Appeal brought on 21 July 2014 by Dunamenti Erőmű Zrt against the judgment of the General Court (Sixth Chamber) delivered on 30 April 2014 in Case T-179/09: Dunamenti Erőmű Zrt v European Commission

(Case C-357/14 P)

2014/C 329/10

Language of the case: English

Parties

Appellant: Dunamenti Erőmű Zrt (represented by: J. Philippe, F.-H. Boret, A.-C. Guyon, avocats)

Other party to the proceedings: European Commission

Form of order sought

The Appellant claims that the Court should:

Pleas in law and main arguments

The Appellant relies on five pleas in law. In the judgment under appeal, the General Court dismissed the application brought by the Appellant for, in essence, the annulment of Commission Decision 2009/609/EC of 4 June 2008 on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements and, in the alternative, the annulment of Articles 2 and 5 of that decision.

By its first plea, the Appellant respectfully contests the General Court’s assessment in concluding that the Power Purchase Agreement (PPA) could be classified as new aid without determining beforehand whether the PPA constituted State aid at all within Article 107(1) TFEU.

By its second plea, the Appellant respectfully contests the General Court’s conclusion that the Commission had not erred in finding that the time of Hungary’s accession to the EU was the appropriate reference period for characterising a measure as State aid in accordance with the criteria laid down in Article 107(1) TFEU. The General Court errs in law in considering that Annex IV established a rule whereby the relevant period to assess whether a State measure constituted State aid was the time of Hungary’s accession. The meaning of Article IV was distorted since it neither provides nor suggests that the analysis of whether a measure constitutes State aid should be conducted at the date of accession.

By its third plea, the Appellant respectfully notes that the General Court commits errors of law in considering that an advantage within the meaning of Article 107(1) had been conferred, without taking into account the elements prevailing at the time of the conclusion of the PPA. The General Court errs in concluding that an advantage had been conferred when i) Magyar Villamos Művek (MVM) had acted as a private investor in concluding the PPA as a preparatory measure to facilitate the privatisation of Dunamenti, and (ii) in any event, even if the PPA had conveyed any advantage (which the Appellant rejects), this was repaid through the sale of Dunamenti.

By its fourth plea, the Appellant respectfully contests the General Court’s assessment of the risk stemming from MVM’s binding minimum off-take obligation. The General Court errs in law in deducing the existence of an advantage from MVM’s binding minimum off-take obligation without proving the existence of a structural risk.

By its fifth plea, the Appellant respectfully contests the General Court’s confirmation of the methodology adopted by the Commission for the calculation of the quantum of the aid. The General Court commits an error in law in upholding the methodology prescribed in that it defined the amounts to be recovered as a difference in revenue and not as a difference in profits since this difference could lead to challenge the mere existence of a State aid.

(1)  OJ L 225, p. 53.