GC, 6th chamber, April 30, 2014, No T-468/08

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 — Obligation to state reasons — Concept of State aid — Advantage — Selective nature — State resources — Imputability to the State — Effect on trade between Member States — Rights of the defence — Legal certainty — Legitimate expectations — Equal treatment — Proportionality — Misuse of powers — Article 10 of the Energy Charter Treaty)

In Case T‑468/08,

Tisza Erőmű kft, formerly AES-Tisza Erőmű kft, established in Tiszaújváros (Hungary), represented initially by T. Ottervanger and E. Henny, lawyers, and subsequently by T. Ottervanger,

applicant,

v

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

defendant,

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

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 16 May 2013,

gives the following

Judgment

 Background to the dispute

 Information concerning the applicant

1        The applicant, Tisza Erőmű kft, formerly AES-Tisza Erőmű kft, is an electricity generator on the Hungarian electricity market. In 1996, when the company was still a public undertaking, it was bought by AES from Magar Villamos Muvek Zrt (‘MVM’), a 99% State-owned entity, and the Hungarian Privatisation and State Holding Company. AES, which has been active in the Hungarian power sector since 1996, is an indirect subsidiary of AES Corp., a company with operations in 27 countries on five continents. Following its participation in an open and internationally advertised tender, AES’s bid for the takeover of the abovementioned public undertaking was accepted.

2        Against that background, AES took on the long-term power purchase agreement concluded on 10 October 1995 between MVM and the public undertaking in question (‘the PPA at issue’). The PPA at issue covers the Tisza II power plant, constructed between 1972 and 1978, the gross capacity of which is approximately 860 MW split into four 215 MW units. That power plant is in essence fuelled by natural gas and has been substantially modernised in order to comply with European standards. The new modernised units were brought into service in the course of 2004.

3        Article 41(1) of Hungarian Law XLVIII of 1994 on the generation, transport and supply of electricity (‘the First Law on electric energy’), which was in force at the time of the conclusion of the PPA at issue, provided that ‘public power generators [were] required to offer their capacity to the distribution company [MVM]’ and that ‘an agreement on generation capacity utilisation and the purchase of power [was to] be concluded.’

4        After privatisation, the PPA at issue was partially amended by an agreement concluded on 19 December 2001 between Hungary, MVM, the applicant and AES Corp. (‘the 2001 agreement’).

 Power purchase agreements

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

6        Those 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.

7        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.

8        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.

 Hungarian electricity market

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

10      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 the First Law on electric energy, MVM was required to ensure the security of energy supply in Hungary at the lowest possible cost.

11      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.

12      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

13      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 and the Slovak Republic on 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

14      By letter of 31 March 2004, the Hungarian authorities notified the Commission of the European Communities of Government Decree 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.

15      A number of official letters were subsequently exchanged between the Hungarian authorities and the Commission concerning the notified measure. By letter of 21 December 2004, the applicant commented on the notification registered under case number HU 1/2004.

16      By letter of 13 April 2005, the Hungarian authorities withdrew the notification of Government Decree 183/2002. 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.

17      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 (‘the opening decision’).

18      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 Hungarian electricity generators, including the applicant. The applicant submitted its comments by letters of 13 and 14 February 2006. By letters of 14 December 2006 and 5 March 2008, the applicant submitted further comments to the Commission.

 The contested decision

19      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’).

20      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).

21      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).

22      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).

23      In the third place, the Commission analysed 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).

24      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).

25      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).

26      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).

27      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).

28      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).

29      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).

30      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

31      By application lodged at the Court Registry on 21 October 2008, the applicant brought the present action.

32      By a separate document lodged at the Court Registry on the same day, the applicant brought an application for interim measures, in which it claimed, in essence, that the President of the General Court should suspend the operation of Article 1 of the contested decision, pending the adoption of an order terminating the proceedings for interim measures, and, in any event, until the General Court had ruled on the main action. By order of the President of the General Court of 23 December 2008 in Case T‑468/08 R AES-Tisza v Commission, not published in the ECR, the application for interim measures was dismissed and the costs reserved.

33      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

34      The Commission contends that the Court should:

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

–        in the alternative, dismiss the action as unfounded;

–        order the applicant to pay the costs.

35      By document lodged at the Court Registry on 18 February 2009, Budapesti Erőmű Zrt., operating in the area of the production of electrical energy in Hungary, requested leave to intervene in support of the form of order sought by the applicant. That application was served on the parties on 9 March 2009 in accordance with Article 116(1) of the Rules of Procedure of the General Court.

36      By document lodged at the Court Registry on 26 March 2009, the Commission raised objections to that application and contended that the Court should order Budapesti Erőmű to pay the costs relating to the intervention proceedings. By document lodged at the Court Registry on 7 April 2009, the applicant submitted that the application for leave to intervene should be dismissed.

37      The applicant lodged its reply at the Court Registry on 6 April 2009. By letter lodged at the Court Registry on 7 April 2009, the applicant requested confidential treatment of certain parts of the application and the reply in the event of leave to intervene being granted. The applicant sent a non-confidential version of those documents to the Court Registry on 15 April 2009.

38      By letter lodged at the Court Registry on 26 March 2009, the Commission also requested confidential treatment of certain elements of its defence and submitted a non-confidential version of the defence that same day. The Commission lodged its rejoinder at the Court Registry on 22 July 2009.

39      By order of the General Court (Sixth Chamber) of 16 December 2009, Budapesti Erőmű was granted leave to intervene in the present case in support of the form of order sought by the applicant and the costs were reserved.

40      By letter lodged at the Court Registry on 8 January 2010, the applicant requested confidential treatment of parts of the Commission’s defence and of parts of the Commission’s rejoinder. It submitted a non-confidential version of those pleadings that same day. By letter lodged at the Court Registry on 11 January 2010, Budapesti Erőmű stated that it was raising no objections to the applicant’s request for confidential treatment. A common non-confidential version of the defence was lodged at the Court Registry on 3 March 2010 by the Commission.

41      By letter lodged at the Court Registry on 5 February 2010, Budapesti Erőmű informed the Court that it would not submit a statement in intervention but that it reserved the right to make oral submissions at the hearing.

42      The written procedure was closed on 10 February 2010.

43      By letter lodged at the Court Registry on 7 February 2011, the applicant requested 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 records of oral communication between the Commission and MVM during the course of the administrative procedure prior to the adoption of the contested decision. By letters lodged at the Court Registry on 8 March 2011, the Commission and Budapesti Erőmű submitted their observations on that request.

44      By letter lodged at the Court Registry on 30 March 2011, Budapesti Erőmű stated its intention to withdraw from the present proceedings. By letter lodged at the Court Registry on 6 April 2011, the Commission stated that it had no observations to submit on the withdrawal of Budapesti Erőmű and requested that the Court order Budapesti Erőmű to pay the costs relating to the intervention. The applicant did not submit observations within the prescribed time-limit.

45      By order of the President of the Seventh Chamber of the General Court of 5 May 2011, Budapesti Erőmű was removed from the Court register as an intervener in the present case. Budapesti Erőmű was ordered to bear its own costs and to pay the costs of the Commission relating to the intervention. The applicant was ordered to bear its own costs relating to the intervention.

46      By letter lodged at the Court Registry on 10 May 2012, the applicant requested that the written procedure be reopened and requested permission to submit new evidence, namely the judgment of 13 February 2012 in Joined Cases T‑80/06 and T‑182/09 Budapesti Erőmű v Commission, not published in the ECR, and Resolution No 342/2010 of the Hungarian Energy Office, so that it might make written submissions on those documents.

47      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.

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

49      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 parties were lodged at the Court Registry on 19 February 2013.

50      In that regard, referring in particular to the pleadings submitted during the written procedure, the Commission stated, for each of the pleas in law raised, the reasons for which the present action, as in Budapesti Erőmű v Commission, should be dismissed. In its observations, the applicant, after making a number of introductory remarks, put forward observations relating to the specific features of the present case as compared with the case in Budapesti Erőmű v Commission so far as concerned (i) the relevant date for the purposes of determining the existence of any State within the meaning of Article 87(1) EC, (ii) the requirement for an economic advantage, (iii) the question relating to the distortion of competition and (iv) infringement of Article 88(3) EC and Article 14 of Regulation No 659/1999, and recovery and calculation of the alleged aid.

51      By letter lodged at the Court Registry on 18 April 2013, the applicant informed the Court of its change of name, that its name was no longer AES-Tisza Erőmű, but Tisza Erőmű. By letter lodged at the Court Registry on the same day, it informed the Court that it would be accompanied by an expert at the hearing.

52      The parties presented oral argument and replied to the oral questions of the Court at the hearing on 16 May 2013. In particular, the Court asked the applicant a question concerning the provision of the First Law on electric energy requiring electricity generators, such as the applicant, to offer their capacity to MVM and to conclude an agreement with MVM concerning generation-capacity use and the purchase of electricity. In that regard, the Court decided not to close the oral procedure when the hearing was brought to an end and granted the applicant a period of one week to confirm in which article of the abovementioned law that requirement was laid down. The applicant replied to the Court’s question by letter lodged at the Court Registry on 23 May 2013. By letter of 7 June 2013, the Court informed the parties that the President of the Sixth Chamber had decided to close the oral procedure on 6 June 2013.

 Law

53      In support of its action, the applicant puts forward seven pleas in law claiming (i) infringement of Article 87(1) EC in that the Commission has failed to prove the existence of an advantage, (ii) infringement of fundamental principles of EU law, (iii) manifest errors of assessment as regards the application of the criteria laid down in Article 87(1) EC, (iv) failure to state sufficient reasons in the contested decision as required by Article 253 EC, (v) infringement of points (a) and (c) of Article 87(3) EC, (vi) infringement of the principle of legal certainty so far as the recovery order is concerned and (vii) infringement of fundamental principles of EU law in ordering recovery of the alleged aid.

 The first and third pleas in law, alleging infringement of Article 87(1) EC

54      The first plea in law, which alleges that the Commission failed, in the contested decision, to prove the existence of an advantage, is structured in three limbs, which overlap in part with the first limb of the third plea, related to the concept of economic advantage. It is therefore appropriate to examine them together.

55      The first limb of the first plea alleges that the Commission failed to prove to the requisite legal standard that the applicant received a financial advantage through State resources. According to the applicant, the Commission did not carry out an individual assessment of each of the PPAs. It also maintains that the Commission did not correctly apply the market economy investor principle. The applicant submits that, in the first place, the Commission’s approach is not consistent with EU case-law, in the second place, the Commission failed to take account of the seller’s obligations under the PPA at issue and, in the third place, the Commission deployed criteria based purely on hypothetical assumptions.

56      The second limb of the first plea concerns the Commission’s allegedly erroneous qualification of the PPAs as a common or generic system conferring an advantage. The applicant maintains that the Commission erred in law in considering the PPAs to be a generic system and in classifying that generic system as an advantage. It submits that the PPA at issue is a contract negotiated on normal commercial terms with MVM. Furthermore, the Commission did not examine the different PPAs on a case-by-case basis.

57      The third limb of the first plea alleges that the Commission made errors in relation to the relevant period for assessing the PPAs. The applicant submits that the Commission adopted a fundamental change in approach in the contested decision by comparison with the opening decision. Furthermore, in accordance with EU case-law, the measures in the PPA at issue should be assessed from an ex ante perspective. The applicant also set out the reasons why, in its view, the Commission cannot rely on Chapter 3 of Annex IV to the Act of Accession, on point (v) of Article 1(b) of Regulation No 659/1999 or on EU case-law to support its position. It also refers to a Commission decision adopted in relation to State aid.

58      The Court notes that, by this plea, which alleges infringement of Article 87(1) EC and the failure to prove that there was an advantage, the applicant advances a number of criticisms with regard to the contested decision, which it will be appropriate to address once some preliminary observations have been made. Those criticisms concern (i) the relevant period for assessing the PPAs, (ii) the characterisation of the aid as new aid rather than existing aid, (iii) the fact that a measure which does not constitute aid within the meaning of Article 87(1) EC may become aid, (iv) the application of the test of a private operator in a market economy, (v) the failure to examine the PPAs individually and the qualification of the PPAs as a ‘common or generic system’, (vi) the reference to the duration of electricity supply contracts on other markets and (vii) the existence of State aid when, at the recovery stage, there is no sum to repay in respect of that aid.

 Preliminary observations

59      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.

60      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 of the European Communities and members of the Commission of the European Communities, 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.

61      Notwithstanding what is provided for in Article 62(3) of the Europe Agreement including Hungary, the Association Council referred to in paragraph 60 above did not adopt rules for the implementation, in particular, of Article 62(1)(iii). As regards Article 62(2) of that agreement, it refers only to the substantive rules for the assessment of aid and not to the procedural rules, contained in Article 88 EC.

62      Thus, at the time the PPA at issue was concluded, Hungary was required to harmonise only its substantive rules for the assessment of State aid in a manner consistent with Article 87 EC. However, 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 procedural rules, had become mandatory in Hungary. 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.

 The relevant period for assessment of the PPAs

63      Contrary to the applicant’s submissions and in the light of what has been set out above, 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. 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 Commission thus correctly took a period starting on 1 May 2004 into account as the relevant period for assessing the PPAs. The issue of whether the PPA at issue constituted compatible aid as at the date on which it was entered into is therefore irrelevant (see, to that effect, Budapesti Erőmű v Commission, paragraph 62).

64      The Court must thus reject the applicant’s arguments put forward in that regard, including the argument that measures which allegedly constitute State aid must be assessed from an ex ante perspective taking account of the situation prevailing at the date on which the PPAs were entered into. The Court also rejects the argument that, by comparison with the opening decision, the Commission changed its approach in the contested decision with regard to the relevant date for assessment of the aid contained in the PPA at issue.

65      In fact, the applicant merely refers to the opening decision without indicating the passages therein which allegedly show that the Commission had adopted a different approach from the approach ultimately taken in the contested decision. It should be observed that, according to the case-law, an applicant must indicate in its application the specific complaints on which the Court is asked to rule and, at the very least in summary form, the matters of law and of fact on which those complaints are based (Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraph 167; see also, by analogy, Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17) and that, for the purpose of compliance with Article 44(1)(c) of the Rules of Procedure, a reference in the application to matters of law and of fact in an annex to the application is not sufficient (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 94 and 100).

66      In any event, it must be stated that the facts relied on by the applicant are not apparent from the opening decision. In that decision, the Commission expressly mentions the aid covered by the PPAs in 2004 and refers to the 1990s and the conclusion of the PPAs solely for the purpose of showing the economic and legal context in Hungary at that time.

67      Finally, the Court must address the applicant’s submissions (i) that the PPAs played an important role in the process of modernisation and development of the electricity sector in many of the new Member States and (ii) that the PPA at issue was lawfully concluded, in accordance with the ‘single buyer’ model introduced by Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20).

68      As the applicant submits, the Commission acknowledges that a ‘single buyer’ model existed at the time the PPAs were concluded, as was accepted in recital 32 of the contested decision. That model is in fact the one which existed from 1991 to 2002, in the context of the First Law on electric energy. The economic and political context in Hungary in the 1990s and the objective of attracting private investment in order to modernise and develop the Hungarian electricity market do not appear to be in dispute in the present case either, as can be seen from recital 35 of the contested decision. However, the circumstances surrounding the conclusion of the PPAs cannot be taken into account, since the relevant date for assessing the aid contained in the PPAs is, as has been considered above, 1 May 2004.

 The characterisation as new aid rather than existing aid

69      As regards the applicant’s argument that the aid contained in the PPA at issue should have been classified as existing aid and not new aid, it is appropriate to recall the provisions of Chapter 3 of Annex IV to the Act of Accession.

70      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 that annex, 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).

71      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.

72      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.

73      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.

74      In the present case, it is not disputed that the PPA at issue was entered into after 10 December 1994. It does not therefore constitute on that basis existing aid within the meaning of Article 88(1) EC. It is to be noted that the PPA at issue 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. Next it should 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.

75      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 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).

76      The applicant’s arguments challenging the classification as new aid which the Commission applied in the contested decision must therefore be rejected.

 The fact that measures which do not constitute aid within the meaning of Article 87(1) EC may become aid

77      The Commission correctly concluded, in recitals 156 to 173 of the contested decision, that measures which do not constitute aid within the meaning of Article 87(1) EC can subsequently become such, for example as from the date of a State’s accession to the European Union.

78      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 question 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.

79      As the Commission in essence contends, 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.

80      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.

81      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 (Budapesti Erőmű v Commission, paragraph 54). 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).

82      Moreover, 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).

83      The arguments which the applicant has expounded to refute the proposition that a measure which does not constitute aid within the meaning of Article 87(1) EC may subsequently become such aid should thus be rejected. That is the case in particular of the argument based on Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2005] ECR I‑5479 and Alzetta and Others v Commission, to the effect that the assessment, described as ex post, of the aid contained in the PPA at issue (that is to say, the assessment carried out by reference to the date 1 May 2004) was permitted only in respect of the condition concerning distortion of competition and effect on trade, to which Article 87(1) refers.

 Application of the test of a private investor in a market economy

84      As a preliminary point, it must be borne in mind that in order to determine whether a State measure constitutes aid for the purposes of Article 87 EC, it is necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions (Case C‑342/96 Spain v Commission [1999] ECR I‑2459, paragraph 41).

85      To that end, application of the test of a private investor in a market economy entails comparing the way in which the public authorities acted with the way in which a private operator of a comparable size would have acted in the same circumstances. That test is thus satisfied in the situation 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).

86      First, since the Commission did not err in taking the date of Hungary’s accession to the European Union as the relevant date for the assessment of the PPA at issue (Budapesti Erőmű v Commission, paragraph 62), the Court rejects the applicant’s argument that the test of a private investor in a market economy must be analysed by reference to the economic context prevailing at the date of conclusion of the PPAs.

87      Although the Commission Communication to the Member States concerning the application of Articles [81 EC] and [82 EC] and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector (OJ 1993 C 307, p. 3), in particular point 28 thereof, refers to ‘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 in 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 State’s accession to the European Union, 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 date of accession of the State concerned. Moreover, it must be noted, that, as the Commission has rightly contended, the question whether there is an advantage must be assessed not by reference to a single date, but over a whole period, starting on 1 May 2004 and ending on the date of expiry of the PPA at issue. Accordingly, the argument raised by the applicant in this respect and referring, inter alia, to EU case-law must also be rejected.

88      The Court rejects the argument that, in Commission Decision 2009/174/EC of 21 October 2008 on measure C 35/04 implemented by Hungary for Postabank and Takarékpénztár Rt./Erste Bank Hungary Nyrt. (OJ 2009 L 62, p. 14), the Commission employed the test of a private investor in a market economy applying the rule ex ante to a State measure introduced before Hungary’s accession to the European Union.

89      As regards the use, in argument, of decisions on State aid 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, decisions cited by an applicant, which concern specific cases and have no connection with the decision in issue, cannot be relevant for the Court’s assessment (see, to that effect, Joined Cases T‑81/07 to T‑83/07 KG Holding and Others v Commission [2009] ECR II‑2411, paragraph 201).

90      Second, the applicant in essence criticises the Commission’s application of the test of a private operator in a market economy, submitting that the Commission, first, failed to take into account the seller’s obligations under the PPA at issue, focusing on one aspect of the contractual obligations, namely the ‘purchase obligations’, and, second, relied on criteria based purely on hypothetical assumptions, and not on objective and verifiable elements, as required by EU case-law.

91      It should be recalled that the assessment by the Commission of whether a measure satisfies the test of a private operator in a market economy 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 (see Budapesti Erőmű v Commission, paragraph 65 and the case-law cited).

92      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, in particular, 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).

93      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.

94      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.

95      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 stipulated 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).

96      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).

97      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 use of generating capacities.

98      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.

99      It can be seen 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 provided for by the PPAs, do not correspond to usual contracts on European wholesale markets.

100    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.

101    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.

102    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 set in those contracts, 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.

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

104    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 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).

105    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. The Commission must thus be held to have correctly assessed the PPA at issue from the perspective of the private operator in a market economy test.

106    Thus, the Court must reject the applicant’s argument that the Commission focused on one aspect of the contractual obligations, namely ‘purchase obligations’, and deployed criteria based solely on hypothetical assumptions. It is apparent from recital 236 of the contested decision that the Commission considered that the main features of the PPAs — the reservation of electricity generation capacity, the obligation to purchase a minimum off-take and the pricing mechanism covering fixed, capital and variable costs — could not be isolated and assessed separately.

107    The fact, relied on by the applicant, that MVM always purchased more capacity from it than was required under the contractually stipulated minimum guaranteed off-take is irrelevant. Since the minimum off-take obligation imposed on MVM goes beyond standard commercial practices on the European electricity markets and is also combined with an obligation concerning reserved electricity-generation capacity and a pricing mechanism covering fixed, capital and variable costs, the aforementioned fact does not mean that, in the PPA at issue, the structural risk deriving from those features of the contract, including the purchase obligation, does not exist.

108    Lastly, in connection with the applicant’s criticism concerning the application of the test of a private operator in a market economy, it is appropriate to consider a number of submissions made by the applicant in the reply, which turn in essence on MVM’s commercial interest under the PPAs; the Commission disputes those submissions.

109    First, concerning the applicant’s contention that the Commission has not provided concrete evidence that MVM was prevented by the PPA at issue from acting in its own best commercial interests, it must be rejected in the light of the Commission’s analysis when it applied the test of a private operator in a market economy, as explained and approved by the Court.

110    Since the Commission did not err in concluding, in the contested decision, that the combination in the PPAs, including the PPA at issue, of the reservation of electricity-generation capacity, the minimum off-take obligation and pricing mechanisms covering fixed, capital and variable costs, amounted to an advantage for the purposes of Article 87(1) EC, the fact that the Commission has not provided concrete evidence that MVM was prevented by the PPA at issue from acting in its best commercial interests does not appear relevant for the purpose of invalidating the Commission’s analysis in the contested decision.

111    In that regard, the Court must also reject the criticism which the applicant levels at the Commission in its request for a measure of organisation of procedure lodged at the Court Registry on 7 February 2011 and mentioned in paragraph 43 above. In essence, the applicant submits that, in paragraph 14 of the rejoinder, the Commission stated that ‘the comments submitted by MVM in the course of the formal investigation do not indicate that it ever explicitly stated that maintaining the power purchase agreements in force would be in its interests’, when the contested decision makes no mention of the position taken by MVM in the comments it submitted during the formal investigate procedure.

112    In response to a question from the Court at the hearing, the Commission informed the Court that, in the course of the formal investigation procedure, MVM had submitted some brief observations in which it provided explanations concerning, inter alia, market shares and the system of tariff regulation, and that, in those observations, MVM had not indicated that maintaining the PPAs in force would be in its interest. That statement cannot, however, call in question the conclusion reached by the Commission in recital 217 of the contested decision that, structurally, the PPAs provided more guarantees to generators than standard commercial contracts.

113    Second, the Court rejects the applicant’s arguments relating to Government Decree No 183/2002 and criticising, in essence, the Commission’s contention that the applicant had refused to renegotiate the terms of the PPA at issue, which allegedly led to the adoption of that decree, when, in reality, MVM had no commercial reason to enter into renegotiations on the PPA at issue.

114    The Court notes, first of all, that the applicant has not provided any clear evidence in support of its arguments. It merely refers to various reports, one of which is annexed to its pleadings. The document in question is an expert opinion, prepared in Salzburg (Austria), dated 23 November 2004 and entitled ‘Compatibility of the Hungarian system of [PPAs] with EU energy and competition law’. However, it has not provided any specific explanation regarding the content of that report, which runs to around 150 pages. Such an argument therefore cannot succeed in view of the case-law set out in paragraph 65 above.

115    In any event, contrary to what the applicant maintains, it is in fact apparent from the expert opinion that the Hungarian electricity generators, including the applicant, refused to renegotiate the PPAs. In particular, point 57 of the opinion states that, under Government Decree 183/2002, a first round of renegotiations of the PPAs between MVM and the electricity generators took place between 4 and 25 February 2004 but that the generators refused, however, to renegotiate and the first round of negotiations consequently failed.

116    The applicant further submits that, contrary to the Commission’s contention, Government Decree 183/2002 had been introduced to deal with the problem of excessively low end-user regulated prices. Even if that had been in part the case, the fact remains that the applicant does not dispute table 7 in recital 223 of the contested decision, which clearly indicates that prices on the free segment, inter alia in 2004, were lower than prices on the public utility segment. Nor does the applicant state to what extent a possible misreading by the Commission of Government Decree 183/2002 could invalidate the contested decision, which specifically concerns the aid under the PPAs and its compatibility with the common market.

117    In any event, it is apparent from the case-file that the Commission was not required to analyse Government Decree 183/2002 because the Hungarian authorities withdrew the notification of the decree on 13 April 2005. That is also confirmed in recitals 84 to 87 of the contested decision, in which the Commission specifically states that the opening decision concerns the formal investigation procedure on the PPAs only and not on the decree.

118    In the light of the foregoing considerations, the submissions made by the applicant in the reply, which are based, in essence, on MVM’s commercial interests under the PPAs, must be rejected.

 Failure to carry out an individual assessment of the PPAs and classification of the PPAs as a ‘common or generic system’

119    It is appropriate to address the arguments whereby the applicant complains that the Commission, in the contested decision, did not carry out the requisite detailed economic analysis of each power plant’s cost structure and made errors of law in considering the PPAs to be a common or generic system conferring an advantage, without entering into an analysis of the legal and factual context in which each of the PPAs was concluded, including the PPA at issue.

120    In that regard, it should be noted, first, that by those arguments the applicant complains, in essence, that the Commission did not carry out, in formal terms, an individual assessment of the different PPAs and, in particular, of the PPA at issue.

121    It is apparent from the contested decision that the Commission took account of the characteristics of the different PPAs but undertook a common assessment of the PPAs where the latter showed similarities. In that regard, the Court observes, first, that the Commission set out, in recitals 94 to 146 of the contested decision, the comments from interested parties, which had been submitted in the course of the formal investigation procedure, including the comments submitted by the applicant (see recitals 94, 97, 106, 119, 121, 122, 131, 138 to 142, 145 and 146 of the contested decision). In particular, in recital 96 of the decision, the Commission addressed the question of individual assessment of the PPAs stating that some parties had submitted that the PPAs should be assessed individually because of the differences between them. It added that other electricity generators had implicitly made the same request by providing it with details on the exact terms and conditions of their own PPA.

122    Second, in recital 153 of the contested decision, the Commission listed the elements common to all the PPAs assessed, pointing out that the governing principles of the PPAs presented similarities such as to justify their common assessment in a State aid procedure. In recital 154 of the contested decision, the Commission none the less made clear that that comprehensive approach did not prevent it from taking into account the differences that did indeed exist between the PPAs and that the decision thus set out those differences where they were relevant. It is also apparent that the Commission in fact identified and took into account the differences between the various PPAs.

123    Specific factors relating to the different electricity generators and the PPAs which they concluded are expressly mentioned in, inter alia, recital 29 (termination agreements for certain PPAs), recitals 36 to 45 (circumstances in which the PPAs were concluded) and recitals 245 to 247, 249 and 250 (electricity sale prices per generator), as well as in tables 3, 4, 10 and 11 (detailed information relating to PPAs falling within the scope of the contested decision). The decision also makes mention of such specific matters in recital 73 (determination of the costs for which MVM was obliged to pay when it did not purchase the guaranteed minimum off­take from certain operators), recital 216 (contracts for ‘balancing services’), recitals 237 and 266 (importance attached to the use of ‘indigenous resources’ by the Mátrai power plant) and recitals 274 and 302 to 307 (tendering procedure in relation to the PPA relating to the Kispest plant) (Budapesti Erőmű v Commission, paragraphs 129 and 130). So far as the applicant, in particular, is concerned, the Commission expressly addressed arguments raised by it and specifically referred to its individual situation, as can be seen from, inter alia, recitals 278, 280 and 310 of the contested decision.

124    Since the specificities of the different PPAs were taken into account where they were relevant, the applicant has no grounds for complaining that the Commission did not undertake an individual assessment of the PPAs in the contested decision. That being so, the Court must also reject the applicant’s argument that the Commission’s assessment was contrary to the principle of sound administration, which requires the Commission to conduct a diligent and impartial examination of alleged State aid measures. In any event, the applicant, apart from complaining that the Commission undertook a common assessment of the PPAs, has put forward nothing which supports that argument.

125    Second, by its argument, the applicant claims that there are errors of law in so far as the Commission considered the PPAs to be a ‘common or generic system’, whilst the PPA at issue is a commercial contract, negotiated at arm’s length with MVM.

126    That line of argument does not hold. It is undisputed that there are similarities between the PPAs inasmuch as they are based on an ‘energy’ component and a ‘capacity’ component. As the Commission correctly stated in recital 153 of the contested decision, each PPA entails a purchase obligation for MVM, for a period covering a substantial part of the lifetime of the power plants, as regards reserved capacities and a guaranteed quantity, with a pricing mechanism allowing the generators to cover their fixed and variable costs.

127    As the Commission rightly submits, the fact that those elements confer an advantage on the electricity generators and that that advantage is common to all the PPAs, with the consequence that a common assessment of the latter may be undertaken, does not mean that the PPAs are a ‘common or generic system’ or even that the Commission regarded them as such. Although the similarities between the PPAs led the Commission to undertake what is to a large extent an overall assessment of them, it is apparent that the Commission none the less did not treat the PPAs — contrary to the applicant’s contention — as a ‘common or generic system’, an analysis of the Commission’s assessment showing moreover, as has been explained in the preceding paragraphs, that it also took into account the differences between them.

128    For those reasons, the applicant has no grounds for maintaining that the Commission erroneously considered the PPAs as a ‘common or generic system’ and that it erred in law in that regard.

 The reference to the duration of power delivery contracts on other markets

129    As regards the applicant’s argument concerning the duration of power delivery contracts on other markets and challenging the contested decision in this regard by relying inter alia on the Commission’s decision of 11 October 2007 in Case COMP/B-1/37966, Distrigaz, a summary of which is published (OJ 2008 C 9, p. 8), it should be rejected. It is apparent from recital 200 of the contested decision, that the Commission, relying on its sectoral inquiry which resulted in the 2007 Commission report (paragraph 95 above), merely stated that, on forward markets, the duration of standardised forward contracts did not exceed six years, also pointing out, in recitals 207 to 213, that those contracts entailed a much higher level of risk for generators than the PPAs. That description of commercial practices in the European electricity sector was given in the context of the assessment of whether the PPAs conferred an advantage. For the purposes of an argument that that six-year period was not an appropriate reference period, the applicant cannot, in the light of the case-law set out in paragraph 89 above, rely on the Distrigaz decision.

130    Furthermore, it should be observed that the Commission Decision of 11 October 2007 relating to a proceeding pursuant to Article 82 EC, which concerns the Belgian gas market, prima facie does not seem relevant to a case of State aid on the Hungarian electricity market and that the applicant merely refers to that decision without providing any explanation in support of its argument.

131    The applicant’s contentions relating to the duration of power delivery contracts on other markets must thus be rejected as well. That is the case in particular of the contention that, if the relevant period for the assessment of the PPAs was to start on 1 May 2004 and State aid would become possible only at the end of a six-year period, then the Commission should have focused its examination exclusively on advantages arising after 1 May 2010. In that regard, the applicant misinterprets the reference made by the Commission to that six-year contractual reference period and ignores the Commission’s essential objection to the PPAs, which is not related solely to their long duration, but also to other elements, such as the pricing mechanisms.

 The existence of State aid when, at the stage of recovery, there is no sum to be paid back in respect of that aid

132    In its written observations lodged at the Court Registry on 19 February 2013, the applicant submitted that following commencement of the present action before the Court, application of the calculation method, in connection with the implementation of the contested decision, had resulted in it having no sum to repay. According to the applicant, such a circumstance calls into question the significance of any advantage conferred by the PPA at issue and thus the very existence of any State aid for the purposes of Article 87(1) EC.

133    The applicant maintained its position at the hearing. In that regard, noting that in fact there was no amount for the applicant to repay following application of the method set out in the contested decision, the Commission responded that, in its view, it was necessary to distinguish the principle of the actual existence of State aid, for the purposes of Article 87(1) EC, from the recovery of State aid, which may result in the situation in which the applicant finds itself in the present case.

134    The Court recalls that it is settled case-law that the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (Case C‑276/02 Spain v Commission [2004] ECR I‑8091, paragraph 31, and Case T‑62/08 ThyssenKrupp Acciai Speciali Terni v Commission [2010] ECR II‑3229, paragraph 248).

135    Furthermore, according to well-established case-law, 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 to work out that amount itself, without overmuch difficulty (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).

136    Moreover, the recovery of aid which has been declared incompatible with the common market is to be carried out in accordance with the relevant provisions and procedures laid down by national law (Case C‑382/99 Netherlands v Commission [2002] ECR I‑5163, paragraph 91, and Case C‑403/10 P Mediaset v Commission [2011] ECR, paragraph 126; see also, to that effect, ThyssenKrupp Acciai Speciali Terni v Commission, paragraph 251). Furthermore, disputes arising in connection with the enforcement of recovery are a matter for the national court alone (see Case T‑354/99 Kuwait Petroleum (Nederland) v Commission [2006] ECR II‑1475, paragraph 68, and ThyssenKrupp Acciai Speciali Terni v Commission, paragraph 251).

137    Lastly, the obligation on a Member State to calculate the exact amount of aid to be recovered — particularly where that calculation is dependent on information which that Member State has not provided to the Commission — forms part of the more general reciprocal obligation incumbent upon the Commission and the Member States to cooperate in good faith in the implementation of Treaty rules concerning State aid (Netherlands v Commission, paragraph 91, and Mediaset v Commission, paragraph 126; ThyssenKrupp Acciai Speciali Terni v Commission, paragraph 250).

138    Concerning the calculation of the amount to be repaid, it is common ground that the Commission did not itself calculate the amount of aid which each of the generators was to repay, but decided, in accordance with the case-law, to set apart a section of the contested decision, namely recitals 442 to 465, for the recovery method in order to provide guidance enabling the Hungarian authorities to calculate the amount to be repaid.

139    In the present case, as the Commission in essence pointed out in recital 444 of the contested decision, calculating the amount to be recovered was complex. In those circumstances, the approach taken by the Commission, described in paragraph 138 above, can only be endorsed.

140    It must be noted that it was in the context of implementing the contested decision and applying the method for calculating the amount to be repaid that the Hungarian authorities concluded that there was no sum for the applicant to repay.

141    That circumstance does not, however, undermine the assessment made by the Commission in the contested decision, which has been endorsed by the Court in the present judgment and which is based on the characteristics of the PPAs, including the PPA at issue, which combine an obligation concerning reserved generation capacity with a minimum guaranteed off-take of electricity and a pricing mechanism covering fixed, capital and variable costs.

142    It follows that even if application of the recovery method set down in the contested decision results, for the period from 1 May 2004 to the actual date of termination of the PPAs, in the applicant having no amount to repay, that cannot in any case affect the validity of the contested decision as regards the actual principle that the PPA at issue confers an advantage and accordingly that there is State aid within the meaning of Article 87(1) EC, but only the procedures for recovering the aid.

143    Accordingly, as the Commission rightly submitted, a distinction must be drawn between the existence in principle of State aid which is incompatible with the common market and recovery of that aid, which may result in the beneficiary having no amount to repay in respect of that aid.

144    It follows that the Commission did not make either manifest errors of assessment or errors of law in concluding that an advantage existed for the purposes of Article 87(1) EC. The first plea must therefore be rejected as unfounded.

145    The complaints raised by the applicant in the context of the third plea also fall to be examined.

146    In the context of the third plea, the applicant maintains that, even if the Commission was correct to take 1 May 2004 as the starting date of the relevant period for the assessment of the PPAs, it none the less made manifest errors of assessment in relation to the application of the criteria laid down in Article 87(1) EC. In support of this plea, it raises a number of complaints concerning (i) manifest error of assessment with respect to the concept of economic advantage, (ii) manifest error of assessment with respect to the concept of selectivity, (iii) manifest error in relation to the criterion of State resources and imputability to the State and (iv) manifest error of assessment in relation to the requirement for an effect on trade.

 The complaint concerning manifest error of assessment with respect to the concept of economic advantage

147    As regards, first of all, the applicant’s arguments that (i) MVM behaved as a normal market operator would have done, (ii) the PPA at issue fairly allocated risk between two commercial parties and (iii) the Commission’s assessment, which was based on the test of how MVM would have acted in May 2004 in the absence of the PPA, was clearly wrong in the light of the economic and political context in Hungary in the 1990s, it suffices, to reject them, to refer to the reasoning set out in the context of the first plea.

148    The Court also rejects the applicant’s argument that it was in MVM’s interests to support the applicant in the modernisation of the Tisza II plant. As the Commission contends, it is apparent from the case-file, in particular from the comments which the applicant submitted on 13 February 2006 in the course of the administrative procedure that the retrofit project for that power plant resulted from a commitment made in the context of the privatisation agreement, and was not part of the applicant’s obligations under the PPA at issue.

149    In addition, the Court must reject the applicant’s arguments according to which (i) as the Commission itself found in its 2007 report (paragraph 95 above), conclusion of the PPAs was a means of preventing generators from withdrawing capacity from the market in order to increase prices, (ii) the Commission had failed to examine whether a competitive market actually existed in Hungary as of 1 May 2004 and (iii) the Commission had also failed to analyse the nature and scope of the alleged advantage and had conflated the concept of advantage with the concept of distortion of competition.

150    First of all, although, as the applicant submits, it is not disputed that the Commission found, in the 2007 sectoral inquiry, that generators might be able to withdraw capacity from the market in order to increase prices, the applicant’s argument that that finding implied that the conclusion of PPAs, such as the PPA at issue, was a reasonable way of guarding against the risk of the generators withdrawing capacity cannot succeed.

151    In that regard, it should be observed that, as is apparent from the analysis in paragraphs 93 to 107 above, in assessing whether an advantage existed and in the application of the test of the private operator in a market economy, the Commission drew on the report which had resulted from the 2007 sectoral inquiry and thus identified and described the main practices of commercial operators on European electricity markets and assessed whether the PPAs were consistent with those practices. Following a full analysis, the Commission concluded that, structurally, the PPAs provided more guarantees to generators, who bore many fewer risks than under standard commercial contracts. The Commission then drew attention to the foreseeable consequences of the PPAs for the public authorities and correctly stated, inter alia, that under the PPAs those authorities had no assurance concerning the level of price that would have to be paid for electricity over that period because the PPAs did not provide hedging against risks of price fluctuations, which were due in particular from fluctuation in fuel costs.

152    Against that background the Commission, correctly, concluded that there was an advantage for the purposes of Article 87(1) EC and made no manifest error of assessment in that regard.

153    Next, contrary to the applicant’s contention, the Commission took into account the fact that there was a dual system on the Hungarian electricity market, namely the coexistence until 1 January 2008 of a public utility sector and a competitive sector. In that regard, it is undisputed that the Commission took account of that dual system when describing the Hungarian electricity market and carrying out its analysis, as can be seen from recitals 23, 33, 62 and 218 to 234 of the contested decision.

154    Finally, there is no ground for the applicant’s claim that the Commission failed to examine the nature and scope of the alleged advantage and conflated the concept of advantage with the concept of distortion of competition.

155    As has previously been stated in the Court’s consideration of the first plea, the Commission clearly and correctly concluded that an advantage existed for the purposes of Article 87(1) EC. The fact, relied on by the applicant, (i) that MVM purchased more than the minimum capacity provided for under the PPA at issue and (ii) that the Commission has not established that MVM was required to pay higher prices under the PPA at issue than it would have paid if that PPA had not existed is irrelevant, since, as stated in paragraph 107 above, that fact does not mean that the structural risk associated with the purchase obligation, the capacity reservation and the pricing mechanism provided for by the PPA at issue does not exist. Moreover, the applicant’s reading of recital 239 of the contested decision, to which it refers in support of its argument, is incorrect. It is clear from recital 239 that the Commission stated that the pricing mechanism was not the only element to be taken into account for the purpose of determining whether an advantage existed in the present case. It is the combination of all the features of the PPAs which, by guaranteeing the return on investment in the assets and shielding the generators from commercial risks, constitutes the advantage conferred by the PPAs.

156    Likewise, contrary to the applicant’s claims, the Commission did not conflate the concept of advantage with that of distortion of competition. After demonstrating in recitals 174 to 276 of the contested decision that the electricity generators enjoyed an advantage, it went on, inter alia, to examine the criterion concerning distortion of competition in recitals 319 to 339 of the contested decision. It is true that in the course of that examination it took account of the dual system on the electricity market, in particular in recitals 324 to 326 of the decision, and found, in recital 333 thereof, that factors other than the PPAs (legislation, limited access to cross-border capacities, price evolution on international energy markets, etc.) influenced competition and trade. However, that does not mean that the Commission has, as the applicant maintains, conflated the two separate criteria consisting in the existence of an advantage and a distortion of competition.

157    Since the arguments concerning a manifest error of assessment with respect to the concept of economic advantage are unfounded, this complaint must be rejected.

 The complaint concerning a manifest error of assessment with respect to the concept of selectivity

158    The applicant submits that the legal and factual situation of generators which were required by law to have a PPA in place until 1 January 2008 cannot be regarded as comparable to the situation of undertakings to which that requirement did not apply — that is to say, traders and importers. At the hearing, it explained why it took the view that the PPAs cannot be regarded as selective for the purposes of Article 87(1) EC.

159    It should be recalled that the specific nature of a State measure, namely its selective application, constitutes one of the characteristics of State aid within the meaning of Article 87(1) EC. In that regard, it is necessary to determine whether or not the measure in question entails advantages accruing exclusively to certain undertakings or certain sectors of activity (see Case T‑55/99 CETM v Commission [2000] ECR II‑3207, paragraph 39 and the case-law cited).

160    More specifically, it is settled case-law that Article 87(1) EC requires it to be determined whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by the scheme in question, are in a comparable legal and factual situation (see, to that effect, Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I‑8365, paragraph 41; Case C‑308/01 GIL Insurance and Others [2004] ECR I‑4777, paragraph 68; and Case C‑172/03 Heiser [2005] ECR I‑1627, paragraph 40).

161    It should be observed that, in recital 278 of the contested decision, the Commission expressly noted that, in its comments, the applicant had argued that the PPAs were not selective because long-term agreements existed in the entire electricity sector: between MVM and the generators, between MVM and the distribution companies as well as for imports.

162    In response, the Commission, in recitals 277 and 279 of the contested decision, stated that the PPAs had been concluded with a number of undertakings in a certain sector. It also stated that the Hungarian authorities had observed that significant power plants and blocks of power plants were selling electricity on the free market without PPAs or guaranteed minimum off-take.

163    The Commission thus stated, in recital 280 of the contested decision, that there were important power plants and blocks of power plants operating without PPAs. It even added that the applicant itself owned two power plants which were not covered by a PPA.

164    Furthermore, in recital 281 of that decision, the Commission, referring to the judgment in CETM v Commission, (paragraphs 40 and 52), rightly observed that the fact that aid is not aimed at one or more specific beneficiaries defined in advance, but that the beneficiaries are identified pursuant to a number of objective criteria does not mean that the measure in question does not confer a selective advantage on its beneficiaries. It also stated that the procedure for identifying the beneficiaries did not affect the fact that, because of its nature, the measure was to be regarded as State aid.

165    It follows that the Commission did not make a manifest error of assessment with respect to the concept of selectivity and this complaint must therefore be rejected.

 The complaint concerning manifest error in relation to the criterion of State resources and imputability to the State

166    The applicant submits that the Commission has not demonstrated that as of 1 May 2004, the aid contained in the PPA at issue could be attributed to the Hungarian State. In that regard, it maintains that the Commission failed to take account of the fact that the pricing mechanism in the PPA at issue had been negotiated and amended by itself and MVM and that it bore no relation to the previous system of State-imposed price regulation. In addition, the Commission wrongly relied on universal goals such as security of supply and environmental considerations, which are common to all public authorities on the electricity market.

167    It follows from the case-law of the Court of Justice that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 87(1) EC. The distinction made in that provision between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (see Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 58 and the case­law cited).

168    Furthermore, even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. A public undertaking may act with more or less independence, according to the degree of autonomy left to it by the State. Therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures (Case C‑482/99 France v Commission [2002] ECR I‑4397, paragraph 52).

169    In that regard, it cannot be required that it be demonstrated, on the basis of a precise inquiry, that in the particular case the public authorities specifically incited the public undertaking to take the aid measures in question. For those reasons, it must be accepted that the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken (France v Commission, paragraphs 53 and 55).

170    According to the same judgment, certain indicators might, in some circumstances, be relevant in concluding that an aid measure taken by a public undertaking is attributable to the State, such as, in particular, its integration into the structures of the public administration, the nature of its activities and the exercise of those activities on the market in normal conditions of competition with private operators, the legal status of the undertaking (in the sense of its being subject to public law or ordinary company law), the intensity of the supervision exercised by the public authorities over the management of the undertaking, or any other indicator showing, in the particular case, an involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains (France v Commission, paragraph 56).

171    It should be noted, first of all, that the Hungarian authorities never maintained, in the course of the formal investigation procedure, that the PPAs were not attributable to the Hungarian State and thus did not entail a transfer of State resources.

172    In recitals 291 to 316 of the contested decision, the Commission undertook a detailed analysis of the question of imputability to the State.

173    It is true that in the course of its analysis, the Commission stated, in particular in recital 296 of the contested decision, that the PPAs constituted the tool chosen by the Hungarian government to ensure security of supply and other governmental objectives, like the modernisation of the energy sector with particular regard to the prevailing standards of environmental protection, and the necessary restructuring of the sector. However, contrary to what is suggested by the applicant, the Commission did not rely on the policy and economic intentions of the Member State to prove imputability, but merely mentioned them in order to explain the historic and legal context in which the PPAs were concluded. The Commission cannot therefore be regarded as having made a manifest error of assessment in that respect.

174    As regards the Commission’s assessment resulting in a finding of imputability to the State, in particular in relation to the price-setting mechanism in the PPA at issue, the Commission expressly drew attention, in recital 310 of the contested decision, to the fact that, in the observations it submitted during the administrative procedure, the applicant had argued that, after the period of price regulation (that is to say, after 1 January 2004 with the exception of the new price regulation in 2007), the prices set under the PPAs were not imputable to the State but were the result of negotiations between the applicant and MVM.

175    Taking the applicant’s argument in that regard into account, the Commission acknowledged, in recital 311 of the contested decision, that the exact amount of resources transferred to the beneficiaries did not solely depend on the clauses set out in the PPAs, but also on periodic bilateral negotiations conducted by MVM with the generators. In that regard, it stated that PPAs offered a certain latitude to the parties to negotiate the quantities of electricity actually purchased by MVM as well as certain components of the price, notably with respect to the calculation of the capacity fees, which depended on a number of factors and necessitated periodic adjustments.

176    However, the Commission added that negotiations on purchased quantities could never lead to the purchase of quantities below the minimum guaranteed off-take established in the PPAs and that negotiations on prices could be conducted only in the framework of the price-setting mechanisms laid down in the PPAs. It thus concluded that the price negotiations thus did not call in question the principle of the purchase obligation covering justified costs and that the provision for the reservation of capacities and a payment for those capacities entailed in itself a transfer of State resources to the beneficiaries, independently of any periodic negotiations between MVM and the generators.

177    Accordingly, the Commission, in the course of its examination, took account of the bilateral negotiations between the applicant and MVM regarding the price formula in the PPA at issue. In doing so, it none the less reached the conclusion that neither the price negotiations nor the amendments of the PPAs had affected the underlying principles governing the PPAs, namely the existence of a purchase obligation intended to guarantee a return on investment, together with the principle of covering fixed and variable costs.

178    Furthermore, contrary to the applicant’s contention and in keeping with what has been stated above, MVM’s behaviour cannot be regarded as having been consistent, objectively, with that of a private market operator.

179    It follows that this complaint, concerning manifest error of assessment in relation to the criterion of State resources and imputability to the State, must be rejected.

 The complaint concerning manifest error of assessment in relation to the requirement for an effect on trade between Member States and a distortion of competition

180    The applicant submits that, as Hungary was not a Member State at the time of the conclusion of the PPAs, it was impossible for the Commission to conclude that contracts entered into between MVM and members of international energy groups could affect trade between Member States. It also submits that, as regards the period following Hungary’s accession to the European Union, the Commission considered that exports and imports had allegedly been hampered by the very existence of PPAs but failed to establish a causal link between the alleged selective advantage and its effect on trade. Finally, the applicant maintains that the Commission clearly failed to establish that the PPA at issue secured in any financial advantage whatsoever which resulted in a distortion of competition.

181    The Court observes that, for the purpose of categorising a national measure as State aid, it is not necessary to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, it being necessary only to examine whether that aid is liable to affect such trade and distort competition (see Budapesti Erőmű v Commission, paragraph 95 and the case-law cited).

182    Moreover, if the Commission correctly explained how the aid in question was capable of having such effects, it was not required to carry out an economic analysis of the actual situation on the relevant market, of the market share of the undertakings in receipt of the aid, of the position of competing undertakings and of the trade flows in respect of the goods or services in question between the Member States (see Budapesti Erőmű v Commission, paragraph 96 and the case-law cited).

183    Furthermore, the fact that an economic sector has been liberalised at European Union level, as in the present case, may serve to indicate that the aid has a real or potential effect on competition and affects trade between Member States (see Budapesti Erőmű v Commission, paragraph 97 and the case-law cited).

184    As a preliminary point, since the relevant period for the assessment of the PPAs started on 1 May 2004, the applicant’s arguments which rely on the period preceding that date for the purpose of challenging the validity of the contested decision are irrelevant. In any event, it is undisputed that the decision — and thus its analysis of the condition relating to distortion of competition — concern the period of assessment, so that the Commission, clearly, did not conclude that there was a distortion of competition in relation to the earlier period.

185    Next, the Court notes that, in recitals 319 to 338 of the contested decision, the Commission addressed the question of distortion of competition and an effect on trade between Member States.

186    In that regard, the Commission observed that, once the electricity market was opened up to competition and, in particular, once Directive 96/92 entered into force, measures favouring undertakings in the energy sector in one Member State were capable of impeding the ability of undertakings from other Member States to export electricity to the first Member State, or of favouring the export of electricity from that State to other Member States (recitals 319 and 320 of the contested decision). The Commission also stated, rightly, that that was particularly true in the case of Hungary, given its centrally-located geographic position in Europe (recital 321 of the contested decision).

187    The Commission found, and the applicant has not denied, that, in the years following Hungary’s accession to the European Union, approximately 60% of the Hungarian generation capacity was contracted by MVM under PPAs (recital 322 of the contested decision) and that, accordingly, 60% of all capacities was linked to one undertaking (MVM) with a purchase guarantee (recital 325 of the contested decision). It also pointed out that, because of the lack of available capacities on the free market, owing to the substantial volumes of capacities reserved under the PPAs, there were obstacles to eligible end users choosing the free market (recitals 324 and 326 of the contested decision).

188    The Commission then noted that the reserved capacities were a barrier to new generators entering the wholesale market and that the PPAs led to foreclosure of the competitive market by, inter alia, limiting the scope for eligible customers to switch to the free market (recitals 325 and 326 of the contested decision).

189    Furthermore, in recitals 327 and 328 of the contested decision, the Commission, relying inter alia on a study by the Regional Centre for Energy Policy Research evaluating the impact which termination of the PPAs would have on wholesale electricity prices in Hungary, published in November 2006, explained the reasons why the PPAs led to higher prices on the wholesale market than those which could be achieved in the absence of PPAs. It also referred to its 2007 report to assess the effects of PPAs on competition and trade (recital 329 of the contested decision). It thus noted that those various studies all concluded that the PPAs distorted competition and might affect trade between Member States (recital 330 of the contested decision).

190    Last, the Commission stated that the reserved capacities, the guaranteed off-take and the pricing mechanism provided for by the PPAs shielded the generators from the typical commercial risks associated with operating power plants and that as a result conditions of competition were distorted on the electricity market (recital 334 of the contested decision).

191    In the light of recitals 319 to 338 of the contested decision, it is abundantly clear that, contrary to the applicant’s contention, the Commission, in its analysis, took as its starting point the characteristics of the PPAs, which had previously been classified as an advantage owing not only to the reserved capacities but also to the minimum off-take obligation and the pricing mechanism, in order to explain the degree to which the advantage resulting from the PPAs had consequences and effects for the electricity market. It thus clearly stated how the PPAs led to a distortion of competition.

192    The Commission thus established a causal link between the advantage conferred by the PPAs and the distortion of competition on the electricity market.

193    Furthermore, as can be seen from paragraph 156 above, the Commission, in recital 333 of the contested decision, took account in its analysis of the fact that other factors (legislation, limited access to cross-border capacities, significant influence of price evolution on international energy markets etc.) affected competition and trade. The fact that it took those factors into account did not, however, have any effect on its view that the PPAs appreciably affected competition and trade.

194    The applicant, referring to the case-law of the European Union (Case T‑93/02 Confédération nationale du Crédit mutuel v Commission [2005] ECR II‑143, paragraph 82), also complains that the Commission did not make a definitive assessment of the advantages conferred by the PPA at issue or of the impact on trade between Member States.

195    However, despite the fact that the applicant gives no explanation of the reasons why it does not regard the Commission’s assessment in the contested decision as definitive, it can be seen from the judgment mentioned by the applicant, in particular from paragraph 82 to which it specifically refers, that the Court considered it appropriate, in the context of an investigation of a complex system made up of various State measures, that the Commission should establish provisionally, when it opens the procedure, whether that system as a whole is capable of affecting trade. However, again according to the Court, in the final decision, the Commission is required to replace that provisional assessment with a definitive assessment of the effects on trade between Member States of the measures classified definitively as aid. In that judgment, it was held that that was even more the case when the final decision classified as aid only some of the measures covered by the investigation.

196    In the present case, as is clear from the contested decision, from the examination in this judgment of the first plea and from paragraphs 185 to 192 above, the Commission must be found to have clearly and definitively identified the advantages conferred by the PPA at issue and to have made a definitive, rather than a provisional, assessment of their impact on competition.

197    In addition, contrary to the applicant’s claim, in the light of paragraph 103 above, it is also apparent from the contested decision that the Commission proved the existence of ‘structural’ risks or advantages.

198    The Commission did not therefore make a manifest error of assessment in proving that the PPA at issue conferred an advantage which led to a distortion of competition and an impact on trade between Member States.

199    The Court therefore rejects the arguments put forward by the applicant in this respect and, consequently, this complaint must also be rejected.

200    Accordingly, the third plea, alleging that the Commission made manifest errors of assessment in relation to the application of the cumulative criteria laid down in Article 87(1) EC, must be rejected.

 The second plea in law, alleging infringement of fundamental principles of EU law

201    In support of the second plea, the applicant puts forward a number of complaints alleging (i) infringement of the rights of the defence, (ii) infringement of the principle of legal certainty, (iii) infringement of the principle of the protection of legitimate expectations and (iv) infringement of the principles of neutrality and equal treatment.

202    The complaints alleging infringement of the principle of legal certainty and infringement of the principle of the protection of legitimate expectations should be considered together.

 The complaint concerning an infringement of the rights of the defence

203    The applicant maintains that the Commission did not give it a fair hearing since the opening decision gave no indication of (i) the reference period, beginning on 1 May 2004, (ii) the decision to treat the PPAs as a generic system, or (iii) the choice of benchmark to quantify the alleged aid. It also complains that it was afforded only a right to submit observations. Consequently, there are infringements of Article 88(2) EC, Article 6(1) of Regulation No 659/1999, Article 41 of the Charter of Fundamental Rights and of EU case-law.

204    It should be recalled at the outset that, according to settled case-law, observance of the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law. That principle requires that a person against whom the Commission has initiated administrative proceedings must have been afforded the opportunity during those proceedings to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of EU law (Case T‑65/96 Kish Glass v Commission [2000] ECR II‑1885, paragraph 32, and Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, paragraph 121).

205    Furthermore, it follows from Article 41 of the Charter of Fundamental Rights of the European Union that the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.

206    However, inasmuch as the present complaint concerns an infringement of the rights of the defence, it must be viewed in the light of the right which interested parties have under Article 88(2) EC to submit comments during the investigation stage referred to in that provision and not in the light of the rights of the defence as such, which only States, in their capacity as parties to State aid investigation procedures, are afforded (see, to that effect, Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraphs 80 to 83).

207    Indeed, during the investigation stage under Article 88(2) EC, interested parties like the applicant in the present case — far from enjoying the same rights of defence as those which persons against whom a procedure has been opened are recognised as having — have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (judgment of 20 October 2011 in Case T‑579/08 Eridania Sadam v Commission, not published in the ECR, paragraph 81).

208    It is also settled case-law that, when the Commission decides to initiate the formal investigation procedure, it is permissible for its decision opening the procedure merely to summarise the relevant issues of fact and law, to include a provisional assessment as to the aid character of the State measure in question and to set out its doubts as to the measure’s compatibility with the common market (Joined Cases T‑269/99, T‑271/99 and T‑272/99 Diputación Foral de Guipúzcoa and Others v Commission [2002] ECR II‑4217, paragraph 104, and 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 138).

209    A decision to initiate the procedure must thus give interested parties the opportunity effectively to participate in the formal investigation procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the interested parties to be aware of the reasoning which led the Commission to conclude provisionally that the measure in issue might constitute new aid incompatible with the common market (Joined Cases T‑195/01 and T‑207/01 Government of Gibraltar v Commission [2002] ECR II‑2309, paragraph 138, and Diputación Foral de Guipúzcoa and Others v Commission, paragraph 105).

210    Article 20(1) of Regulation No 659/1999 provides that any interested party may submit comments following a Commission decision to initiate a formal investigation procedure. In the procedure for reviewing State aid, interested parties other than the Member State responsible for granting the aid essentially play the role of a source of information for the Commission (see Case T‑198/01 Technische Glaswerke Ilmenau v Commission [2004] ECR II‑2717, paragraphs 191 and 192 and the case-law cited).

211    In the present case, it is common ground that, following publication of the letter informing Hungary of the decision to initiate the procedure, together with a summary of that decision calling on interested parties to submit their comments, the Commission received comments from Hungarian electricity generators, including the applicant. The latter submitted its comments by letters of 13 and 14 February 2006, 14 December 2006 and 5 March 2008.

212    In the opening decision, contrary to what is maintained by the applicant, the Commission explained sufficiently clearly the reasons on which it based its provisional conclusion that the PPAs conferred aid within the meaning of Article 87(1) EC on the generators and that the aid was incompatible with the common market.

213    In that regard, after describing inter alia the historic background, the characteristics of the PPAs and the development of the way the Hungarian electricity market was structured, the Commission carried out a provisional assessment of the aid contained in the PPAs in the light of the criteria laid down in Article 87(1) EC comprising the definition of State aid, before finally examining the compatibility of the aid with the common market. In that context, it expressly cited the aid covered by the PPAs in 2004 and referred to the 1990s and the conclusion of the PPAs solely for the purpose of illustrating the economic and legal context in Hungary during that period.

214    More specifically, in the assessment of the aid contained in the PPAs, the Commission, undertaking an analysis in the light of Chapter 3 of Annex IV to the Act of Accession, clearly stated that the opening decision concerned only the PPAs that were in force at the date of Hungary’s accession to the European Union (on and after 1 May 2004). Issue cannot be taken with the Commission for not having been more specific about the relevant period for the assessment of the PPAs or for not having given information about, inter alia, the choice of benchmarks that would ultimately be used in the contested decision, since the applicant had only a right to be heard and to be involved in the procedure to the extent appropriate in the light of the circumstances of the case as well as a right to be made aware of the preliminary reasoning adopted.

215    In view of the foregoing considerations, it must be held that the applicant’s rights of defence have been observed.

216    As to the applicant’s argument that the Commission did not state in the opening decision that it would treat the PPAs as a generic system, it must also be rejected, since — as is apparent from the analysis undertaken in the context of the first plea — the Commission also took account in the contested decision of the specificities of each PPA, where that was relevant.

217    In any event, for such an infringement of the rights of the defence to result in annulment, it also has to be established that, had it not been for such an irregularity, the outcome of the procedure might have been different (see Case C‑288/96 Germany v Commission [2000] ECR I‑8237, paragraph 101 and the case-law cited, and ThyssenKrupp Acciai Speciali Terni v Commission, paragraph 189). That is not the case here, since, as is clear from the analysis carried out in the context of the first plea, the Commission correctly undertook an assessment of the aid contained in the PPAs in the light of the four conditions laid down in Article 87(1) EC taking a period starting on 1 May 2004 as the relevant period for assessment of the PPAs.

218    Accordingly, the applicant’s complaint that there was an infringement of the rights of the defence must be rejected.

 The complaint concerning infringement of the principle of legal certainty and infringement of the principle of the protection of legitimate expectations

219    According to the applicant, the Commission infringed Articles 87 EC and 88 EC and the principle of legal certainty in applying an ex post assessment to the measure in question. It submits that the Commission puts no justification forward for its departure from the established rule of ex ante assessment. Moreover, the applicant alleges that the Commission infringed the principle of the protection of legitimate expectations in maintaining that the PPA at issue constituted State aid after Hungary’s accession to the European Union on 1 May 2004, that the aid had to be recovered, and that the PPA at issue had to be terminated effectively by 4 December 2008. The applicant refers to EU case-law and submits inter alia, in that regard, that its privatisation did not involve State aid and that the economic advantage allegedly involved in the PPA at issue should be considered to have been repaid through its acquisition of the undertaking and the power plant at market price in 1996. It also makes some observations concerning clause 3.7 of the 2001 agreement amending the PPA at issue.

220    It should be borne in mind 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 case­law 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, point 126).

221    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).

222    First, the applicant has not claimed that it ever received any assurance whatsoever as to the nature of the aid contained in the PPA at issue, so that, notwithstanding the observations made by the Commission in relation to Clause 3.7 of the 2001 agreement amending the PPA at issue and those advanced by the applicant in reply, there can be no infringement of the principle of the protection of legitimate expectations in that respect.

223    Second, as has already been stated above in the examination of the first plea, in the case of a State’s accession 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 rules and the procedural rules of EU law on State aid, are clear and precise.

224    Furthermore, as has been stated in paragraph 63 above, the Commission did not make an error in taking the period starting on 1 May 2004 into account for the assessment of the aid contained in the PPAs. Therefore, the applicant’s argument criticising that assessment, which it classifies as ex post, of the measure in the PPA at issue, in order to plead infringement of the principle of legal certainty, cannot succeed. For the same reasons, the fact that Annex IV to the Act of Accession applies solely to ‘aid measures’, whilst the Commission, so the applicant argues, failed to confirm in the contested decision that the PPAs amounted to aid before the date of accession, is not such, contrary to the applicant’s submission, as to give rise to an infringement of the principle of legal certainty.

225    The Court must also reject the applicant’s arguments relying on EU case-law (Case T‑25/04 González y Díez v Commission [2007] ECR II‑3121), whereby it submits that, in order to comply with the principle of legal certainty, the substantive rules of EU law on State aid cannot be applied retroactively, as those rules cannot be applied to situations which arose before their entry into force. It must be recalled that the acquis communautaire and the State aid rules which form part of it became mandatory in Hungary from 1 May 2004. Without prejudice to the abovementioned case-law, which concerns definitively established legal situations, the principle of legal certainty does not prevent the Commission from finding, in the present case, that, from 1 May 2004 and for the ensuing period during which the applicant received the benefit thereof, there existed incompatible aid under the PPA at issue, the aid in that PPA deriving directly from the characteristics of the PPA and from the structure that it put in place, which continued to be applied after 1 May 2004.

226    Finally, for the same reason — the fact that the relevant period for the assessment of the PPAs began on 1 May 2004 — the applicant’s arguments based on the circumstances of the privatisation undertaken in the 1990s cannot succeed. 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 on the applicant by the PPAs relate solely to a period starting on 1 May 2004, that is to say, nearly a decade after the privatisation procedure. Thus, the Court finds irrelevant the applicant’s argument that its privatisation entailed no State aid and that the alleged economic advantage contained in its PPA has to be regarded as having been repaid through its purchase of the ‘[public undertaking in question] and the Tisza II plant at market price in 1996’.

227    Even if, as the applicant maintains, the privatisation procedure was conducted in accordance with inter alia the XXIIIrd Competition Report of 1993 which was made available by the Commission on 5 May 1994 (COM(94) 161 final), and despite the applicant’s reference to Article 6 of Directive 96/92 concerning a tendering procedure for new generating capacity, the change in ownership — as the Commission correctly held in recital 185 of the contested decision — occurred before the date from which the existence of State aid within the meaning of Article 87(1) EC falls to be assessed.

228    The Commission’s task was therefore solely to assess whether, from 1 May 2004, the applicant had benefitted from an advantage under the PPAs inasmuch as those agreements were underpinned by MVM’s obligation to purchase reserved generation capacity and a minimum quantity of electricity at a price covering fixed and variable costs.

229    The Court must therefore reject as ineffective the argument put forward by the applicant with regard to the privatisation procedure, and in particular its claim that the aid under the PPA at issue was repaid as a result of its privatisation, there being no need to rule on the case-law which it puts forward (Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035). In those circumstances, nor can the applicant maintain that AES repaid the Hungarian State the aid under the PPA at issue by means of the price it paid on privatisation and that repayment of the advantage conferred by the PPA at issue results in the same State aid being paid back twice.

230    In that regard, the Court must, last, reject the applicants’ submission that the Commission, in the defence, changed its position on the relation between the PPA at issue and the privatisation.

231    Contrary to the applicant’s submission, it does not appear that, in the defence, the Commission took a different position from that taken in the opening decision (point 2.2) and in the contested decision (recital 39), according to which, although the PPAs, including the PPA at issue, were entered into in the context of privatisation of the power plants, that circumstance does not affect the advantage conferred on the applicant by the PPA at issue as of 1 May 2004 or, consequently, the existence of State aid within the meaning of Article 87(1) EC. Furthermore, as the Commission has rightly pointed out, the passage taken by the applicant from Italy and SIM 2 Multimedia v Commission refers to the benefit of the aid received and to the fact that the sale of shares in a company which is the beneficiary of unlawful aid to a third party does not affect the requirement for recovery. In the present case, there is, however, no question of recovering aid received before privatisation, since the contested decision relates solely to the period starting with the date of accession and the recovery concerns solely the aid received by the applicant.

232    It follows from the foregoing that the applicant’s arguments concerning infringement of the principle of legal certainty and infringement of the principle of the protection of legitimate expectations cannot succeed. Those complaints must therefore be rejected.

 The complaint concerning infringement of the principles of neutrality and equal treatment

233    The applicant relies on infringement of the principles of neutrality and equal treatment, contrary to Article 295 EC, maintaining in essence that, in its assessment, the Commission placed MVM in an advantageous position at the applicant’s expense. In the contested decision, the Commission disregarded the commercial and legal context in which the PPAs were concluded. The applicant further submits that the Commission allowed a State entity to breach a validly concluded commercial contract with an independent generator which had acquired MVM’s assets on privatisation.

234    As a preliminary point, the applicant’s contention that the Commission failed to take account of the commercial and legal context in which the PPAs had been concluded must be rejected for the reasons explained in paragraphs 59 to 64 above.

235    It should then be recalled that Article 295 EC lays down the principle of neutrality with regard to the rules in Member States governing the system of property ownership.

236    It follows from EU case-law that, although the rules governing the system of property ownership continue to be a matter for each Member State pursuant to Article 295 EC, that article does not have the effect of exempting the Member States’ systems of property ownership from the fundamental rules of the Treaty. Thus, and in accordance with Article 86(1) EC, the competition rules, which are fundamental rules, apply without distinction to public and private undertakings (see Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, paragraphs 192 and 193 and the case-law cited).

237    Article 295 EC cannot therefore be held to restrict the scope of the concept of State aid within the meaning of Article 87(1) EC (Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, paragraph 194).

238    In the present case, as has been stated in paragraphs 90 to 106 above and contrary to what is maintained by the applicant, the Commission has not focused its analysis solely on MVM’s ‘purchase obligations’. Indeed, it is apparent from the contested decision that it was the combination of a generation capacity reservation, an obligation to purchase a minimum quantity of electricity and a pricing mechanism covering fixed, capital and variable costs which led the Commission to find an infringement of the Treaty rules on State aid.

239    Moreover, the test of the private investor in a market economy reflects the principle of equal treatment between public and private undertakings (Opinion of Advocate General Mazák in Case C‑124/10 P Commission v EDF and Others [2012] ECR, point 131). It follows from the Commission’s analysis, endorsed in paragraphs 90 to 106 above, that the Commission correctly applied that test, taking the view that, in MVM’s place, an operator acting on purely commercial grounds would not have entered into the PPAs but would have entered into different types of agreements in line with standard commercial practice. Thus, contrary to the applicant’s contention, MVM cannot be considered to have acted as a prudent private investor.

240    Finally, the applicant’s argument that the Commission allowed MVM to abandon the PPA at issue and thereby breach a valid commercial contract with impunity, depriving the parties of recourse to the normal mechanisms for renegotiation of a contract, cannot succeed. In the operative part of the contested decision, the Commission characterises the aid contained in the PPA at issue as State aid within the meaning of Article 87(1) EC, incompatible with the common market, and merely orders the national authorities to refrain from granting that aid and to recover the aid by reference to the relevant period for the assessment of the PPAs starting on 1 May 2004.

241    The principles of neutrality and equal treatment admittedly allow the competition rules in the Treaty to be applied without distinction to private and public undertakings alike, that is to say, irrespective of the system of property ownership to which they are subject, but not in such a way that either public or private undertakings may evade those rules. Thus, since the Commission correctly found an infringement of the State aid rules, the fact that a consequence of the contested decision was that the PPA at issue was terminated does not, however, mean that there is an infringement, in the contested decision, of those principles involving MVM.

242    This complaint must therefore be rejected. In view of the foregoing, the second plea must be rejected.

 The fourth plea in law, alleging that the contested decision was based on an inadequate statement of reasons, contrary to the requirement under Article 253 EC

243    The applicant claims that, in a number of respects, the contested decision fails to give an adequate statement of the reasons on which it is based.

244    According to settled case-law, the statement of reasons required under Article 253 EC must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Courts of the European Union to carry out their review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑494/06 P Commission v Italy and Wam [2009] ECR I‑3639, paragraph 48 and the case-law cited). In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the scheme of the decision (see Budapesti Erőmű v Commission, paragraph 136 and the case-law cited).

245    As a preliminary point, it is sufficient to refer to paragraphs 125 to 128 above, in which it was held that the Commission did not treat the PPAs as a ‘common or generic system’, in order to reject the applicant’s argument that the Commission’s chosen approach of classifying the PPAs thus was inadequate.

246    In the first place, the Court rejects the applicant’s argument that the Commission has failed to provide sufficient reasons in support of its position concerning the time-frame for assessment.

247    It should be noted that the Commission devoted recitals 156 to 172 of the contested decision to the question of the relevant time of assessment. More specifically, after setting out the comments of the interested parties in recital 156 of the decision, it cited the relevant provisions of Chapter 3 of Annex IV to the Act of Accession, namely paragraph 1 of Chapter 3, then Article 1(b) and (c) of Regulation No 659/1999. It went on to set out, in recitals 160 to 168 of that decision, the reasons why the assessment of the aid contained in the PPA at issue in the light of the criteria laid down in Article 87(1) EC was not to be carried out, in the case in issue, by reference to the time when the PPAs were concluded. Furthermore, after stating, in recital 168 of the decision, that the relevant time for the assessment of the PPAs was the period following Hungary’s accession to the European Union, the Commission, in recital 169 of the decision, set out the risks of any other approach and, in recitals 170 and 171 of the decision, rejected the approach proposed by the interested parties.

248    In the second place, the Court also rejects the applicant’s argument that, when the Commission applied the criterion concerning the existence of an advantage, it failed to provide adequate reasons for its reference to wholesale electricity markets in Europe. Contrary to what is maintained by the applicant, the Commission gave a sufficient statement of the reasons why it had chosen to refer to standard commercial practices on those markets in assessing whether an advantage existed.

249    In recitals 177, 178 and 191 of the contested decision, the Commission further explained the reasoning which it had adopted in its analysis, stating that, in order to ascertain whether, in the conditions obtaining when Hungary joined the European Union, a market operator would have entered into the PPAs, it was necessary to identify the main practices of commercial operators on European electricity markets. In that context, it assessed whether the PPAs were consistent with those practices or whether they provided generators with guarantees that a buyer would not accept if it were acting on purely commercial grounds.

250    In that regard, the Commission, in recital 192 of the contested decision, remarked that it was useful to note the structure traditionally found on electricity markets, namely the division of the market into four sub-markets: (i) generation or import and wholesale supply, (ii) transmission or distribution, (iii) retail sale and (iv) balancing services. In recital 193 of the decision, it then explained the particular subdivision that existed on the Hungarian electricity market during the relevant period for assessing the PPAs, namely the hybrid structure consisting in a public utility sector and a competitive sector.

251    In recital 194 of the contested decision, after explaining the reasons why the existence of aid under the PPA at issue was to be analysed against the primary objective assigned to MVM, which was to supply enough power to the regional distribution companies to fulfil the needs of the public utility sector, the Commission concluded that it was therefore necessary, in that context — in order to determine to what extent a prudent market operator acting on commercial grounds would have concluded agreements providing the same guarantees as those provided for by the PPAs — to examine relevant commercial practices on competitive wholesale markets and then compare those practices with the PPAs. In that examination the Commission relied on the sectoral inquiry that resulted in its 2007 report.

252    In view of the foregoing, it must be held that the Commission disclosed its reasoning in a sufficiently clear and unequivocal fashion in such a way as to enable the applicant, amongst others, to understand the reasons for the contested decision so far as concerns the decision to refer to standard commercial practices whilst taking account of the particular features of the Hungarian market, in order to assess whether an advantage was conferred by the PPAs.

253    The Court must also reject the applicant’s claim that the Commission failed to take account of the reality of the situation on the Hungarian electricity market. It can be seen from the relevant recitals of the contested decision (in particular, recitals 193, 211 and 212 as well as table 5) that the Commission took the dual system on the Hungarian market into account and responded to the interested parties’ arguments concerning, specifically on that point, the PPAs concluded on the Hungarian electricity market.

254    Furthermore, in accordance with the case-law cited in paragraph 244 above, the Court rejects the applicant’s argument that the Commission paid only cursory attention to the report of the Hungarian Competition Office on the investigation into the Hungarian electricity market, although that report set out the reasons why the ‘mature market model’ cannot be applied.

255    In any event, apart from the fact that the Commission expressly referred to the report of the Hungarian Competition Office on the sectoral investigation into the Hungarian electricity market in a number of places in the contested decision (in particular recitals 324 and 326 and footnotes 18 and 22 to the decision), it must be noted that the applicant puts forward that argument in the application on the basis of a report which it has not provided to the Court either in its entirety or with production of the point or relevant part of the report on which it relies. The only document provided to the Court consists in a draft report (Annex A.3.6), of around 100 pages, dated 22 December 2005, while in the document listing the annexes to the application, the applicant expressly states that no reference is made to that draft report in the application.

256    Finally, the applicant criticises the contested decision in so far as the Commission failed to provide any indication as to why it dismisses, in footnote 79 to the contested decision, the findings of a study dated March 2006, submitted by the applicant in the course of the administrative procedure. It submits that part of that study examined the counterfactual scenario which the Commission should have applied in order to evaluate whether the PPA at issue resulted in an advantage.

257    In the present case, the Commission in fact referred to the study in question in footnote 79 to the contested decision. However, it should be observed that the footnote was added to recital 333 of the decision, relating to the analysis of a distortion of competition and an effect on trade, and did not concern the criterion regarding the existence of an advantage. The fact that the Commission did not take account of the study in its assessment of whether the PPAs resulted in an advantage for the electricity generators does not mean, however, that the reasoning in the contested decision is inadequate.

258    As the Court has stated in paragraphs 90 to 103 above, the Commission took into account standard commercial practices on the European electricity markets, relying inter alia on the 2007 sectoral inquiry, and it disclosed its reasoning in a sufficiently clear and unequivocal fashion in such a way as to enable the applicant to understand why it had chosen to adopt that approach. Therefore, the fact that the Commission did not take into account a part of a study submitted by the applicant, which concerned, inter alia, what the prices or the duration of agreements on the electricity market would have been in the absence of the PPAs, without mentioning or referring to the study in that regard, cannot constitute a breach of its obligation to state reasons (see, to that effect, Budapesti Erőmű v Commission, paragraph 136).

259    In the third place, the applicant makes a number of submissions concerning, in essence, MVM’s obligation to fulfil its obligations to supply the public utility sector, whether before or after 1 May 2004, maintaining inter alia that it was thus not because of the PPAs that MVM would have been reluctant to release capacity for the free market. It also maintains its position on imports and interconnection capacities and tariffs. It concludes that the Commission’s reasoning that MVM would have paid lower prices in the absence of the PPAs is wrong and lacks any sound economic basis.

260    It should be noted, however, that the applicant’s arguments in this respect concern questions of substance and are thus ineffective since they have been raised in the context of a plea concerning the formal validity of the contested decision — based on an alleged failure to state adequate reasons — under Article 253 EC (see, to that effect, Case C‑417/11 P Council v Bamba [2012] ECR, paragraph 60). At the hearing, in response to a question from the Court, the applicant confirmed, moreover, that the fourth plea raised in this action was based on an infringement of the obligation to state the reasons on which the contested decision is based.

261    It follows that, in the contested decision, the Commission provided sufficient explanations concerning MVM’s obligation to supply the public utility sector, the evolution of the electricity market with the creation of the dual model and the likely consequences for MVM of that dual model, in particular as regards the establishment of a system compensating for the risk associated with financial losses sustained as a result of the lower prices at which surplus electricity was sold in auctions on the free market. It also drew attention to the substantial volume of reserved capacities in the public utility sector and the lack of available capacities on the free market. The applicant’s arguments concerning the inadequacy of the reasoning in the contested decision concerning the questions which it has raised therefore cannot succeed.

262    Furthermore, in the reply the applicant reiterates in essence its criticism relating to the inadequacy of the reasoning as regards the lack of any explanation in the contested decision in support of the implicit assumption that MVM was unable to take advantage of the liberalisation of the electricity market in view of the difficulty of selling surplus electricity on markets other than the public utility sector. As has been stated in paragraph 261 above, the Commission must be held to have provided sufficient explanations on MVM’s situation, on its obligation to supply the public utility sector and on the dual system established, with the likely consequences for MVM.

263    In addition, apart from what has been stated in paragraph 262 above, it should be noted that, in the reply, some of the submissions made by the applicant in support of the fourth plea as well as the actual wording of that plea concern in essence the relevance, as regards the substance, of the reasoning in the contested decision and not the formal validity of the contested decision. In accordance with the case-law cited in paragraph 260 above, such submissions must be found to be ineffective.

264    It follows from the foregoing that the arguments which the applicant has raised concerning a failure adequately to state the reasons for the contested decision cannot succeed and, accordingly, the fourth plea must be rejected in its entirety.

 The fifth plea in law, alleging infringement of Article 87(3)(a) and (c) EC

265    The applicant develops a number of arguments in support of its plea alleging infringement of points (a) and (c) of Article 87(3) EC, all of which are challenged by the Commission.

266    As a preliminary point, in the light of paragraphs 59 to 64 and 121 to 124 above respectively, the Court must reject at the outset the applicant’s criticism (i) that the Commission confined its analysis in the contested decision to the period after Hungary’s accession to the European Union and (ii) failed to assess the PPAs individually in that decision. On the latter point, it should be recalled that, in the contested decision, the Commission correctly pointed out that the governing principles of the PPAs presented similarities such as to justify their common assessment in a State aid procedure, whilst making clear that that comprehensive approach did not prevent it from taking into account the differences that did indeed exist between the PPAs and that the decision thus set out those differences where they were relevant.

267    That approach must thus also be endorsed as regards the assessment which the Commission undertook in recitals 388 to 436 of the contested decision of the compatibility with the common market of the aid granted through the PPAs.

268    Furthermore, it should be borne in mind that, in 1998, the Commission adopted 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.

269    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).

270    The Commission also adopted, on 3 February 2001, Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3), and in 2008 those guidelines were replaced by the new Community guidelines on State aid for environmental protection (OJ 2008 C 82, p. 1).

271    In recitals 388 to 408 of the contested decision, the Commission analysed in detail the question of the compatibility of the aid under the PPAs with Article 87(3)(a) to (c) EC, taking into account the two sets of guidelines on national regional aid. In particular, in recital 396 of the decision it specifically considered the reasons why that aid could not be considered investment aid and had to be classified as operating aid and, in recital 398 of the decision, it stated the reasons why the aid granted through the PPAs did not correspond to the types of operating aid which could be regarded as compatible under those guidelines. It also assessed that aid from the point of view of the Community guidelines on State aid for environmental protection (recitals 409 to 413 of the contested decision) and the new Guidelines on State aid for environmental protection (recitals 414 and 415 of the contested decision).

272    In that context, it is also apparent from recital 397 of the contested decision that the Commission did not exclude without prior analysis the possibility that the aid contained in certain PPAs might be compatible should some PPAs contribute to the mitigation of certain regional handicaps. In recital 410 of the decision, the Commission also noted the particular feature of certain thermal power plants with a combined production of heat and power.

273    It follows that the applicant has no ground for maintaining that the Commission unlawfully held Article 87(3)(a) and (c) EC not to apply and failed to give careful consideration to whether the two sets of guidelines on national regional aid, or the Commission documents mentioned in paragraph 270 above concerning State aid for environmental protection, were applicable.

274    In the context of this plea the applicant also criticises, as manifestly wrong in both law and fact, the assessment which the Commission undertook of the aid granted through the PPA at issue by reference to the methodology for analysing State aid linked to stranded costs, which was adopted on 26 July 2001.

275    However, the Commission cannot be criticised for referring to the methodology for analysing State aid linked to stranded costs (‘the stranded costs methodology’). That methodology allows Member States to grant aid to generators which invested in power plants before liberalisation of the electricity market, in order to compensate — as a result of liberalisation and the consequences that flow from it — for the cost of investments which they will not be able to recoup during the period in which the plants concerned are operational. As is apparent from the actual wording of the Commission Communication relating to the methodology for analysing State aid linked to stranded costs, such aid measures, which are designed to compensate for the cost of commitments or guarantees that it might no longer be possible to honour, may qualify for the derogation provided in Article 87(3)(c) EC provided that they meet certain conditions.

276    Therefore, since it was faced with aid within the meaning of Article 87(1) EC, the Commission was fully entitled, in the course of its compatibility assessment, to ascertain whether that aid could be justified under Article 87(3) EC by virtue of the stranded costs compensation mechanism. It thus decided to determine whether the aid conferred on the generators through the PPAs was in itself compatible with that mechanism, as the latter is described in the Commission Communication relating to the methodology for analysing State aid linked to stranded costs.

277    The Commission, taking the view, in particular in recitals 422, 423, 428 and 429 of the contested decision, that the aid conferred through the PPAs did not meet the conditions set out in point 4 of the stranded costs methodology, thus rightly concluded, in recital 432 of the decision, that the aid contained in the PPAs was incompatible with it. Since such elements suffice to bring the assessment of compatibility to a close, the applicant cannot take issue with the Commission (i) for not having identified the costs related to the PPAs which were to be considered stranded costs, in accordance with point 3 of the stranded costs methodology, and (ii) for not having established that the PPA at issue had become uneconomical for MVM as of 1 May 2004.

278    The applicant’s submission that it is not surprising that the only result of applying the stranded costs methodology to the PPAs is to reach the conclusion that the ongoing PPAs themselves do not meet the conditions set out in that methodology because the PPAs never had the object or effect of functioning as a compensation mechanism for their own eventual termination cannot, even if proved, lead to annulment of the contested decision.

279    It follows from the foregoing that the Commission has not infringed Article 87(3)(a) and (c) EC and has not made a manifest error of assessment in the application of those provisions.

280    The fifth plea must therefore be rejected.

 The sixth and seventh pleas in law, alleging infringement of the principle of legal certainty and fundamental principles of EU law in relation to the recovery order

281    Referring to Article 249 EC, the applicant submits that the recovery order infringes the principle of legal certainty so far as concerns (i) Article 1 of the contested decision and (ii) Article 4 of the contested decision.

282    As a preliminary point, it must be observed that Article 249 EC lists the legal instruments which the European institutions may use to carry out their tasks and defines the characteristics of the principal acts of secondary Community law. Those acts include decisions, such as the decision challenged in these proceedings, whose validity may be challenged only in an action for annulment brought on the basis of Article 230 EC. However, contrary to the applicant’s contention, there is no requirement in Article 249 EC that the terms of a decision adopted by the Commission be specified with sufficient clarity. The reference to Article 249 EC, in the context of the present plea alleging infringement of the principle of legal certainty in relation to the recovery order, is irrelevant and the applicant’s arguments should be rejected in so far as they refer to that article.

283    In that regard, it should be noted that Article 1 of the contested decision states (i) that the purchase obligations set out in the PPAs constitute State aid within the meaning of Article 87(1) EC to the electricity generators, (ii) that that aid is incompatible with the common market and (iii) that Hungary is to refrain from granting that aid no later than six months following the date of notification of the contested decision. In Article 4 of the decision, the Commission ordered Hungary to calculate the exact amount of aid to be recovered on the basis of an appropriate simulation of the Hungarian wholesale electricity market as it would have been, as of 1 May 2004, if the PPAs had not existed, and granted the Hungarian authorities a period of six months within which to make that calculation.

284    The principle of legal certainty, as is apparent from the case-law set out in paragraph 221 above, 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.

285    As regards Article 1 of the contested decision, the applicant has no grounds for complaining that the Commission failed to determine with sufficient precision the actual aid element in the PPA at issue.

286    It is settled case-law that the operative part of an EU act is indissociably linked to the reasons given 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; Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 97).

287    Having regard to recitals 174 to 236 of the contested decision, in the light of paragraphs 90 to 106 above and the case-law cited in paragraph 244 above, the Commission must be held to have given a clear and sufficient indication of what the advantage was which was conferred by the PPAs, and thus by the PPA at issue too. In particular, contrary to what is maintained by the applicant, the aid element consisting in ‘purchase obligations’ has been defined with a sufficient degree of precision, as can be seen from, inter alia, recitals 153, 285, 311, 315, 340 and 469 of the decision.

288    Moreover, contrary to the applicant’s contention, the economic value of the ‘purchase obligations’ is not characterised in different and conflicting ways in the contested decision. A reading of recitals 443 and 447 of the decision clearly shows that the advantage conferred by the PPA at issue is presented as the difference between the amounts which MVM would, under normal market conditions, have paid for the purchase of the electricity it needed and the amounts which it actually paid for the electricity purchased, whether it was needed or not. Thus, the Commission set a method of recovery defining the amounts to be recovered as a difference in revenue and clearly set out its reasoning in that regard.

289    It follows from the foregoing that the advantage conferred by the PPAs, which constitutes State aid incompatible with the common market, within the meaning of Article 87(1) EC, was defined sufficiently precisely in the contested decision and that, consequently, in ordering Hungary to refrain from granting that aid within a certain period, paragraphs 1 to 3 of Article 1 must be regarded as sufficiently clear; there can therefore be no infringement of the principle of legal certainty in that respect.

290    As regards Article 4 of the contested decision, the applicant in essence criticises the Commission for (i) failing to specify what the previously existing situation was which it sought to re-establish and (ii) relied on hypothetical elements. The applicant further submits that nowhere in the contested decision did the Commission condemn the PPAs as incompatible with Community law. Last, the mechanics of the market simulation procedure prescribed by the contested decision actually assume that certain parts of the PPAs should be considered as remaining in force.

291    As a preliminary point, it should be borne in mind that calculation of amounts to be recovered 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.

292    It is also appropriate to refer to the case-law cited in paragraph 135 above, according to which 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 to work out that amount itself, without overmuch difficulty.

293    Thus, when, in the contested decision, Article 1(4) provides, in particular, 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 the ‘appropriate simulation’, as specified in the operative part, must be carried out in the light of the guidelines supplied by the Commission in the grounds of the contested decision.

294    In recitals 443 and 444 of the contested decision, the Commission expressly stated that the recovery order would involve the difference that may have existed between the power generators’ revenues under their PPAs and the revenues that they could have obtained on the market in the absence of the PPAs over the relevant period. Thus, in its view, the exact amount of aid granted to the beneficiaries depended essentially on the price and quantity of electricity which could have been generated and sold on the Hungarian wholesale market over that period in a situation in which the PPAs were not in force. It thus decided upon a simulation of the conditions that would have prevailed on the wholesale electricity market had there been no PPAs as of 1 May 2004 and 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 the PPAs from 1 May 2004.

295    In those circumstances, having regard to the precision and clarity of the reasons stated in the contested decision which, in light of the case-law mentioned in paragraph 286 above, facilitate interpretation of the operative part of the contested decision, the Court finds that the Commission supplied the detailed guidelines and applicable principles for calculating the amount to be recovered.

296    It is true, as the applicant maintains, that it has been held that re-establishing the status quo ante means returning, as far as possible, to the situation which would have prevailed if the operations at issue had been carried out without the grant of State aid and that that does not 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 (Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraphs 117 and 118).

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

298    As the Commission correctly points out, in the present case, the need to make assumptions arises from the fact that it cannot reasonably be assumed that, in the absence of the PPAs, MVM would have purchased no electricity at all from the generators. It must therefore be held that it was necessary for the Commission to make assumptions about the conditions under which MVM would have bought electricity in the absence of the constraints weighing on it under the PPAs. The contested decision is not insufficiently precise as to what those assumptions are and why they are appropriate.

299    The finding made in paragraph 298 above is all the more justified given that the question whether an economic advantage exists must, 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. The Court therefore approves the Commission’s approach whereby 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 (Budapesti Erőmű v Commission, paragraph 115).

300    From that point of view, the approach taken in the present case is wholly in keeping with that taken in Unicredito Italiano, given that, in the present case, it would be irrelevant to take as a counterfactual scenario a wholly hypothetical situation in which, in the absence of a PPA, the applicant would not have sold electricity to MVM, for example. That would then really amount to ‘reconstructing past events differently on the basis of hypothetical elements’, to use the words employed by the Court of Justice.

301    In that context, the Commission, correctly, considered that certain aspects of the existing situation had to be retained and the applicant’s criticism in this regard cannot be accepted. As regards the statements made in recital 455 of the contested decision, the Commission correctly took the view that certain physically available generation capacities could not be used for supply of electricity on the wholesale market, given that they were reserved for the provision of balancing services. Thus, it was right to decide that the market simulation should be carried out on the assumption that the capacities reserved for the provision of balancing services to the transmission system operator, the energy provided on the basis of these capacities and the price obtained for it were the same as under the actual scenario.

302    Furthermore, the applicant merely criticises the contested decision for alleged uncertainty arising from the counterfactual scenario but gives no clear indication as to the reasoning which the Commission ought to have followed.

303    Last, the Court must reject the applicant’s complaint that nowhere in the contested decision was it stated that the PPAs were regarded as incompatible with the common market, since, as previously noted (paragraph 271 above), recitals 388 to 436 of the contested decision are given over to the assessment of the compatibility of the aid granted through the PPAs.

304    It follows that, in the light of the reasons stated in the contested decision, Articles 1 and 4 of the contested decision are sufficiently precise in the direction they give to the Hungarian authorities and, consequently, the sixth plea, which alleges infringement of the principle of legal certainty in relation to the recovery order, must be rejected.

305    In support of the seventh plea, the applicant puts forward a number of complaints based on (i) infringement of the principle of proportionality and misuse of powers, (ii) infringement of international law and (iii) infringement of the principle of the protection of legitimate expectations.

 The complaint concerning infringement of the principle of proportionality and misuse of powers

306    The applicant maintains, in essence, that in requiring the Hungarian government to remove all the so-called ‘purchase obligations’ and to execute recovery as if the PPAs did not exist, the Commission has effectively required Hungary to ensure the termination of the PPA at issue. The operative part of the contested decision thus amounts, in its view, to a manifestly disproportionate and illegal use of the Commission’s powers.

307    As a preliminary point, it should be observed that, contrary to what is maintained by the applicant in the context of this complaint, the Commission clearly established that the PPAs, including the PPA at issue, conferred an advantage for the purposes of Article 87(1) EC.

308    Article 88 EC lays down the procedure for the Commission’s review of State aid. Regulation No 659/1999 further defines the rules laid down by Article 88 EC. In particular, Article 14(1) of Regulation No 659/1999, to which the applicant refers, 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.

309    It should first of all be noted that, in recital 141 of the contested decision, the Commission expressly mentioned the applicant’s concerns regarding the proportionality of the Commission’s request to terminate the PPAs and the applicant’s reference to the possibility of renegotiation of the PPAs.

310    Furthermore, in recitals 382 and 383 of the contested decision, the Commission considered the question as to whether the termination of private-law contracts was contrary to the principle of proportionality and also addressed, in recitals 439 to 441 of the decision, the issue of the proportionality of the recovery of the unlawful aid.

311    As regards the applicant’s arguments concerning the recovery order, as the Court of Justice has repeatedly held, recovery of unlawful aid is the logical consequence of the finding that it is unlawful (see Case C‑529/09 Commission v Spain [2013] ECR, paragraph 90 and the case-law cited).

312    Thus, as the Commission recalled in recital 440 of the contested decision, it is settled case-law that the recovery of State aid unlawfully granted for the purpose of restoring the situation existing previously cannot in principle be regarded as disproportionate to the objectives of the provisions of the Treaty on State aid (see Case C‑75/97 Belgium v Commission [1999] ECR I‑3671, paragraph 68 and the case-law cited, and Case T‑288/97 Regione autonoma Friuli-Venezia Giulia v Commission [2001] ECR II‑1169, paragraph 105).

313    The Court thus upholds the position taken by the Commission in the contested decision, which was to consider that there were sufficient grounds to recover the aid granted through the PPAs, including the PPA at issue, in order to re-establish the conditions of competition. In the present case, the obligation laid down in the contested decision to recover the aid is intended to restore the previously existing situation, namely the commercial conditions in which MVM would have purchased electricity from the generators between 2004 and 2008 in the absence of the PPAs. The finding that there was incompatible State aid with the consequent obligation to recover the entirety of the aid granted through the PPAs, including the PPA at issue, thus does not seem disproportionate or an improper use on the Commission’s part of its powers.

314    As regards the applicant’s arguments concerning the termination of the PPAs, it must be stated that, contrary to the applicant’s contention, the Commission, by the contested decision, does not require Hungary to ensure that the PPA at issue be terminated. Article 1(3) of the decision is limited to an express order that Hungary refrain from granting the State aid contained in the PPAs, including the PPA at issue, which is incompatible with the common market.

315    In accordance with the position defended by the Commission, the fact that Hungary decided to implement Article 1(3) of the contested decision by requiring the termination of the PPA is thus irrelevant for the purpose of assessing any possible infringement of the principle of proportionality on the part of the Commission when it adopted that decision. Although, in a letter of 20 October 2006 to the Hungarian authorities, relied on by the applicant, the Member of the Commission responsible for competition policy referred to termination of the contracts, that cannot permit annulment of the contested decision which, in itself, does not require such termination.

316    That is particularly true in view of the letter, dated 19 June 2008, to which the applicant also refers, in which the Member of the Commission responsible for competition policy merely indicated that, in the same way as had occurred so far as Poland was concerned, the Commissioner could support a stranded costs compensation scheme under which the amount due to be paid back by the Hungarian electricity generators pursuant to the contested decision could be reduced. Moreover, the fact that, following adoption of the contested decision, the draft legislation placed before the Hungarian Parliament in October 2008 provided for termination of the PPAs merely shows the approach taken by the Hungarian authorities to comply with the contested decision.

317    Since the Commission merely imposed a standard requirement in the contested decision, namely to refrain from granting the aid contained in the PPA at issue, there can be no infringement of the principle of proportionality, nor any misuse of powers on the part of the Commission.

318    Finally, it is apparent from the analysis in paragraphs 290 to 304 above that the applicant’s arguments criticising, in connection with the present complaint, the market simulation as provided for in the contested decision cannot succeed and, accordingly, that the stance taken by the applicant relating to a misuse of powers on the part of the Commission cannot be considered well founded.

319    For all those reasons, the present complaint, concerning infringement of the principle of proportionality and misuse of powers, must be rejected.

 The complaint concerning infringement of international law

320    Referring to Article 14 of Regulation No 659/1999 and EU case-law, the applicant submits that international law, in particular the principle of good faith, has been infringed and, accordingly, the principle of the protection of legitimate expectations. It submits that, in accordance with Article 10 of the Energy Charter Treaty, signed in Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24), it had a legitimate expectation that its investment should be protected in full by both the Commission and the Hungarian authorities.

321    It should be observed that the principle of good faith is a principle of customary international law the existence of which has been recognised by the International Court of Justice and which is therefore binding on the European Union (see, to that effect, Case C‑366/10 Air Transport Association of America and Others [2011] ECR, paragraph 101). That principle is the corollary in international public law of the principle of the protection of legitimate expectations, which forms part of the European Union legal order and on which any economic operator to whom an institution has given justified hopes may rely. In a situation where the Community has deposited its instrument of approval of an international agreement and the date of entry into force of that agreement is known, economic operators may rely on the principle of the protection of legitimate expectations in order to challenge the adoption by the institutions, during the period preceding the entry into force of that agreement, of any measure contrary to the provisions of that agreement which will have direct effect on them after it has entered into force (see, to that effect, Case T‑115/94 Opel Austria v Council [1997] ECR II‑39, paragraphs 90 to 93 and the case-law cited).

322    In the present case, as follows from paragraphs 220 to 232 above, there has been no infringement of the principle of the protection of legitimate expectations. In particular, the applicant has not claimed that it ever received any assurance whatsoever as to the nature of the aid contained in the PPA at issue.

323    As regards, in particular, the signature by the Commission on behalf of the European Communities of the Energy Charter Treaty and, in particular, Article 10 thereof concerning the promotion, protection and treatment of investments in that sector, it cannot be held to constitute in any case a precise, unconditional and consistent assurance capable of giving rise to a legitimate expectation on the part of the applicant as to the compatibility of the PPA at issue with the rules of EU law on State aid.

324    It follows that the complaint concerning infringement of international law cannot succeed.

 The complaint concerning infringement of the principle of the protection of legitimate expectations

325    The applicant submits that it had a legitimate expectation that, in so far as the possible application of the State aid rules would have affected the legality of the PPAs on Hungary’s accession to the European Union, this would have been dealt with in the context of the notification of the Hungarian stranded costs legislation HU 1/2004 and it could assume that the Hungarian authorities had properly notified the measures involved in the PPAs under the interim procedure.

326    As a preliminary point, it should be observed, in the light of paragraphs 220 to 232 above, that the applicant could not have had a legitimate expectation that the legality of the PPA in question would not be called in question as a result of Hungary’s accession to the European Union.

327    By letter of 31 March 2004, the Hungarian authorities notified the Commission, under the interim procedure, of Government Decree 183/2002 on the detailed rules for the definition and management of stranded costs. The decree provided for a system of compensation for the costs borne by MVM as an electricity wholesaler. However, by letter of 13 April 2005, the Hungarian authorities withdrew the notification relating to that decree.

328    First, as can be seen from recitals 1 and 369 of the contested decision, and in the light of paragraph 327 above, even if the Commission had become aware of the PPAs’ existence through, inter alia, the notification of Government Decree No 183/2002, the subject-matter of that notification was precisely that decree, which related to a scheme for compensating MVM and not to the PPAs.

329    Second, it is apparent that the applicant in essence bases its argument on the fact that Hungary withdrew the notification of Government Decree 183/2002 whilst it, as an undertaking, was justified in assuming that the Hungarian authorities had properly notified the aid measure entailed by the PPA at issue in the context of the interim procedure. To reject that line of argument, it is sufficient to note that it is ineffective for the purpose of showing there to have been an infringement, by the Commission, of the principle of the protection of legitimate expectations as a result of the order to recover that aid.

330    It follows that this complaint must be rejected. Accordingly, the plea must be rejected in its entirety, there being no need to rule on the question of admissibility raised by the Commission in relation to the applicant’s standing in this action in so far as the recovery of the aid contained in the PPA is concerned (see, to that effect, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraphs 51 and 52, and Case C‑414/08 P Sviluppo Italia Basilicata v Commission [2010] ECR I‑2559, paragraphs 51 and 52).

331    It follows from all the foregoing that the action should be dismissed, without there being any need to grant the applicant’s request for a measure of organisation of procedure.

 Costs

332    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 pay the costs, including those incurred in the proceedings for interim measures, referred to in paragraph 32 above

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

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

Delivered in open court in Luxembourg on 30 April 2014.