1) EC, infringes the principle of legal certainty. Moreover, relying on the application of principles of legal certainty and of the protection of legitimate expectations, which, in its view, are fundamental principles of Community law that cannot be superseded by either Regulation No 659/1999 or the Act of Accession, the applicant claims that, in accordance with Article 10 of the Energy Charter Treaty, the Commission was required to ensure the legal protection of investment in the energy field. In addition, the applicant submits that the Commission should have respected its duty to cooperate in good faith with Hungary before initiating proceedings under Article 88(2) EC.

100    The Court observes that three conditions must be satisfied in order for a claim to entitlement to the protection of legitimate expectations to be well founded. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given by the authorities to the person concerned. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see Case T‑347/03 Branco v Commission [2005] ECR II‑2555, paragraph 102 and the case-law cited; Case T‑282/02 Cementbouw Handel & Industrie v Commission [2006] ECR II‑319, paragraph 77; and Case T‑444/07 CPEM v Commission [2009] ECR II‑2121, paragraph 126).

101    As regards the principle of legal certainty, it requires that EU legal rules be clear and precise in order that interested parties can ascertain their position in situations and legal relationships governed by EU law (order in Case T‑340/11 Régie Networks and NRJ Global v Commission [2012] ECR, paragraph 30 and the case­law cited).

102    First, the applicant at no time claims that it received any assurance whatsoever as to the nature of the aid contained in the PPA at issue. The Energy Charter Treaty, signed inter alia by the European Communities and Hungary, and ratified by them on 16 December 1997 and 1 April 1998 respectively — and in particular Article 10 thereof on the promotion, protection and treatment of investments in that sector — can in no case constitute a precise, unconditional and consistent assurance which could have given rise to a legitimate expectation on the part of the applicant as to the compatibility of the PPA in question with the EU State aid rules.

103    Consequently, without the need to adjudicate on the relevance of ICSID’s decision of 30 November 2012, cited in paragraph 43 above, to which the Commission has referred and which the applicant has viewed as having no impact on the present action, it must be found that the applicant cannot rely on a failure to observe the principal of the protection of legitimate expectations on the basis of the Energy Charter Treaty, and in particular Article 10 thereof.

104    In any event, a recipient of unlawfully granted aid, implemented without prior notification to the Commission, as in the present case, cannot have a legitimate expectation that the grant of the aid is lawful (Case 223/85 RSV v Commission [1987] ECR 4617, paragraph 17; Case C‑183/91 Commission v Greece [1993] ECR I‑3131, paragraph 18; and Joined Cases C‑183/02 P and C‑187/02 P Demesa and Territorio Histórico de Álava v Commission [2004] ECR I‑10609, paragraph 51). Furthermore, as the Commission has stated, the possibility for that recipient of relying on exceptional circumstances, which may legitimately have caused it to assume the aid to be lawful, can play a role only in resisting the possible recovery of that aid.

105    Secondly, as already stated in paragraphs 50 to 54 above, in the case of an accession of a State to the European Union, a major change in legal and economic features of a market occurs and, in that context, a measure may become incompatible State aid, without that undermining the legitimate expectations of the interested party or the principle of legal certainty. In that regard, the rules in the Europe agreement including Hungary, in the Accession Treaty and in the Act of Accession, regarding both the substantive and the procedural rules of EU law on State aid, are clear and precise.

106    In addition, the applicant submits that the Commission was aware of the existence of the PPAs long before Hungary’s accession to the European Union, because it had been aware of the Law of 2001 on electricity, cited in paragraph 10 above, which entered into force on 1 January 2003, which made specific reference to the PPAs. The applicant also mentions the letter sent to the Commission on 31 March 2004 under the interim procedure, for the approval of a scheme for compensation of stranded costs incurred by MVM, in which the Hungarian authorities expressly referred to the PPAs.

107    Even assuming that the Commission was aware of the existence of the PPAs and the PPA at issue several years before Hungary’s accession to the European Union, in the light of what has been stated in paragraphs 50 to 54 above the question of the existence and compatibility of the aid with the common market arose only as from the date of accession, so that the Hungarian authorities were required to communicate to the Commission the information concerning the PPAs in the context of the interim procedure. However, it is apparent from the file that, as regards specifically the PPAs and, in particular, the PPA at issue, the Hungarian authorities made no notification, so that those PPAs constitute aid which must be considered unlawful. Since the Hungarian authorities made no notification of the PPAs and moreover withdrew the notification of Government Decree No 183/2002, the Commission correctly registered a State aid file concerning them on its own initiative in order to carry out a preliminary examination of that unlawful aid, in the light of its doubts concerning the existence of State aid contained in the PPAs.

108    Accordingly, the applicant cannot validly complain that the Commission perceived that the notification initiated by the Hungarian authorities on 31 March 2004 under the interim mechanism — concerning Government Decree No 183/2002 — needed to be supplemented so as to enable it to consider the PPAs, and in that regard failed to fulfil its obligation to cooperate in good faith.

109    It follows from the foregoing that the applicant’s argument concerning a failure to observe the principles of the protection of legitimate expectations and legal certainty cannot succeed. The third complaint must therefore be rejected.

 The fourth complaint, alleging incorrect assessment of the specific features of the PPA at issue

110    The applicant submits that the Commission incorrectly criticised certain specific elements of the PPA at issue, namely the minimum off-take obligation provided for by the PPA at issue, the guaranteed return based on recovery of fixed costs, the guaranteed return based on recovery of variable costs, and a guaranteed level of return. The applicant also states that the contested decision contained several incorrect assessments with regard to the existence of an advantage for it. In the reply, the applicant claims that the Commission wrongly relied on the judgment in Italy and SIM 2 Multimedia v Commission.

111    As regards the minimum off-take obligation, the applicant submits that, since 2004, MVM regularly purchased from it quantities in excess of that which it was required to under the minimum off-take obligation. Consequently, contrary to what is suggested by the contested decision, that obligation cannot pose any difficulties. The applicant maintained its position in that regard in its reply to the measure of organisation of procedure referred to in paragraphs 41 and 42 above, and also at the hearing.

112    Although the applicant does adduce evidence, in the application, tending to support its submission, the fact remains that, even if the minimum off-take obligation did not force MVM to purchase quantities of electricity in excess of its commercial needs, it is established that the minimum off-take obligation imposed on MVM, in conjunction with the obligation concerning reserved electricity­generation capacity and a pricing mechanism covering fixed, capital and variable costs, goes beyond standard commercial practices on the European electricity markets. Moreover, as the Commission correctly states, the fact that MVM bought significantly more than the minimum guaranteed off-take in certain years does not mean that the structural risk of having to purchase, overall, more electricity than it needed to cover its needs would not have existed for the whole period under assessment.

113    Furthermore, the applicant does not counter the reasoning in recitals 218 to 234 of the contested decision regarding the market context due to the liberalisation process as from 2003, namely the decrease in MVM’s needs in the public utility sector and the increasing demand in the competitive sector.

114    In addition, it must be noted that, in order to offset the situation which might lead MVM to resell the surplus energy purchased which it did not need to meet its supply obligations in the public utility sector, the Hungarian Government adopted Government Decree No 183/2002, cited in paragraph 13 above. That Government Decree provided that, in the event of failure of the renegotiation of the PPAs with the generators, MVM could sell its superfluous quantities of electricity in the competitive sector through public auctions. The Hungarian Government then compensated MVM for the difference between the purchase price MVM paid for that electricity and the sale price obtained. Consequently, it cannot be ruled out that a wholesaler like MVM, which had to satisfy a demand fluctuating over time in a rather unpredictable manner, faced a constraint when it was under the obligation to buy minimum quantities of electricity over a long period.

115    As regards the recovery of fixed costs and the cost of capital guaranteed by the capacity fee, the applicant argues that this was provided for by the First Law on electric energy and that the inclusion of such an element was appropriate given the market situation at the time and MVM’s position as the single buyer. It adds that, without those guarantees intended to cover the cost of capital, it would not have been attractive for electricity generators to invest. It also challenges the Commission’s reliance on the judgment in Italy and SIM 2 Multimedia v Commission, which does not in its view support the position adopted in the contested decision.

116    In order to reject that argument and reply to the positions adopted by the parties as to the judgment in Italy and SIM 2 Multimedia v Commission, it is sufficient to note that there is no need to reconsider the privatisation process in respect of the applicant in the mid-1990s or the question as to what extent the PPA at issue was a transaction essential to that process, nor even the situation on the electricity market as at that date, which corresponds to the date of enactment of the First Law on electric energy.

117    It should only be examined whether the PPA at issue constituted State aid in favour of the applicant as at 1 May 2004, taking into account the situation as at that date, namely that that PPA binds the applicant to MVM. In addition, it must be noted that the applicant does not rebut, in the course of its arguments, the advantage constituted by the incorporation of the guarantees to cover the cost of the capital in the light of the circumstances on the competitive markets.

118    As regards the recovery of variable costs guaranteed by the electricity fee, the applicant claims that that fee, which covers variable costs, does not give rise to State aid because it is only if the price paid to a generator covers its variable costs, including fuel costs, that that generator will choose to operate its power plant. The applicant notes also that the incorporation of that fee in the PPA was necessary for the privatisation of its power plant.

119    The applicant’s argument based on the need to incorporate that fee in order to carry out the privatisation process must be rejected for the same reasons as those set out in paragraph 116 above. In addition, notwithstanding the guarantee of variable costs recovery provided for in the PPA at issue, it is not disputed, as the Commission correctly notes, that, in the competitive sector, there are no long-term contracts with both a minimum guaranteed off-take and a price system covering fixed, variable and capital costs, concluded outside any State intervention by a buyer having similar characteristics to those of MVM in a regulatory and economic context comparable to that prevailing in Hungary during the period under assessment. Thus, in fact, in the light of each of the features of the PPA at issue, but above all in the light of their combined effect and the whole structure of that PPA, it is apparent that the applicant was relieved of the risks normally borne by electricity generators on a competitive market.

120    As regards the applicant’s argument that the guarantee of a certain level of return on investment was necessary, because it was an essential condition for the privatisation, this must also be rejected because it has no bearing on the question of the existence of aid as at the date of Hungary’s accession to the European Union.

121    Consequently, the fourth complaint must be rejected.

122    Lastly, it is appropriate to examine a series of comments set out by the applicant, at the end of the application, criticising certain statements in the contested decision, to the extent that they appear to be linked to the examination of the first plea in law.

123    As regards recital 21 of the contested decision, the applicant cannot complain that the Commission failed to reply to a letter dated 27 February 2008, which was only copied to it and was addressed to the Hungarian authorities. In any event, first, even if the applicant sought clarifications from the Hungarian authorities as to the content of the information requests from the Commission, copying in the latter, and received no reply in that regard and, secondly, even if the statement of the facts in recital 21 is misleading, it must be found that such circumstances cannot render that decision and the assessment therein of the aid contained in the PPAs unlawful.

124    As regards recital 68 of the contested decision, the applicant challenges the description according to which the ‘[capacity fee was for] capacity reservations …, irrespective of the actual use of the plant’, basing its argument on the load­balancing role performed by the ‘F block’ of its power plant. However, first, it must be stated, as the applicant itself acknowledges, that those units did not provide solely load-balancing services. Secondly, the PPA at issue concerned not only ‘F blocks’ but also the ‘G block’ of its power plant. Lastly, it is abundantly clear from recitals 103, 192, 203 to 206, 216 and 455 of the contested decision that the Commission took into account the fact that some of the capacities reserved under the PPAs were intended to provide ancillary load-balancing services, when the power stations were technically capable of providing them.

125    The applicant challenges next recitals 148 and 226 of the contested decision, concerning the attempts at renegotiating the PPAs initiated by MVM with the electricity generators, including the applicant itself. However, none of the matters mentioned by the applicant calls in question the content of the PPAs. In any event, even if the applicant’s claim that MVM did not wish to renegotiate the PPAs and did so unwillingly were proved, the Commission’s conclusions would still not be mistaken, in particular for the reasons set out in paragraphs 83 to 92 above.

126    Recital 219 of the contested decision, which refers to the hedging against fuel price fluctuations for the benefit of electricity generators, is also criticised by the applicant. The applicant argues that no generator will willingly run its plant unless the price of electricity covers the fuel costs, unless contractually required to do so. That criticism must be rejected for the same reasons as those referred to in paragraphs 86 to 95 above, from which it is abundantly clear that, in normal commercial conditions, any generator would expect at least to share the risks associated with fluctuations in fuel costs.

127    Next, as regards recital 223 of the contested decision and related Table 7, the applicant argues that no inference whatsoever can be drawn from the figures in that table, the table being of no use for any purpose relevant in the present case. However, although the applicant challenges that table, it does not in any way call in question the conclusion in recital 223, namely that, between 2003 and 2006, the quantities sold on the public utility sector decreased by 25%.

128    The applicant questions next the reliability of the figures used in the contested decision in the light of recital 227 and Table 8 of that decision, relating to MVM’s first three auctions. The applicant submits that, contrary to what would have been expected, there is a price difference between the 2003 and 2004 figures in Table 8 regarding the average annual PPA prices, namely 11.3 and 11.7 Hungarian forints (HUF)/kWh, and the figures for the same years in Table 7 regarding the average prices on the public utility sector, namely 19 and 21.1 HUF/kWh, respectively. However, reference must be made to the footnote relating to the figures concerned in Table 7, which explains that those prices result from the regulated tariffs, which depend on the level of consumption. In addition, in answer to a question asked in that regard at the hearing, the Commission explained that the prices in Table 7 of the contested decision concerned the retail market, whereas those in Table 8 of that decision related to the wholesale market. It follows that the applicant’s criticism does not relate to comparable values.

129    As regards the applicant’s arguments concerning recital 243 and Tables 10 and 11 in the contested decision, first of all, the applicant does not challenge the data in them. It must also be noted that if an analysis is carried out of (i) the data for the average prices of electricity sold to MVM by the applicant under the PPA at issue between 2004 and 2006, stated in the application — that data having been redacted from Table 10 referred to above — and (ii) the data for the average prices of electricity sold by domestic generators without PPA to the free markets, between 2004 and 2006, in Table 11 referred to above, it is then possible to draw the same conclusions as the Commission drew in recitals 245 to 251 of that decision, namely that the prices under PPA were in fact higher than the highest observed price on the free market.

130    In addition, the applicant criticises the inclusion, among the domestic generators on the competitive market in Table 11 of the contested decision, of its ‘G1’ unit, a specialised steam-producing turbine which generates electricity as a by-product, the output of which varies unpredictably according to the needs dictated by an industrial user at a given moment. However, it is apparent from that table and the footnotes thereto that, in order to provide an appropriate basis for comparison, the Commission presented data for domestic generators selling a relatively large amount of electricity, most of the generators in that table having sold more, and sometimes substantially more, than 100 000 MWh of electricity per year. The Commission stated moreover, with regard to one generator, that it did not give the average price of the electricity which it had sold in 2006, since the amount sold that year was below 1 000 MWh. The applicant fails to challenge the appropriateness of that criterion, nor does it deny that the unit in question was in that regard a significant generator. The applicant cannot therefore argue that the inclusion of the figures concerning that unit is misleading.

131    In addition, the applicant challenges recital 249 of the contested decision. It claims that the Commission failed to take into account the specific way of setting the price of the electricity sold by the ‘F blocks’ of its power plant which plays a load­balancing role. It explains that the high price of the electricity sold to MVM from that plant was because of the flexible use which MVM chose to make of that plant.

132    In that regard, in recitals 245 to 247 of the contested decision, the Commission found that the applicant and six other generators charged their electricity under PPA at an average price of 10 to 100% or 15 to 135% higher than the highest free­market price. It then noted that those calculations were based on average price figures, that is to say, they did not calculate separately with off-peak, base or peak prices. The Commission then extended its analysis by focussing on ‘peak’ products, such as the electricity sold by the applicant’s ‘F blocks’, whose prices are generally higher than ‘base’ products. In the course of its analysis, it compared the prices of ‘peak’ products obtained from the sale of electricity from the applicant’s ‘F blocks’ with the prices of the ‘peak’ products obtained at the capacity auctions by MVM on the competitive market between 2004 and 2006. It found that the former were higher than the latter.

133    The applicant claims that that analysis is flawed, because the use which MVM chose to make of the ‘F blocks’ had a substantial effect on the price paid by that company. However, first, the applicant does not challenge the figures given by the Commission and there is nothing misleading in the fact that they are included. Secondly, in view of the figures adduced by the applicant in the application, which concern the prices of the electricity from the ‘F blocks’ if MVM had made a different use of them, it is noteworthy that those prices, even though lower than those charged for the ‘F blocks’ between 2004 and 2006, are however still equal to or higher than the highest price charged on the competitive market.

134    Furthermore, as regards the applicant’s criticisms concerning the use of the price data, it must be noted that recitals 241 to 253 of the contested decision, comparing the PPA prices actually applied with the prices achieved on the part of the wholesale market not covered by PPAs, namely the competitive sector, comprehensively address the comments received from the interested parties.

135    In recitals 237 to 240 of the contested decision, the Commission did not err in noting that the price actually paid under the PPAs is one consequence of the PPAs but not the core of the advantage entailed in them. The PPAs thus confer an economic advantage on generators, whether or not they actually led, at a given time, to prices above market prices. Consequently, any inaccuracies there might be in the contested decision as to the presentation of the data concerning the prices charged under the PPAs and in the competitive sector cannot invalidate the contested decision.

136    It follows that the applicant’s observations seeking to criticise certain statements in the contested decision must also be rejected.

137    It follows from all of the foregoing that the first and second pleas in law must be rejected as unfounded.

 The third plea in law, alleging that the Commission made several errors as regards the examination of whether the State aid was compatible with the common market

138    The third plea may be divided into two parts, the first relating to an error by the Commission inasmuch as it considered the aid contained in the PPA at issue to be operating aid and not investment aid, in respect of which Article 87(3)(a) EC was applicable, and the second relating to the issue of stranded costs recovery.

139    First of all, the Court finds that, contrary to the Commission’s contentions in its defence, it does not appear from the application that the applicant raises arguments alleging infringement of the obligation to state reasons concerning the application of Article 87(3)(a) EC.

140    As regards the first part of the plea, in support of its argument that the aid contained in the PPA at issue does not constitute operating aid and that the Commission erred in that regard in recital 396 of the contested decision, the applicant submits that the capacity fee cannot constitute operating aid, because that fee does not support any form of output but is intended solely to ensure that the capacity is installed and is usable. The capacity fee therefore constitutes only an inducement to invest in and to recover past investment costs. In addition, in order to emphasise the Commission’s alleged error in the assessment of whether the PPA at issue was compatible with the common market, in arguing that Article 87(3)(a) EC should be applied the applicant notes that the Commission conceded — in recital 392 of the contested decision — that Hungary’s entire territory could be regarded as a region covered by Article 87(3)(a) EC.

141    It should be noted that the Commission adopted, in 1998, the Guidelines on national regional aid (OJ 1998 C 74, p. 9), which were applicable at the time of Hungary’s accession to the European Union, before adopting, in 2006, the Guidelines on national regional aid for 2007-2013 (OJ 2006 C 54, p. 13), which were applicable for the period after 1 January 2007 (together ‘the two sets of guidelines on national regional aid’). The general rule in those guidelines is that State aid granted to cover investments may be authorised, whereas that is not the case for operating aid.

142    According to the case-law, operating aid is aid which is intended to relieve an undertaking of the expenses which it would normally have had to bear in its day­to-day management or its usual activities (see judgment of 20 October 2011 in Case T‑579/08 Eridania Sadam v Commission, not published in the ECR, paragraph 41 and the case-law cited).

143    In the present case, contrary to the applicant’s claims, in order to categorise the aid contained in the PPAs, including the PPA at issue, the Commission was not to take into account solely the capacity fee. As the Commission correctly observes, the PPAs constitute indistinctly a complex mechanism, where the capacity fee is only a part of MVM’s obligations. All the specific features of the PPAs are essential and the Commission could not separate the various elements of the PPAs for the purposes of assessing the compatibility of the State aid with the common market under Article 87(3) EC. The obligation in the PPAs to buy minimum quantities of electricity, whether needed or not, covers the current expenses incurred by generators and clearly cannot be considered anything other than operating aid.

144    The Commission did not therefore err in recital 396 of the contested decision in finding that the aid contained in the PPAs could not be considered investment aid.

145    In addition, it must be noted that the Commission analysed in detail, in recitals 388 to 408 of the contested decision, the question of whether the PPAs were compatible with the common market within the meaning of Article 87(3)(a) to (c) EC, taking into account the two sets of guidelines on national regional aid. However, in support of its line of argument that the aid contained in the PPA at issue constituted investment aid under Article 87(3)(a) EC and in order to challenge the Commission’s conclusion in that regard, the applicant does not attempt to rebut the specific grounds given in the contested decision.

146    In particular, the applicant does not even argue that the aid contained in the PPA at issue could fulfil the conditions laid down by the two sets of guidelines on national regional aid. It does not develop any argument in relation to those texts, even though they specify the categories of eligible costs in order for aid to be characterised as investment aid.

147    As regards the second part of the plea, the applicant puts forward arguments linked to the issue of stranded costs recovery. It refers in that regard to the Hungarian legislation, Decision 2009/287, the Commission’s Guidelines on the application of Article 81(3) of the Treaty (OJ 2004, C 101, p. 97; ‘the Guidelines on the application of Article 81(3) EC’) and Article 7(4) of Regulation No 659/1999. In the light of the method for analysing State aid linked to stranded costs set out in paragraph 71 above, several considerations must be taken into account.

148    The first consideration relates to the fact that the applicant is not able, in the context of the present action, to challenge the system of stranded costs recovery established by Hungarian Law LXX of 2008. As the Commission notes, while it is true that that law limits any future amount of stranded costs aid to the amounts to be recovered under the recovery order, that limitation was a choice of Hungary and does not flow from the contested decision.

149    The second consideration concerns the system which enables stranded costs recovery and the recovery of the aid incompatible with the common market to be synchronised. Admittedly, without prejudice to the case-law referred to in paragraph 79 above, in Decision 2009/287, concerning the PPAs concluded in Poland, the Commission did not order recovery of aid, because it effected a set-off between, first, the amount of compatible stranded costs which had to be repaid to the interested party by the national authorities and, secondly, the amount of the aid from the PPAs which had to be recovered by those same authorities. The Polish authorities had notified a stranded costs compensation scheme before the Commission adopted a final decision on the PPAs. The Commission was therefore entitled, in the same decision, to rule both on the question of the PPAs and the stranded costs recovery scheme.

150    However, in the present case, it is apparent from the contested decision, and in particular from recital 27 thereof, that, at the date of that decision, the Hungarian authorities had still not completed the required notification process for stranded costs, because they had not submitted to the Commission a comprehensive compensation mechanism officially confirmed by the Hungarian Government. Consequently, it was not possible for the Commission to effect a set-off, in the contested decision, as done in its Decision 2009/287.

151    The third consideration seeks to address the applicant’s argument referring to the 2007 Commission report. The fact that, in the course of that report and the Guidelines on the application of Article 81(3) EC to which that report refers, the Commission states that it is necessary to take into account investments made by the parties cannot in any case mean that, as the applicant suggests, the Commission was in error in failing to hold that the PPA at issue was compatible with the common market at least until the applicant had recovered its stranded costs in full under the PPA.

152    First, the applicant does not adduce any evidence capable of substantiating its claim. Secondly, as the Commission notes, the question of the recovery of stranded costs by the applicant from the Hungarian authorities has no bearing on the characterisation of the aid contained in the PPAs and in the PPA at issue in the light of Article 87(3) EC. Consequently, whether or not it is decided to effect a set-off between those two amounts to be recovered has no effect on that characterisation. Therefore, since the aid contained in the PPA at issue was correctly characterised as State aid incompatible with the common market by the Commission, the latter could not in any way have adopted a decision declaring that aid compatible with the common market until the applicant had recovered stranded costs.

153    In that regard, the applicant’s reference to Article 7(4) of Regulation No 659/1999 is wholly mistaken. Article 7(4) simply provides that when the Commission decides to close the formal investigation procedure by a positive decision, namely a decision that the aid is compatible with the common market, it may attach to that decision conditions subject to which an aid may be considered compatible with the common market and may lay down obligations to enable compliance with the decision to be monitored. In the present case, however, the Commission did not at any time take the view that the aid contained in the PPA at issue was aid compatible with the common market.

154    The contested decision is clear that that aid is incompatible with the common market. In addition, the fact that the Commission stated, in paragraph 52 of Decision C(2007) 3254 of 10 July 2007, relating to aid granted to a Hungarian electricity generator for the construction of a new electricity production unit, that it expected to adopt a final decision by the end of the year 2007 concerning the PPAs concluded on the Hungarian electricity market, proposing their amendment, could not bind the Commission as to the outcome of the decision contested in the present action.

155    Since the applicant’s argument that, in the contested decision, the Commission erred in concluding that the aid contained in the PPA at issue was incompatible with the common market, without taking into account the recovery of stranded costs, must be rejected as unfounded, its argument alleging that the contested decision is disproportionate in that regard must consequently also be rejected.

156    In any event, it must be noted that, on 15 December 2009, the Hungarian authorities notified to the Commission a stranded costs compensation scheme in favour of the electricity generators. By Decision C(2010) 2532 final, the Commission authorised that aid scheme finding that it constituted State aid compatible with the internal market within the meaning of Article 107(3)(c) TFEU.

157    In recital 68 of that decision, the Commission emphasised that its conclusion was based on the commitment of the Hungarian authorities that stranded costs recovery for the electricity generators and the recovery of the State aid contained in the PPAs would be carried out simultaneously, so that, in practice, the Hungarian Government will not make any payment to those generators but will forego simultaneously the amounts to be repaid to it in application of the contested decision.

158    In its letter of 15 September 2010 forwarding to the Court a copy of Decision C(2010) 2532 final, the applicant stated that the amount intended to compensate its stranded costs for electricity exceeded that which it had to repay in respect of the aid contained in the PPA at issue and that the difference to its disadvantage was EUR 84 million. However, the fact that the applicant may not recover the difference between those two amounts is not a consequence of that decision, but of the second sentence of Section 5 of Hungarian Law LXX of 2008 referred to above, decided upon by the Hungarian authorities.

159    It follows from the foregoing considerations that the arguments expounded by the applicant in the second part of the third plea in law must be rejected.

160    The third plea in law must therefore be rejected as unfounded.

 The fourth plea in law, alleging that the order for recovery of the aid is unlawful

161    In support of the fourth plea in law, the applicant disputes the legality of the order for recovery of the aid alleged to be unlawful and incompatible. It puts forward several complaints in that regard, all of which are contested by the Commission.

162    In the first place, the applicant relies on Article 14(1) of Regulation No 659/1999 to support its argument that the recovery order was contrary to ‘the general principle of Community law based on protection of legitimate expectations’ and to the principle of legal certainty.

163    Article 14(1) of Regulation No 659/1999 provides that, where negative decisions are taken in cases of unlawful aid, namely a decision of incompatibility with the common market, the Commission is to decide that the Member State concerned is to take all necessary measures to recover the aid from the beneficiary. Article 14(1) further provides that the Commission must not require recovery of the aid if this would be contrary to a general principle of Community law.

164    However, the complaint alleging infringement of the principles of the protection of legitimate expectations and of legal certainty was rejected for the reasons developed in paragraphs 100 to 109 above in the context of the first and second pleas in law. In the light of the considerations set out in those paragraphs, and that in paragraph 152 above, concerning the lack of impact of the issue of the recovery of stranded costs on the characterisation of State aid, all the arguments put forward by the applicant in its first complaint must be rejected.

165    In the second place, as regards the applicant’s criticisms concerning the context in which Hungary must calculate the amount of the alleged aid which must be recovered, it should be observed that, according to the case-law of the Court of Justice, cited moreover in recital 446 of the contested decision, no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the addressee of the decision to work out itself, without overmuch difficulty, that amount (Case C‑480/98 Spain v Commission [2000] ECR I‑8717, paragraph 25, and Case C‑415/03 Commission v Greece [2005] ECR I‑3875, paragraph 39). In addition, the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑355/95 P TWD v Commission [1997] ECR I‑2549, paragraph 21, and Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 97).

166    Thus, when, in the contested decision, Article 4(1) provides that ‘[t]he exact amount of aid to be recovered should be calculated by Hungary on the basis of an appropriate simulation of the wholesale electricity market’, this means that the application and performance of an ‘appropriate simulation’, as specified in the operative part, must be carried out in the light of the detailed guidelines and applicable principles supplied by the Commission in the grounds of the contested decision.

167    In the third place, the applicant challenges the Commission’s use of market simulation for the purpose of calculating the amounts to be recovered. More specifically, it criticises the method used in relation to three aspects, in respect of which it maintains that the Commission substitutes speculation for investigation.

168    As a preliminary point, it must be borne in mind that the aim of obliging the State concerned to abolish aid found by the Commission to be incompatible with the common market is to restore the previous situation. The Court of Justice has stated in that regard that that objective is accomplished when the recipients have repaid the sum paid by way of unlawful aid, thereby forfeiting the advantage which they had enjoyed over their competitors on the market, and when the situation prior to payment of the aid is restored (see Case C‑75/97 Belgium v Commission [1999] ECR I‑3671, paragraphs 64 and 65 and the case-law cited, and Budapesti Erőmű v Commission, paragraph 107).

169    In that regard, it is true that the use of market simulation, as carried out in the present case in order to calculate the amount to be recovered, may involve assumptions and a certain degree of uncertainty. However, as the Commission correctly states, that simulation was appropriate in the present case for the purpose of carrying out such a calculation.

170    In recital 444 of the contested decision, the Commission was correct to note expressly that accurately calculating the amount of State aid granted to the beneficiaries was complex, as it depended essentially on what the prices and amounts of energy produced and sold would have been on the Hungarian wholesale market between 1 May 2004 and the date of termination of the PPAs should none of the PPAs have been in force during the period in question. It was therefore a question of simulating the conditions which would have prevailed on the Hungarian wholesale electricity market in the absence of PPAs from 1 May 2004. In that context, recitals 447 to 465 of the contested decision provide detailed guidelines and applicable principles in order to calculate the sum to be recovered.

171    In that regard, the applicant cannot call in question the Commission’s assessment by essentially reproducing its arguments, which were the subject of the second complaint relied on in support of the first and second pleas in law, according to which the PPAs were in MVM’s commercial interests, even after 1 May 2004. It must be noted that, in the course of its reasoning, the applicant argues that it is not clear that MVM had an interest in the termination of the PPAs and adds that, if the PPAs had been terminated, MVM, which always purchased more electricity than the minimum off-take, would not have reduced its purchases. The applicant also complains that the Commission failed to take into consideration MVM’s opinion as to electricity prices and market structure in the absence of the PPAs.

172    In order to reject those arguments, it is appropriate to refer to the considerations set out earlier in the examination of the second complaint relied on in support of the first and second pleas in law. Since the PPAs were not in line with the types of agreements concluded in standard commercial practice, the Commission was entitled, in connection with the simulation of a market with no incompatible State aid, and without committing an error, to start from the assumption of no PPAs on that market as from 1 May 2004, and not, as the applicant suggests, from the assumption that the PPAs were simply amended as from that date.

173    In addition, as to the applicant’s objections regarding the quantity of electricity which MVM would have purchased from the electricity generators in the absence of the PPAs, it must be recalled, as is apparent from paragraph 112 above, that the minimum off-take obligation goes beyond standard commercial practices on the European energy markets and that the fact that MVM bought more than the minimum guaranteed off-take in certain years does not mean that the structural risk of having to purchase, overall, more electricity than it needed to cover its needs, which are linked to demand in the public utility sector, would not have existed. Since that feature of the PPAs is open to criticism and has moreover contributed to the aid contained in the PPA at issue being characterised as State aid incompatible with the common market, a market simulation which starts from the assumption that the public undertaking purchases a quantity of electricity intended to cover the needs of the above-mentioned sector must be endorsed.

174    Lastly, the applicant criticises the fact that the Commission made no attempt to establish the views of MVM or the Magyar Energetikai és Közmű-szabályozási Hivatal (the Hungarian Energy Office) on the price levels and market structure if the PPAs had been terminated as from 1 May 2004. The applicant submits that the Commission did not therefore conduct a diligent and impartial examination of the case.

175    Where the Commission has the power of appraisal in order to allow it to fulfil its functions, respect for the rights guaranteed by the European Union legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and to provide a sufficient statement of the reasons for its decisions (see Joined Cases T‑309/04, T‑317/04, T‑329/04 and T‑336/04 TV 2/Danmark and Others v Commission [2008] ECR II‑2935, paragraph 179 and the case-law cited).

176    In the context of State aid control, it is necessary to recall that, even though the Member State must, in accordance with the duty to cooperate in good faith laid down in Article 10 EC, cooperate with the Commission by providing it with the information that will allow the Commission to take a decision on whether the measure at issue contains State aid, the fact remains that the Commission is under an obligation, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, to conduct a diligent and impartial examination, and that obligation requires, in particular, a careful examination of the information which the Member State provides to the Commission (see TV 2/Danmark and Others v Commission, paragraph 183 and the case-law cited).

177    In addition, if the Commission does decide to order the recovery of a specific amount, it must, pursuant to its obligation to conduct a diligent and impartial examination of the case under Article 88 EC, assess as accurately as the circumstances of the case will allow, the actual value of the benefit received from the aid by the beneficiary (see Case T‑366/00 Scott v Commission [2007] ECR II‑797, paragraph 95 and the case-law cited).

178    In the present case, it is apparent from recitals 447 to 465 of the contested decision, concerning the calculation of the amount to be recovered, that the Commission carried out a careful and precise examination of the documents in the case in order to determine the price level and the structure of the electricity market in the absence of PPAs from 1 May 2004. It therefore fulfilled it duty of diligence as provided for in the case-law referred to in paragraphs 175 to 177 above. Nor can the Commission in any way be accused of any lack of impartiality in not attempting to establish the views of MVM or the Hungarian Energy Office for the purposes of simulating the electricity market in order to calculate the amount to be recovered. Moreover, the applicant does not adduce any specific evidence in that regard to indicate that the Commission was required, in the interests of impartiality, to consult, by whatever means, either of the two abovementioned entities concerning the method to be adopted in order to simulate the market. In any event, Regulation No 659/1999 does not provide for the specific consultation of third parties, beyond the formal investigation procedure, as regards the instructions provided to the Member State for the calculation of the amounts recoverable.

179    In the fourth place, the applicant criticises the contested decision inasmuch as the existence of an advantage was established by reference to the standard commercial practices of other Member States, whereas the market simulation carried out ignores those commercial practices. The applicant then comments on the provisional conclusion of the Hungarian authorities after their simulation, according to which the PPA did not in fact confer any advantage on the applicant.

180    The applicant’s criticism must be rejected since it does not identify which features of the electricity markets in other Member States are not reflected in the market simulation. In the absence of other information to clarify and substantiate it, that contention must be rejected. As regards the applicant’s second observation, it is sufficient to note that the applicant forwarded, by letter of 15 September 2010, a copy of Decision C(2010) 2532 final, in which it is apparent, in Table 1, that the amount of the aid contained in the PPA at issue is evaluated at approximately EUR 476 million.

181    In the fifth place, the applicant alleges a number of errors as to the method used in order to quantify the aid allegedly contained in the PPA at issue.

182    First, it submits that the market simulation assesses the alleged aid by reference to the difference between the actual revenue received by the applicant and the hypothetical revenue in the counterfactual scenario, without taking into account the related difference in costs borne by the applicant. The applicant argues that if it had sold less electricity in that scenario, the costs that it would have borne would have been proportionately lower.

183    In its observations lodged at the Court Registry on 1 March 2013, and also at the hearing, concerning the method of recovery, the applicant repeated its criticism as to the failure to take into account, in the counterfactual scenario, the cost of fuel. The applicant argues that, by contrast with the facts in Budapesti Erőmű v Commission, the cost of gas in relation to itself is high and taking that cost into account, which results in a difference in profits not revenue being assessed, is necessary and affects the amount of aid to be recovered. According to the applicant, that is evidenced by a report, annexed to the file, dated December 2008 and forwarded to the Hungarian authorities, produced by economic experts and entitled ‘Methodology for the calculation of State Aids — A Study for the Hungarian Energy Office’. The applicant observes that the first evaluation of the amount of aid to be recovered, carried out by those experts, which was based on a difference in profits, gave rise moreover to a negative amount, whilst that was not the case for the second evaluation by those same experts, which was based on a difference in revenues.

184    As regards the calculation of the amount to be recovered, in recital 442 of the contested decision, the Commission correctly took as its starting point the premiss that the advantages flowing from the PPAs went far beyond any potential positive difference between PPA prices and prices which could have been achieved on the market without PPAs. The Commission was, however, of the view, in recital 443 of that decision, that the overall value of all the conditions of MVM’s long­term purchase obligations for the period as from 1 May 2004 could not be calculated exactly. As stated in paragraph 170 above, the Commission explained, in recital 444 of the contested decision, the reasons why accurately calculating the amount of State aid granted to the beneficiaries was very complex. Consequently, it decided to limit its recovery order to the difference that may have existed between the revenues of the electricity generators under their PPAs and the revenues they could have obtained on the market in the absence of PPAs over the time period referred to.

185    As the applicant correctly maintains, it must be stated that the method adopted in the contested decision in order to calculate the amount to be recovered is therefore based on a difference in revenues, not a difference in profits; accordingly, no account is taken of the cost of fuel, which is, however, likely to be lower in the counterfactual scenario than the actual scenario, and could therefore result in the amount of aid to be recovered being far lower than would be the case if the revenue-based method were followed.

186    However, the approach followed by the Commission, which was confirmed in Budapesti Erőmű v Commission, must also be approved in the present case.

187    As stated in paragraph 168 above, it must be borne in mind that the objective pursued by the Commission when it requires the recovery of aid found to be incompatible with the common market is to have the recipient forfeit the advantage which it had enjoyed over its competitors on the market.

188    The existence of an economic advantage must, in this instance, in accordance with the principle of a private operator in a market economy, be assessed on the basis of the conduct of the public undertaking conferring the advantage under consideration, not on the basis of the conduct of the beneficiary of that advantage. Therefore, as the Court confirmed in Budapesti Erőmű v Commission, that advantage is reflected in the difference between the amounts which MVM would, under normal market conditions, have paid for the purchase of the electricity needed and the amounts which it actually paid for the electricity purchased, whether it was needed or not (Budapesti Erőmű v Commission, paragraph 115).

189    Even if, as the applicant stated at the hearing and as is apparent from the experts’ report referred to in paragraph 183 above, those experts stated that ‘one should in fact [have] compare[d] profits under the historic and the counterfactual scenario and compute state aid as the difference between profits under the PPA regime and profits under the alternative regime’, it must also be noted that they added that ‘[t]his implie[d] … a more elaborate way to compute State aid’.

190    In that regard, as the Commission has correctly maintained, concerning the cost of fuel referred to by the applicant, that would entail making assumptions, in the context of the counterfactual scenario, as to the contractual conditions under which the applicant would have bought gas for its power plant. In addition, if the approach based on a difference in profits were to be followed and the appropriate conclusions drawn therefrom, it would be necessary to examine all the costs incurred by the company generating the electricity — which would be lower if the production and sale of electricity were lower than they would have been under the PPAs — and not merely to deduct fuel costs.

191    However, that would make the calculation of the amounts to be recovered subject to several speculative assumptions linked to the applicant’s conduct, or to that of the electricity suppliers, which could not be taken into account. That approach would therefore imply reconstructing past events differently on the basis of hypothetical elements such as the choices, often numerous, which could have been made by the operators concerned, since the choices actually made with the aid might prove to be irreversible. It is to be noted that such an approach was rejected by the Court of Justice in Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 118.

192    Consequently, it must be found that, in the present case, the Commission has not erred in adopting a method of recovery, in the contested decision, defining the amounts to be recovered as a difference in revenue and not as a difference in profits (see, to that effect, Budapesti Erőmű v Commission, paragraph 115).

193    The arguments expounded by the applicant in the reply must also be examined.

194    First of all, the applicant refers to several Commission decisions adopted in State aid cases, more specifically Commission Decision of 24 January 2007 on State aid C 52/2005 (ex NN 88/2005, ex CP 101/2004) implemented by the Italian Republic for the subsidised purchase of digital decoders (OJ 2007 L 147, p. 1), and Decision 2009/287. It is, however, sufficient to refer to the case-law set out in paragraph 79 above, according to which such decisions cannot be relevant for the assessment by the Court in the present case.

195    In addition, in the light of the principle recalled in the case-law in paragraph 79 above, according to which each case of State aid must be assessed separately by the Court so that there is no need to take into account the Commission’s previous practice in taking decisions, the Court must therefore also reject the applicant’s argument referring to the Commission’s arguments in the actions brought before the Court in Joined Cases T‑116/01 and T‑118/01 P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2003] ECR II‑2957.

196    Secondly, the Court must also reject the applicant’s argument that the contested decision is flawed because recital 462 thereof permits, but does not require, Hungary to deduct the difference between revenues that the generators would have obtained from customers other than MVM under the counterfactual scenario and the revenues which they obtained from those customers under the PPAs.

197    In the present case, the applicant fears that the Commission left Hungary a discretion with the result that it recovers more than the actual amount of the aid incompatible with the internal market.

198    It has been held that, when the Commission decides to order the recovery of a specific amount, it must assess as accurately as the circumstances of the case will allow, the actual value of the benefit received from the aid by the beneficiary. In restoring the situation existing prior to the payment of the aid, the Commission is, on the one hand, obliged to ensure that the real advantage resulting from the aid is eliminated and it must thus order recovery of the aid in full. The Commission may not, out of sympathy with the beneficiary, order recovery of an amount which is less than the value of the aid received by the latter. On the other hand, the Commission is not entitled to mark its disapproval of the serious character of the illegality by ordering recovery of an amount in excess of the value of the benefit received by the recipient of the aid (Case T‑366/00 Scott v Commission, paragraph 95).

199    In the light of the case-law cited in paragraph 165 above, it must also be noted that, when the Commission does not fix the exact amount of the aid to be recovered, it is sufficient for it to include information enabling the recipient to work out himself, without overmuch difficulty, that amount.

200    In recital 462 of the contested decision, the Commission found that since no capacity was reserved by MVM under the counterfactual scenario, that would enable the generators to sell their output to customers other than MVM. Accordingly, the Commission acknowledged that the revenues obtained by those generators might be higher than under the PPAs and took the view, consequently, that the Hungarian authorities could deduct the difference between the revenues if that difference was positive.

201    While it is not disputed that the Commission used the words ‘may deduct’ in recital 462 of the contested decision, the legality of the contested decision cannot be affected on that basis.

202    It can be seen from the wording of that recital that the Commission started from the assumption that it was possible that, under the counterfactual scenario, the revenues of the generators might have been higher than under the PPAs, and that it is in that context, where the difference between the revenues obtained from sales to customers other than MVM and the revenues obtained under the actual scenario was positive, that the Hungarian authorities could deduct the amount of that difference in order to calculate the amount to be recovered.

203    Thirdly, the applicant maintains that the counterfactual scenario is unrelated to the situation which would actually have existed in Hungary after 1 May 2004 in the absence of PPAs. It also criticises the fact that the counterfactual scenario is based on generation capacity which exists only because of the PPAs. The applicant asserts next that there is no electricity market anywhere in the world in which the conditions of the scenario examined by the Commission prevail, that is, a market without price-setting contracts at all. In addition, the counterfactual scenario wrongly postulates a complete absence of price competition. Lastly, it submits that the method used by the Commission wrongly inflates the amount of alleged aid to be recovered.

204    It must be noted that, in the circumstances of the present case, the restoration of the previous situation must be understood as meaning that the Hungarian electricity market would have functioned without PPAs as from 1 May 2004. In that regard, contrary to the applicant’s claims, the contested decision clearly shows that the market simulation carried out by the Commission is indeed based on a market without any PPAs. As stated in paragraph 178 above, in recitals 447 to 465 of that decision the Commission carried out a careful and precise examination of the documents in the case in order to determine the price level and the structure of the electricity market in the absence of PPAs from 1 May 2004.

205    In addition, it is appropriate to respond to the applicant’s claims that, first, the contested decision overlooks price-setting contracts and, secondly, the decision, in the counterfactual scenario, not to take forward contracts as the point of reference results in a complete absence of price competition.

206    It must be noted that the question of the nature of the contracts was duly examined by the Commission in recitals 449 and 450 of the contested decision. It is apparent from those recitals that the Commission decided to take spot or short-term markets and not forward markets as the point of reference. However, contrary to the applicant’s claims, such a choice by the Commission is not unrealistic and the applicant’s arguments referring to the 2007 Commission report are not sufficient to call in question that choice.

207    In paragraphs 364 to 366 of the 2007 Commission report, spot and forward markets are clearly identified as being markets for trading electricity in the European Union. Indeed, those two types of market are investigated in detail and the specific features of price formation and trade volumes on those markets are shown, for spot markets, in paragraphs 368 to 372 and 380 to 382 of that report, and, for forward markets, in paragraphs 373 to 376 and 383 of the report, respectively.

208    While it is apparent from the 2007 Commission report that significant variations differences exist, between EU geographical areas, in the ratios of spot and forward volumes traded on their electricity markets to national electricity consumption, such variations result from the framework established on the electricity wholesale market on the basis of those geographical areas and the strategies developed by the players on the electricity market.

209    In the light of those factors, the Commission can in no way be criticised for taking spot markets as the point of reference, and thus the specific price-setting features on those markets, namely that the market simulation must be carried out on the basis of short-term marginal costs. The applicant’s criticism in that regard and the arguments which it puts forward in support thereof must therefore be rejected as unfounded.

210    In the light of the considerations set out in the preceding paragraphs, the applicant cannot maintain that the PPA at issue was a contract of a perfectly normal type on the electricity markets.

211    Fourthly, the Court must reject the applicant’s claim that the method used wrongly inflated the amount of the alleged aid, and the arguments put forward in support thereof, according to which, first, there was no breach of EU law when the PPAs were executed and, secondly, the applicant believed that it was promoting the European public interest by contributing to the modernisation of the Hungarian electricity industry. It is apparent from the considerations set out in the present judgment that the PPAs, including the PPA at issue, amounted to a measure containing State aid incompatible with EU law.

212    Furthermore, the applicant cannot rely on the fact that the counterfactual scenario is based on a generation capacity which exists only because of the PPAs since that capacity results from investments made on the basis of those PPAs. It must be recalled that the relevant date in the present case is 1 May 2004. Consequently, the fact that the PPAs were concluded in the context of a privatisation process and encouraged the investments which enabled the existing production capacity cannot be relied on for the purpose of negating that generation capacity in the context of the simulation of the market which would have existed as from 1 May 2004. In addition, in the light of the case-law referred to in paragraph 191 above, such an argument must be rejected. Furthermore, that argument is more closely related to the recovery of stranded costs, such as examined in Decision C(2010) 2532 final, which is not the subject of the present action.

213    Fifthly, the applicant argues that the contested decision does not make it possible for the recipients of the alleged aid to work out for themselves the exact amount ordered to be recovered.

214    The Court notes the case-law referred to in paragraph 165 above according to which, when the Commission orders the recovery of aid declared incompatible with the common market, it is sufficient for its decision to include information enabling the addressee of the decision to work out that amount itself, without overmuch difficulty. In the light of what has just been stated in the context of the fourth plea in law and in view of the wording of recitals 447 to 465 of the contested decision, it must be found that the Commission set out sufficiently clear and precise information to make it possible for Hungary, the addressee of the contested decision to which it fell to calculate the amount to be recovered, to carry out that calculation.

215    Consequently, contrary to what is maintained by the applicant, the Commission stated, in recital 447 of the contested decision, that it was providing in that decision guidelines on how the recovery amount should be quantified. The applicant’s arguments put forward in that regard to support its line of argument must therefore be rejected. In particular, even if, as the applicant submits, it has taken Hungary, with the assistance of outside consultants, 11 months to develop a ‘model’ to carry out the required simulation, it is apparent from Decision C(2010) 2532 final that, less than two years after the adoption of the contested decision, the amount of the aid contained in the PPAs had been quantified.

216    Sixthly, it is appropriate to respond to the applicant’s argument alleging a breach of essential procedural requirements inasmuch as it had no opportunity to comment on the calculation method which the Commission intended to use. The applicant states in that argument that the notice published by the Commission under Article 88(2) EC gave no indication in that regard and that the Commission ought therefore to have published a supplementary notice.

217    First of all, in the light of what has been stated in paragraphs 167 to 178 above, the applicant’s misconceived premiss that the calculation method is problematical must be rejected.

218    In addition, as stated in paragraph 178 above, Regulation No 659/1999 does not provide for a specific consultation with third parties, beyond the formal investigation procedure, as regards the instructions provided to the Member State for the calculation of the amounts to be repaid. It is apparent from reading Articles 6, 7 and 20(1) of that regulation together that the right of interested parties to submit comments is acknowledged only following a Commission decision to initiate the formal investigation procedure. The comments received are then submitted to the Member State concerned and any interested party having submitted comments receives a copy of the Commission’s decision to close the formal investigation procedure.

219    Moreover, the EU case-law cited by the applicant in support of its arguments cannot call in question the foregoing findings.

220    As regards the judgment in Joined Cases T‑111/01 and T‑133/01 Saxonia Edelmetalle and ZEMAG v Commission [2005] ECR II‑1579, paragraph 50 of that judgment, cited by the applicant, does indeed expressly state that the decision to open the formal investigation procedure must be sufficiently precise to enable the parties concerned to familiarise themselves with the reasoning relied on by the Commission, in order to participate in an effective manner in the formal investigation procedure during which they will have the opportunity to put forward their arguments. However, the Court expressly relates that statement to the provision laid down in Article 6(1) of Regulation No 659/1999, according to which ‘[t]he decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the … measure and shall set out the doubts as to its compatibility with the common market’, and not to the reasoning that may be adopted by the Commission as regards the calculation of the amount of the aid.

221    As regards paragraph 97 of the judgment in Case T‑34/02 Le Levant 001 and Others v Commission [2006] ECR II‑267, cited by the applicant, that judgment does not lay down an obligation for the Commission to provide a supplementary notification based on Article 88(2) EC, setting out the method to be used in order to quantify the amount of the aid, or even the right of an interested party to submit its observations on such a notification. That judgment merely recalls the right, under Article 6(1) of Regulation No 659/1999, of an undertaking against which the Commission is preparing to adopt an adverse decision designating that party as a beneficiary of aid incompatible with the common market to have the opportunity to submit comments prior to the adoption of such a decision. In the present case, it is not disputed that the applicant benefited from such a right, in submitting its comments, dated 14 February 2006, on the notification of 9 November 2005 by the Commission. Consequently, it must be found that the Commission did not fail to have regard to the general principle of EU law that requires that any person against whom an adverse decision may be taken must be given the opportunity to make his views known effectively regarding the facts held against him as a basis for the decision in question.

222    In addition, the calculation of the amounts to be repaid is not a matter for the beneficiary of the aid, but for the Member State concerned, in this case the Hungarian authorities. It does not appear that those authorities have stated that that simulation was impossible or excessively difficult.

223    It follows from all the foregoing that the fourth plea in law must therefore be rejected.

224    In the light of all the foregoing, since it has sufficient information from the documents in the file to give judgment, the Court must dismiss (i) the application for the measure of inquiry sought in the third head of claim in the application, requesting the Commission to provide to the Court copies of all written communications between the Commission and the Hungarian authorities and all records of meetings and discussions between them, and (ii) the application for the measure of inquiry sought in the fourth head of claim in the application and in the two letters lodged at the Court on 6 December 2010 and 23 April 2012 for an expert to be appointed in order to prepare a report in particular on the validity of the applicant’s criticisms contained in its application concerning the recovery methodology prescribed by the contested decision.

225    The action must therefore be dismissed in its entirety as unfounded and there is no need to grant the applicant’s request for a measure of organisation of procedure.

 Costs

226    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered, in accordance with the form of order sought by the Commission, to bear its own costs and to pay those of the Commission.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Dunamenti Erőmű Zrt. to bear its own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 30 April 2014.

[Signatures]