Provisional text

delivered on 27 February 2025 (1)

Case C‑59/23 P

Republic of Austria

European Commission

( Appeal – Nuclear industry – Aid planned by the Hungarian government for the development of two new nuclear reactors at the Paks site – Decision declaring the aid compatible with the internal market subject to compliance with certain commitments by Hungary )

1.By its appeal, the Republic of Austria asks the Court of Justice to set aside the judgment of the General Court of the European Union of 30 November 2022, Austria v Commission (2) by which the General Court dismissed its action for annulment of Commission Decision (EU) 2017/2112 of 6 March 2017 on the measure/aid scheme/State aid SA.38454 – 2015/C (ex 2015/N) which Hungary is planning to implement for supporting the development of two new nuclear reactors at Paks II nuclear power station. (3)

II. Background to the dispute and the decision at issue

2.The background to the dispute, as is apparent from paragraphs 2 to 9 of the judgment under appeal, can be summarised as follows for the purposes of the present case.

3.On 22 May 2015, Hungary notified the European Commission of a measure to provide a financial contribution for the development of two new nuclear reactors at the Paks nuclear power station site in Hungary, where four nuclear reactors are already in operation (‘the notified measure’). The beneficiary of that measure was the MVM Paks II Nuclear Power Plant Development Private Company Limited by Shares (‘the Paks II company’), which was intended to become the owner and operating company of the two new nuclear reactors. The Paks II company is wholly owned by the Hungarian State.

4.On 23 November 2015, the Commission decided to initiate the formal investigation procedure under Article 108(2) TFEU (4) and it adopted the decision at issue on 6 March 2017. The notified measure, described in Section 2 of that decision, concerns the development of two Russian-type VVER-1200 (V491) nuclear reactors (‘the new reactors’) whose construction is entirely financed by the Hungarian State for the benefit of the Paks II company, which will own and operate them. The four Russian-type VVER-440 (V213) nuclear reactors already operating at the Paks nuclear power station site, which belongs to a State-owned electricity trader and power producer, are due to be shut down progressively by 2037 in order to be replaced by the two new reactors, expected to become operational in 2025 and 2026.

5.In accordance with an intergovernmental agreement on cooperation on the peaceful use of nuclear energy, concluded on 14 January 2014 by the Russian Federation and the Hungarian Government (‘the intergovernmental agreement’), the two countries are to cooperate, within the framework of a nuclear programme, in the maintenance and further development of the Paks nuclear power station. According to that agreement, the Russian Federation and Hungary both designate one experienced State-owned and State-controlled organisation which is financially and technically responsible for fulfilling its obligations as contractor or owner in respect, inter alia, of the design, construction and commissioning of the new reactors. The Russian Federation appointed the Joint-Stock Company Nizhny Novgorod Engineering Company Atomenergoproekt (‘JSC NIAEP’), which will construct the reactors, and Hungary designated the Paks II company to own and operate them. For that purpose, JSC NIAEP and the Paks II company signed an agreement on 9 December 2014 relating to a contract for the engineering, procurement and construction in respect of those reactors.

6.In the intergovernmental agreement, the Russian Federation undertook to provide Hungary with a State loan to finance the development of the new reactors. That loan is governed by the Financing Intergovernmental Agreement of 28 March 2014 and provides a revolving credit facility of EUR 10 billion, which is limited to the sole use of the design, construction and commissioning of those reactors. Hungary will provide an additional amount of EUR 2.5 billion from its own budget to finance the investment at the Paks II power station. Hungary will not transfer the funds required to pay the purchase price for the two new nuclear reactors to accounts belonging to the Paks II company. Most of those funds will be held by Vnesheconombank (the Bank for Development and Foreign Economic Affairs of Russia). For each milestone event that is considered fulfilled, the Paks II company will file a request with that bank to pay 80% of the amount due directly to JSC NIAEP. It will also submit a request to the Government Debt Management Agency of Hungary to pay the remaining 20%.

7.The Commission found in the decision at issue that the notified measure constituted State aid as provided for in Article 107(1) TFEU, which, subject to the conditions set out in Article 3 of that decision, was compatible with the internal market in accordance with Article 107(3)(c) TFEU (‘the aid at issue’). Article 3 of the decision at issue requires Hungary to take a number of measures in order to ensure that the Paks II company complies with certain obligations and restrictions as regards, in particular, its strategy for investment or reinvestment, the operation of an auction platform and its legal and structural independence.

III. The procedure before the General Court, the judgment under appeal, the procedure before the Court of Justice and the forms of order sought

8.By application lodged at the Registry of the General Court on 21 February 2018, the Republic of Austria brought an action for annulment of the decision at issue. The interveners in the proceedings before the General Court were the Grand Duchy of Luxembourg, in support of the Republic of Austria, and the Czech Republic, the French Republic, Hungary, the Republic of Poland, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland, in support of the Commission. The Republic of Austria put forward 10 pleas in law in support of its action. By the judgment under appeal, the General Court examined and dismissed all those pleas, except the second and third, which the Republic of Austria had withdrawn, and dismissed the action.

9.Responses have been filed in the present appeal proceedings by the Czech Republic, the Grand Duchy of Luxembourg, the Republic of Poland, the French Republic, Hungary and the Commission. A hearing took place on 12 November 2024. The Republic of Austria and the Grand Duchy of Luxembourg claim that the Court should set aside the judgment under appeal in its entirety, uphold the action at first instance and order the Commission to pay the costs. The Commission and the Czech Republic contend that the Court should dismiss the appeal and order the Republic of Austria to pay the costs. The French Republic and Hungary contend that the Court should dismiss the appeal. The Republic of Poland does not seek a form of order but merely supports the Commission’s position.

10.The Republic of Austria puts forward four grounds in support of its appeal. In accordance with the Court’s request, this Opinion will address only the first, second and fourth grounds of appeal, alleging, respectively, an error of law committed by the General Court in so far as it concluded that the absence of a public procurement procedure for the construction of the new reactors did not vitiate the decision at issue by illegality, an error of law concerning the review of the proportionality of the aid at issue, and an error of law concerning the determination of the constituent elements of the aid at issue.

11.The first ground of appeal is directed against the General Court’s dismissal of the first plea in law, by which the Republic of Austria argued that the decision at issue was unlawful because JSC NIAEP had been entrusted with the construction of the new reactors without a tender procedure, in violation of fundamental provisions of public procurement law, compliance with which, in its view, was inextricably linked to the object of the aid at issue.

This ground of appeal is divided into three parts. I will begin by examining the first two parts together and then the third.

1. The first and second parts

(a) Summary of the complaints raised by the Republic of Austria

(1) First part

13.The first part of the first ground of appeal is directed against paragraphs 27 to 34 of the judgment under appeal. In those paragraphs, the General Court rejected the complaint put forward by the Republic of Austria that the Commission had erred in law when it considered, in recital 280 of the decision at issue, that its obligation to assess the compatibility of aid with provisions of EU law other than those relating to State aid only arises where the aspects of that aid are so inextricably linked to the object of the aid that it is impossible to evaluate them separately. (5) In that context, the General Court first rejected the argument of the Republic of Austria that, in the judgment of 22 September 2020, Austria v Commission, (6) the Court had intended to broaden the scope of that obligation and abandon its case-law according to which a distinction was to be made between aspects that were inextricably linked to the object of the aid and those that were not. It then affirmed that if the Commission had an obligation to adopt a definitive position on the existence or absence of an infringement of provisions of EU law distinct from those coming under the rules on State aid, which did not make such a distinction, that would run counter to, first, the procedural rules and guarantees specific to the procedures specially established for control of the application of those provisions and, second, the principle of the autonomy of administrative procedures and remedies, giving rise to the possibility of a contradiction.

14.The Republic of Austria, supported by the Grand Duchy of Luxembourg, argues that the sole and exclusive purpose of the notified measure is to support the construction of the new reactors and that the General Court erred in holding that object to be limited to the provision of those reactors. In its view, the support granted for the construction of those reactors is in itself contrary to EU law, in particular the rules on public procurement. The Republic of Austria also observes that it cannot be inferred from the interpretation of the judgment in Austria v Commission adopted by the General Court in paragraphs 29 and 30 of the judgment under appeal that the Commission may ignore the rules of public procurement law in the procedure under Article 108 TFEU. If the Commission were not required to take into consideration other relevant provisions of EU law in those proceedings, State aid rules would become a kind of ‘self-contained regime’. Furthermore, contrary to what the General Court stated in paragraph 33 of the judgment under appeal, the risk of contradictory or inconsistent results will not be avoided by maintaining the autonomy of administrative procedures. On the contrary, the less consideration is given to the rules of EU law other than those relating to State aid in the procedure under Article 108 TFEU, the greater that risk becomes. A rigid distinction between administrative procedures also undermines legal certainty.

(2) Second part

15.The second part of the first ground of appeal is directed against paragraphs 35 to 39 of the judgment under appeal, in which the General Court held that the Commission was right to find, in recitals 281 to 284 of the decision at issue, that the award of the contract for the construction of the new reactors did not constitute an aspect of the aid which was inextricably linked to that aid. (7) In that respect, the General Court affirmed that, since the aid at issue consisted of the provision free of charge of the new reactors to the Paks II company for the purpose of their operation, the question of whether the award of the contract for their construction should have been subject to a tender procedure was a matter which preceded the aid measure itself and that the carrying out of such a procedure and the possible use of another undertaking for their construction ‘would alter neither the object of the aid … nor the beneficiary of the aid’. In addition, an infringement of the rules on public procurement would have produced effects solely on the market for the construction of nuclear power stations and not on the market covered by the object of the aid measure at issue (see paragraphs 36 and 37 of the judgment under appeal). As regards the influence of the lack of a public procurement procedure on the amount of the aid, the General Court stated that it had not been demonstrated that other tenderers could have supplied the new reactors on better terms or at a lower price. Furthermore, even if the use of a tender procedure might have altered the amount of the aid, that factor would not by itself have had any effect on the advantage which that aid constituted for the Paks II company. Consequently, ‘an increase or reduction in the aid amount does not result, in the present case, in an alteration to the actual aid or in a modification of its anticompetitive effect’ (paragraph 38 of the judgment under appeal).

16.The Republic of Austria, supported by the Grand Duchy of Luxembourg, observes, first, that the provisions relating to public procurement and those on State aid pursue the same objective of ensuring fair and undistorted competition in the internal market. It could be inferred from that alone that there is an inextricable link between the direct award of the contract for the construction of the new reactors and the aid measure at issue. Second, it submits that a tender procedure in accordance with public procurement law could have resulted in a completely different aid measure, both in terms of its amount and structure. In that context, the fact that the beneficiary of the aid is not JSC NIAEP is irrelevant. Similarly, the argument that an increase or reduction in the aid amount would not result, in the present case, in an alteration to the actual aid or its anticompetitive effect is inconclusive. Indeed, the distinction on which that argument is based, between the provision free of charge of the new reactors to the Paks II company and the resources that Hungary allocated to them, is erroneous. Third, the Republic of Austria argues that the existence of an inextricable link between the award of the public contract for the construction of the new reactors and the aid at issue results solely from the agreement concluded between the Russian Federation and Hungary, from which it is apparent that the award of the construction contract and the loan from the Russian Federation are one and the same process.

(b) Assessment

17.As I mentioned above, it is necessary, in my view, to analyse the first and second parts of the first ground of appeal together. The arguments put forward by the Republic of Austria in that first part do not appear to call into question the assertion, in paragraph 30 of the judgment under appeal, that, in the judgment in Austria v Commission, the Court did not intend to abandon its earlier case-law concerning the legal test based on the distinction between aspects that are inextricably linked to the object of the aid and those that are not (‘the “inextricable link” or “inseparable link” test’), but rather the manner in which the General Court interpreted and applied that test in the present case. That part thus seems to me to be similar to the second part of the first ground of appeal.

In the remainder of my analysis, I will in the first place summarise the relevant case-law concerning the extent of the Commission’s obligation to examine the compliance of an aid measure with provisions of EU law other than those relating to State aid. In the second place, I will examine the complaints raised by the Republic of Austria in the light of the principles that emerge from that case-law.

(1) The relevant case-law

(i) The ‘inextricable link’ test: the judgment in Iannelli & Volpi

19. The ‘inextricable link’ test was formulated for the first time in the judgment of 22 March 1977, Iannelli & Volpi. (8) The Court had been asked, inter alia, whether a national court, invited to rule on the compatibility of a system of State aids or some of its aspects, could take account of a possible infringement of Article 30 of the EEC Treaty (now Article 34 TFEU), in the matter of quantitative restrictions on imports. In answering that question, after having specified, first, that, in the EEC Treaty system, the finding that an aid may be incompatible with the common market was to be determined by means of an appropriate procedure which it was the Commission’s responsibility to set in motion and, second, that Article 30 of that Treaty had direct effect, (9) the Court affirmed, in paragraph 14 of that judgment, that ‘those aspects of aid which contravene specific provisions of the Treaty other than Articles 92 and 93 [now Articles 107 and 108 TFEU] may be so indissolubly linked to the object of the aid that it is impossible to evaluate them separately so that their effect on the compatibility or incompatibility of the aid viewed as a whole must therefore of necessity be determined in the light of the procedure prescribed in Article 93’. It clarified that the position was different ‘if it is possible when a system of aid is being analysed to separate those conditions or factors which, even though they form part of this system, may be regarded as not being necessary for the attainment of its object or for its proper functioning’. Indeed, in the latter case, ‘there are no reasons based on the division of powers under Articles 92 and 93 [of the EEC Treaty] which permit the conclusion to be drawn that, if other provisions of the Treaty which have direct effect are infringed, those provisions may not be invoked before national courts simply because the factor in question is an aspect of aid’.

(ii) The Commission’s obligation of consistency: the judgments in Commission v Italy and Matra

21. A few years later, the Court was called upon to clarify the consequences of the judgment in Iannelli & Volpi for the relationship between the procedure for reviewing State aid and the infringement procedure. In the judgment of 21 May 1980, Commission v Italy, (10) the Italian Republic relied, in particular, on the judgment in Iannelli & Volpi to plead the inadmissibility of the action for failure to fulfil obligations brought against it for infringement of Article 95 of the EEC Treaty (now Article 110 TFEU). It argued that since the disputed tax measure was intended to finance a State aid scheme and thus constituted a measure that was inseparable from the object of that scheme, that measure could not be assessed in the context of an action for failure to fulfil obligations, but only under the procedure for reviewing State aid. The Court, having found that the provisions of the Treaty on State aid and those on discriminatory taxation, while pursuing the same objective of undistorted competition in the common market, presupposed different conditions, confirmed that a measure carried out by means of discriminatory taxation, which could be considered at the same time as forming part of State aid, could be governed by both types of provisions and consequently form the subject matter of a distinct infringement procedure. (11) The Court continued, in paragraph 11 of that judgment, that it followed from the general plan of the Treaty that the procedure for reviewing State aid ‘must never produce a result which is contrary to the specific provisions of the Treaty’. Thus, in that case, if, at the end of the infringement proceedings, the Court had declared the tax in question to be contrary to the provisions of the Treaty on discriminatory taxation, the procedure initiated by the Commission on the basis of the provisions on State aid could not in any event have led to it being maintained.

22. In the judgment of 15 June 1993, Matra v Commission, (12) delivered approximately 10 years after the judgment in Commission v Italy, the Court, hearing an action for annulment of a decision authorising investment aid in favour of a joint venture between two vehicle manufacturers, ruled on that occasion on the relationship between the procedure for reviewing State aid and the procedure under Articles 85 and 86 of the EEC Treaty (now Articles 101 and 102 TFEU), which had been initiated by the Commission in parallel. After referring to the principles established in the judgments in Iannelli & Volpi and Commission v Italy, the Court concluded that the Commission’s obligation to ensure that the provisions on aid are applied consistently with other provisions of the Treaty do not prevent it from taking a decision on the compatibility of State aid without awaiting the outcome of a parallel procedure initiated under Article 85 or Article 86 of the EEC Treaty ‘once it has reached the conclusion, based on an economic analysis of the situation … that the recipient of the aid is not in breach of [those articles]’. (13)

23. In the judgment in Matra, the Court for the first time took a position on the link between the judgment in Iannelli & Volpi and the judgment in Commission v Italy, confirming both the independence of the procedure for reviewing State aid and the requirement that decisions adopted at the end of such a procedure be consistent with other provisions of the Treaty. It further clarified that such a requirement for consistency ‘is all the more necessary where those other provisions also pursue … the objective of undistorted competition in the common market’. (14)

(iii) The case-law of the Court subsequent to the judgments in Iannelli & Volpi, Commission v Italy and Matra and the difficulties in applying the ‘inextricable link’ test

24. The principles established in the judgments in Commission v Italy and Matra have been upheld over the years. Thus, the Court has repeatedly held (i) that the procedure for reviewing State aid must never produce a result which is contrary to the specific provisions of the Treaty; (ii) that, accordingly, State aid, certain conditions of which contravene other provisions of the Treaty, cannot be declared by the Commission to be compatible with the internal market; (15) (iii) that, similarly, State aid, certain conditions of which contravene the general principles of EU law, cannot be declared to be compatible; (16) and (iv) that the provisions on State aid may ‘in no case’ be used to frustrate other rules of the Treaty, sharing, with those provisions, the ‘common purpose’ of ensuring that the interventions of Member States do not have the effect of distorting the conditions of competition in the internal market. (17) The Court recently reaffirmed those principles in the judgments in Austria v Commission (18) and Braesch and Others, (19) as well as in the judgments concerning the aid granted to airlines during the COVID-19 pandemic. (20)

26. The Court has, moreover, endeavoured to clarify the conditions for applying that test.

28. On the other hand, the Court has ruled that the method by which aid is financed, such as a national tax specifically intended to finance an aid scheme, cannot be isolated from ‘the aid as such’ (27) and is a matter which the Commission alone is competent to determine, including in the light of other provisions of the Treaty than those relating to State aid. (28) Similarly, the Court has stated that the modalities which determine the conditions of eligibility for an aid scheme are inseparable from the aid as such and are therefore among the factors which the Commission is required to examine and, as the case may be, approve, in the context of the procedure under Article 108 TFEU. (29) By contrast, the choice of the beneficiary of an individual aid measure is part of the ‘objective’ of that measure. (30) The judgment in Braesch and Others, for its part, stated that measures not requested by the Commission and taken by the Member State concerned in order to obtain from the latter a decision authorising that aid at the conclusion of the preliminary examination stage, are not ‘indissociable modalities’ in terms of the judgment in Iannelli & Volpi, (31) nor are, more generally, measures, ‘linked de facto’ to the aid as such, ‘but which are legally distinct’ from it, adopted by the Member State that notified that aid. (32)

Each of those interventions has its own ‘object’, which is defined by the specific purpose pursued by the measure (for example, favouring certain agricultural holdings or certain industrial sectors, supporting undertakings in a specific region, boosting investments in given activities) and by how it is to be implemented (for example, by means of a tax exemption, credit facility, State guarantee, injection of capital, and so forth). That object must also be determined by taking into account all the elements of the intervention at issue, as specifically planned by the Member State concerned.

33.In summary, in assessing the compatibility of State aid with the internal market, the Commission is required to take into account a possible infringement of provisions of EU law other than those relating to State aid where such an infringement arises from the economic activity financed, from the aid or from its object as such or from aspects inextricably linked to the object of the aid. Such an inextricable link exists with regard to factors or conditions which are necessary for the attainment of the object of the aid or for its functioning, without which the planned State intervention cannot achieve the objectives that it pursues.

34.It is in the light of the case-law referred to in points 19 to 28 above and all the considerations set out thus far that the complaints raised by the Republic of Austria in the first and second parts of its first ground of appeal should be examined.

Application in the present case

35.Before proceeding with my analysis, I would note that, assuming that the arguments made by the applicant in the first part of its first ground of appeal are to be understood – as the Commission and the Member States intervening in support of it understand them – as calling into question the relevance of the ‘inextricable link’ test following the judgment in Austria v Commission, it is apparent from the case-law referred to inter alia in point 25 above that those arguments are bound to fail. (38)

The object of the notified measure

36.In the first part of its first ground of appeal, the Republic of Austria criticises the General Court for failing to find that the ‘object’ of the aid at issue was the construction of new nuclear reactors. In doing so, the General Court deviated from the Commission’s characterisation of that object in the decision at issue. That complaint is, in essence, reiterated in the second ground of appeal. The Czech Republic, the French Republic and Hungary submit that the General Court correctly held, in paragraphs 36 and 37 of the judgment under appeal, that the object of the aid at issue was ‘the provision free of charge [to Paks II] of two new reactors for the purpose of their operation’. (39) The Commission, for its part, states that, while the notified measure concerned the development of two nuclear reactors in Hungary, it did not concern the construction of those reactors as such, but their provision with a view to their use.

37.In that regard, it should be noted that, in the title of the decision at issue, the notified measure is identified as a measure that Hungary is planning to implement ‘for supporting the development of two new nuclear reactors at Paks II nuclear power station’. In recital 3 of that decision, the measure is described as being intended ‘to provide financial contribution for the development of two new nuclear reactors in the Paks site’. In recital 9, under heading 2, entitled ‘Detailed description of the measure’ and subheading 2.1, entitled ‘Description of the project’, it is stated that ‘the measure consists of the development of two new nuclear reactors … in Hungary, whose construction is fully financed by the Hungarian State for the benefit of the entity Paks II … that will own and operate the new reactors’. Recital 15, which sets out the financial assistance envisaged by Hungary, (40) states that the State loan granted by the Russian Federation to Hungary ‘to finance the development of Paks II’ ‘provides a revolving credit facility of EUR 10 billion’ which Hungary will use ‘to directly finance the investments in Paks II necessary for the designing, construction and commissioning’ of the new reactors, to which will be added ‘an additional amount of up to EUR 2.5 billion from’ Hungary’s own budget. Recital 21 of that decision notes that ‘Hungary and Russia signed the IGA with the objective of developing new capacities at the Paks site’. More generally, the notified measure is defined and examined by the Commission as an investment measure ‘granted by the Hungarian State to Paks II for the development of the project’, covering the investment costs for the completion of the project. (41) Admittedly, in recital 197 of that decision, the Commission acknowledged that the notified measure ‘would entail an economic advantage to Paks II due to the fact that it would own and operate the two new nuclear power units fully financed by the Hungarian State’. However, in recital 283 of that decision, which forms part of the grounds examining whether there is an inextricable link, the Commission states that ‘the object of the investment aid to Paks II is to enable it to generate electricity without bearing the investment costs for the construction of nuclear installations’, unequivocally linking the investments made by Hungary to the construction of the new reactors. In recitals 324 to 328 of the decision, the Commission considers the notified measure to be an ‘appropriate instrument for the construction of the … new reactors’, meeting the ‘objective of common interest of the promotion of nuclear energy’. (42) Furthermore, according to recital 332, the notified measure ‘incentivises the achievement of the objective of common interest by way of the development of the nuclear power plant’. Lastly, in recital 330 of the decision at issue, it is clearly stated that the Paks II company ‘was incorporated by the State for the single objective to develop and operate’ those reactors and that it would receive the aid at issue in order to fulfil that objective. Similarly, recital 334 of that decision adds that, as a beneficiary, Paks II ‘would receive a financial contribution for the construction of generation assets’. (43)

38.The applicant, in my view, is therefore correct in asserting that the General Court, in identifying the object of the aid at issue as the ‘provision free of charge’ of new reactors, did not reflect the description of that object as it appears, aside from some consistencies, in the decision at issue, namely a financial contribution from the Hungarian State to the Paks II company for the development – including the design, construction and commissioning – of two new nuclear reactors. In doing so, it misinterpreted the measure contested before it, which constitutes an error of law that may be raised before the Court of Justice in an appeal. (44)

44.In the second part of its first ground of appeal, the Republic of Austria argues, first, that the General Court essentially authorised the Commission to disregard an infringement of the provisions relating to public procurement in its assessment of an aid measure, and second, that, in the present case, such an infringement stemmed from the very object of the aid at issue, namely the financing of the construction of a nuclear power plant. As a consequence, the General Court erred in distinguishing, in paragraphs 28 to 32 of the judgment under appeal, the present case from that which gave rise to the judgment in Austria v Commission.

45.The French Republic challenges the admissibility of that complaint on the ground that it was not raised before the General Court. Admittedly, in its action, the Republic of Austria did not specifically claim that the direct award to JSC NIAEP of the contract for the construction of the new reactors formed part of the very object of the aid at issue. However, it is apparent from paragraph 20 of the judgment under appeal that, on the basis of its interpretation of the judgment in Austria v Commission, it nevertheless argued that it was of little importance, for the purpose of assessing the aid at issue, whether such a direct award constituted an ‘inextricable aspect’ or even an ‘aspect’ of the aid, since, in general, any State aid which contravenes provisions of EU law cannot be declared compatible with the internal market. Accordingly, it cannot be held that the complaint that the Republic of Austria now submits before the Court of Justice changes the subject matter of the proceedings before the General Court. (50)

46.On the substance, that complaint, which in any case lacks detail, should, to my mind, be rejected.

47.On the one hand, in so far as it seeks to criticise the General Court for having held that the Commission ‘may ignore the rules on public procurement in the context of a procedure based on Article 108 TFEU’, that complaint is based on a misreading of the judgment under appeal. Indeed, in paragraphs 28 to 32 of that judgment, the General Court merely stated that, in the judgment in Austria v Commission, the Court of Justice had not intended to abandon its case-law stemming from the judgment in Iannelli & Volpi, which, as I have already pointed out, cannot be called into question. By contrast, contrary to what the Republic of Austria seems to believe, the General Court did not deny that the Commission is required to take into consideration, in the context of that procedure, a possible infringement of a provision of EU law other than those relating to State aid, including the rules on public procurement, where such an infringement arises from the object of the aid concerned or from one of its inextricable aspects.

48.On the other hand, and as argued in particular by the Czech Republic, that complaint likewise cannot succeed in so far as it claims that the infringement of the provisions relating to public procurement relied on by the applicant stems from the very ‘object’ of the aid at issue or from the ‘activity financed’ by it. Indeed, even if, as I propose, the Court of Justice were to find that the General Court was wrong to exclude the construction of the new reactors from the object of that aid, the direct award of the contract for that construction to JSC NIAEP could only constitute an ‘aspect’ linked to that object, it still being necessary to examine whether it is inextricably linked to it.

The existence of an infringement of the rules on public procurement arising from the object of the aid

49.In the second part of its first ground of appeal, the Republic of Austria challenges the General Court’s analysis of the existence of an ‘inextricable link’ between the direct award of the contract for the construction of the new reactors to JSC NIAEP and the object of the aid. I refer, for a presentation of the arguments put forward by that Member State, to point 16 above. As I stated in point 17 above, some of the arguments raised in the first part of the first ground of appeal are also intended, in essence, to challenge that analysis.

50.I would observe that, in points 36 to 43 above, I arrived at the conclusion that the definition of the object of the aid at issue adopted by the General Court in paragraph 36 of the judgment under appeal is vitiated by an error of interpretation of the decision at issue and that, in any event, such a definition stems from an incorrect characterisation of the facts. It must, however, be borne in mind that, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement cannot lead to the setting aside of that judgment, and a substitution of grounds must be made and the appeal dismissed. (51) It is therefore appropriate to ascertain whether, despite the errors of law committed, the General Court was correct in concluding, in paragraph 39 of the judgment under appeal, that the Commission was right to find that the award of the contract for the construction of the new reactors did not constitute an aspect of the aid which was inextricably linked to that aid.

51.For the reasons that I will explain, I do not believe that to be the case.

52.In the first place, and as a preliminary point, while I agree, inter alia, with the French Republic that the argument put forward by the Republic of Austria – that the mere fact that the rules on State aid and those on public procurement pursue the same objective of ensuring undistorted competition in the internal market is sufficient to conclude that there exists an inextricable aspect – cannot be accepted, (52) the Republic of Austria is nevertheless correct in recalling that that convergence of objectives places a more stringent obligation on the Commission to ensure consistency between those two sets of provisions.

53.In the second place, the General Court erred in law in finding, in paragraph 36 of the judgment under appeal, that the decision to award the contract for the construction of the two new reactors does not constitute an aspect of the aid itself, in so far as that award ‘concerns the manufacture and supply of the asset to be provided free of charge and thus precedes the aid measure itself’. First, the premiss for that conclusion, namely that the object of the aid at issue is the provision free of charge of two new nuclear reactors to the Paks II company, is erroneous, as I have demonstrated above. Second, as argued, in essence, by the Republic of Austria, when State intervention financed by aid under Article 107 TFEU is spread over different phases, the characterisation as an ‘aspect’ or even an ‘inextricable aspect’, as provided for in Iannelli & Volpi, of a measure adopted during one of those phases is not precluded by the mere fact that that measure precedes that which terminates the entire process. Thus, even assuming that the General Court correctly held that the object of the aid at issue was the provision free of charge to the Paks II company of the new reactors, that would not automatically mean that the direct award to JSC NIAEP of the contract for their construction was a factor unrelated to the aid at issue. Admittedly, as the French Republic claims, an interpretation of the ‘inextricable link’ test in which the concept of ‘inextricable aspect’ includes any ‘design aspect’ of a project receiving public funding would render such a test ineffective. However, that argument cannot succeed in the present case. The award of the contract for the construction of the new reactors is not a simple ‘design aspect’, nor a secondary aspect of the notified measure. The object of the aid at issue is in fact the development of those reactors, which constitute the asset intended to be made available to the beneficiary.

54.In the third place, as the Republic of Austria rightly argues, it is apparent from the decision at issue and from the judgment under appeal that the designation of JSC NIAEP as manufacturer was one of the factors of the intergovernmental agreement, of which the financing agreement mentioned in point 6 above was an integral part, and constituted one of the conditions for the loan intended to finance the majority of the investments required for the development of the new reactors. According to the case-law referred to in point 25 above, the method of financing aid cannot be separated from that aid and the assessment thereof, including in the light of provisions of the Treaty other than those relating to State aid, falls within the exclusive competence of the Commission.

55.In the fourth place, it does not follow from the case-law recalled in points 19 to 25 above that a factor or condition of aid which does not have a direct impact on the determination of the beneficiary or beneficiaries of the aid or on its amount cannot constitute an ‘inextricable aspect’, the legality of which must be reviewed by the Commission in the procedure under Article 108 TFEU. By contrast, it is clear from that case-law that a factor or condition of the aid that is ‘necessary for the attainment of its object or for its proper functioning’ does constitute such an aspect. In the present case, as the Republic of Austria claims, in essence, the award of the construction contract to JSC NIAEP was necessary both for the attainment of the object of the aid at issue and for its proper functioning. Indeed, first, it appears from the decision at issue and from the judgment under appeal that the choice of JSC NIAEP as the undertaking responsible for the design, construction and commissioning of the new reactors was an integral part of the intergovernmental agreement and that the loan granted by the Russia Federation to Hungary was related to that choice. (53) Second, it is clear from the fact that, both before the Commission and before the General Court and the Court of Justice, Hungary maintained that JSC NIAEP was the only undertaking capable of providing the technology necessary for the construction of the new reactors, that that Member State was convinced that, from a technical point of view, the award of the construction contract to that undertaking was a necessary choice in order to ensure the viability and success of the project financed by the aid at issue.

56.In the fifth and final place, I question the relevance, for the purpose of assessing the existence of an inextricable aspect in terms of the judgment in Iannelli & Volpi, of the finding in paragraph 37 of the judgment under appeal that ‘an infringement of the rules on public procurement would produce effects solely on the market for the construction of nuclear power plants and would have no consequences for the market covered by the object of the aid measure at issue’. First, such a finding does not support the conclusion that the award of the construction contract is not an inextricable aspect of the aid at issue. In fact, identifying the measures that cannot be separated from the aid logically precedes both the assessment of their compliance with EU law and the examination of their impact on the compatibility of the aid. Second, and more fundamentally, I have doubts as to the validity of the premiss on which that finding is based, namely that only infringement of a provision other than those relating to State aid which would result in an additional distortion of competition or trade on the market covered by the aid in question may give rise to an obligation for the Commission to find such an infringement in the context of the procedure under Article 108 TFEU. (54) Indeed, it is clear from the case-law of the Court of Justice that, when the Commission assesses whether proposed aid satisfies the condition laid down in Article 107(3)(c) TFEU of not adversely affecting trading conditions to an extent contrary to the common interest, it must take into account the negative effects that the aid may have on competition and trade on the internal market as a whole, defined, in accordance with Article 26(2) TFEU, as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. (55) The reference made by the French Republic and Hungary to the judgment of 31 January 2001, Weyl Beef Products and Others v Commission, (56) cannot lead to a different conclusion. In the paragraphs of that judgment to which those Member States refer, the General Court, after finding that the contested measures were inextricably linked to the object of the aid at issue, examined whether they entailed effects going ‘beyond what is necessary for the aid to attain the objectives permissible under the Treaty’. That examination is clearly part of the review of the proportionality of the aid, which follows the definition of the scope of the measures to be taken into account for the purpose of assessing its compatibility with the internal market. Therefore, the judgment in Weyl Beef Products and Others v Commission provides no clarification on what qualifies a measure as an ‘inextricable aspect’, nor does it support the argument that only the effects of such a measure liable to arise on the ‘market covered by the object of the aid measure at issue’ fall within the scope of the review to be conducted by the Commission in the context of the procedure under Article 108 TFEU. By contrast, that judgment is in line with the case-law resulting from the judgment in Iannelli & Volpi. (57) The same applies to the judgment of 3 December 2014, Castelnou Energía v Commission, (58) cited by the Commission in particular, which states that if the aspect of aid is inextricably linked to the object of that aid, ‘the Commission must assess its compatibility with provisions other than those relating to State aid in the context of the procedure provided for in Article 108 TFEU and that assessment may result in a finding that the aid concerned is incompatible with the internal market’.

57.Concluding on that latter point, my view is that it is possible that an infringement of a provision of EU law which is liable to produce a distortion of competition on a different market, but, as in the present case, one that is linked to that covered by the aid, must be taken into account by the Commission in its examination of the compatibility of the aid with the internal market.

(iv) The obligation for the Commission to examine a possible infringement of the provisions relating to public procurement

58.It emerges from all the foregoing considerations that the General Court was wrong to uphold the Commission’s conclusion that the direct award to JSC NIAEP of the contract for the construction of the new reactors did not constitute an ‘inextricable aspect’ of the object of the aid at issue.

59.It follows that it also erred in holding that the Commission was not required to examine, in the context of the procedure leading to the adoption of the decision at issue, the question of the compatibility of that award with the provisions relating to public procurement, which had been raised during that procedure by the Republic of Austria and other interested parties. (59)

(3) Conclusion on the first and second parts of the first ground of appeal

60.On the basis of all the foregoing considerations, I am of the view that the first and second parts of the first ground of appeal, taken together, are well founded.

The third part

61.The third part of the first ground of appeal consists of two complaints. The first alleges failure to state reasons for the decision at issue, which the General Court failed to find, and the second alleges an infringement of the provisions of public procurement law. Those complaints are directed against paragraphs 40 to 49 and 196 to 203 of the judgment under appeal.

62.Paragraphs 40 to 49 of the judgment under appeal form part of the grounds on which the General Court dismissed the Republic of Austria’s first plea in law, concerning the absence of a public procurement procedure. In the first place, in paragraphs 41 and 42, the General Court held that the Commission was right to take the view, in recital 285 of the decision at issue, that, in responding to the observations submitted to it by interested parties concerning the compliance of the notified measure with Directive 2014/25, it was entitled to refer to the infringement proceedings initiated against Hungary, in which it had been satisfied, ‘based on an in-depth analysis of the technical requirements’ which Hungary had relied on, that that directive did not apply to the award of the construction work for the new reactors on the basis of Article 50(c) thereof (‘the infringement proceedings’). In the second place, in paragraphs 43 to 46 of the judgment, the General Court examined the Commission’s reply to the written questions put to it by way of a measure of organisation of procedure as well as the documents submitted in support, noting that it was clear from that reply, as confirmed by those documents, that the Commission had concluded that the construction work for the new reactors could be awarded directly to JSC NIAEP ‘without a prior call for competition because, for technical reasons, no competition existed’. In the third place, in paragraphs 47 and 48 of the judgment under appeal, the General Court stated that it could not be accepted that ‘the procedure relating to the compatibility of aid with the internal market may lead to calling into question all the decisions taken previously and which have already been the subject of a separate procedure’, since ‘the principle of legal certainty precludes the Commission from carrying out, in the State aid procedure, a fresh examination of the award of the construction contract while not possessing any new information as against the time when it decided to close the infringement proceedings’. In paragraph 49 of the judgment under appeal, the General Court concluded, in the fourth and last place, that ‘the Commission did not err in law when it relied, in any event, on the outcome of the infringement proceedings for the purpose of the decision [at issue]’.

63.By contrast, in paragraphs 196 to 203 of the judgment under appeal, the General Court rejected the first part of the tenth plea, alleging that the decision at issue contained an inadequate statement of reasons as to the compatibility of the aid with other provisions of EU law. The General Court considered in those paragraphs, in essence, that since the Commission had taken the view, in recitals 280 to 284 of the decision at issue, that it was not required to examine the question of a possible infringement of Directive 2014/25, in the absence of an inextricable link between that infringement and the object of the aid at issue, it was not required to explain in the decision at issue the reasons why the conditions provided for in Article 50(c) of Directive 2014/25 had been satisfied.

(a) The complaint concerning the absence of a finding of a failure to state reasons for the decision at issue

64.The Republic of Austria submits that the General Court erred in finding that adequate reasons had been given for the decision at issue as to whether the provisions relating to public procurement had been infringed. A mere reference to closed, non-public infringement proceedings did not constitute an adequate statement of reasons. It maintains that it was only thanks to the Commission’s observations and the documents produced by it in response to a measure of organisation of procedure adopted by the General Court that the latter was able to ascertain the reasons that led the Commission to rule out an infringement of the provisions relating to public procurement.

65.The French Republic pleads that the complaint is inadmissible on the ground that it has been raised for the first time at the appeal stage. In that regard, I note that it is clear from paragraphs 192 and 196 to 203 of the judgment under appeal that the Republic of Austria raised an objection before the General Court in relation to the inadequacy of the statement of reasons for the decision at issue on the compatibility of the aid with the provisions of public procurement law, and that the General Court examined that complaint before rejecting it. It is also apparent from paragraphs 40 to 49 of the judgment under appeal, the content of which is set out in point 62 above, that the General Court specifically approved the Commission’s reference to the infringement proceedings in recital 285 of the decision at issue. It follows that since the present complaint reiterates the complaints raised by the Republic of Austria before the General Court and originates from the grounds of the judgment under appeal, that complaint is admissible. (60)

66.It is settled case-law that, while the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review, that statement of reasons must, however, be adapted to the nature of the act at issue and to the context in which it was adopted. (61) It is also settled case-law that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will affect the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. (62)

In the present case, the Commission justified its conclusion that the assessment of the aid at issue was not affected by the alleged infringement of the rules on public procurement on two grounds. On the one hand, in recital 283 of that decision, it primarily argued that such an infringement, if established, would produce no additional distortive effect on competition and trade on the electricity market covered by that aid, and that, therefore, it was not required to rule on its existence. On the other hand, in recital 285 of that decision and in the alternative, it referred to the infringement proceedings in which it had found that Directive 2014/25 did not apply to the direct award of the construction contract to JSC NIAEP and that therefore there was no infringement of the provisions of that directive, as alleged by the Republic of Austria in particular.

The grounds given as a primary basis, while meeting the requirements of Article 296 TFEU, are, for the same reasons as those set out in points 49 to 59 above, vitiated by errors which affect their substantive legality.

In those circumstances, the validity of the Commission’s conclusion, as confirmed in the judgment under appeal, that it was not required to examine in the decision at issue the question of the compatibility of the award of the contract for the construction of the new reactors with the rules on public procurement, is based solely on the grounds set out in the alternative.

As a preliminary point, like the Commission and all the Member States participating in the present proceedings, I take the view that the Commission was entitled in the present case to fulfil its obligation to carry out such an examination by referring to the infringement proceedings, which had been closed without finding any infringement of those rules. Indeed, it is clear from the judgment in Commission v Italy, inter alia, as mentioned in point 21 above, that a cumulative application of infringement proceedings and the procedure for reviewing State aid constitutes the general rule where a State measure falls at the same time within the scope of the State aid provisions and other provisions of the Treaty. It is also clear from the factual circumstances of the case giving rise to that judgment that such a cumulative application is not ruled out even where there is an inextricable link between the national measure held to be contrary to a provision of the Treaty other than those relating to aid and the object of the aid, at least where infringement proceedings have been initiated before the opening of the procedure for reviewing State aid.

However, such a reference could only replace a consideration as to the substance, in the decision at issue, of the question of the non-compliance of the notified measure with the provisions of Directive 2014/25 on the condition that the Commission explained, in that decision, the facts and points of law that formed the basis for its finding that there was no infringement of EU law. Although such an obligation must be reconciled with the requirements of the confidentiality of documents in the infringement proceedings, relied on in particular by the Republic of Poland and the French Republic, such requirements cannot nullify the Commission’s duty to state reasons for the measures it adopts.

In that regard, it must be noted that recital 285 of the decision at issue merely sets out the ‘preliminary conclusion’ reached by the Commission in the infringement proceedings, giving no indication of the factual and legal considerations on which that conclusion was based. It is indeed settled case-law that the question whether the statement of reasons meets the requirements of Article 296 TFEU 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. Nevertheless, in the present case, without being contradicted on this point by the Commission, the Republic of Austria has argued that, at the date on which the decision at issue was adopted, the elements of the infringement proceedings that could possibly fill the gaps in the wording of recital 285 of that decision were not public and were not accessible to the interested parties participating in the proceedings. Therefore, they cannot be considered to be part of a context known to those interested parties, allowing them to understand clearly and unequivocally the reasons that led the Commission to conclude that Directive 2014/25 was not applicable in the present case. Contrary to the assertions of the French Republic, the fact that the Commission provided the reasons for the decision at issue in the course of the proceedings cannot compensate for the inadequacy of the initial statement of reasons for that decision. The reasons for a decision may in fact not be explained for the first time ex post facto before the Court, save in exceptional circumstances which, failing any urgency, are not present in this case.

It is clear from all the foregoing considerations that this complaint must be upheld.

(b) The complaint alleging infringement of the provisions relating to public procurement

By a separate complaint, the Republic of Austria, supported by the Grand Duchy of Luxembourg, ‘recalls the doubts’ it expressed at the hearing before the General Court concerning the applicability in the circumstances of the present case of Article 50(c)(ii) of Directive 2014/25, which allows a negotiated procedure without a prior call for competition when the work can be supplied only by ‘a particular economic operator’ on the ground that ‘competition is absent for technical reasons’. It argues that ‘it is much more likely’ that the criteria for the award of the contract for the construction of the new reactors, put forward by Hungary, which are focused in particular on safety, were artificially restricted in order to receive Russian funding. In any event, even assuming that those criteria were objective, it was not impossible that, given the value of the contract, other tenderers would have been identified following a call for tenders. The Republic of Austria, supported by the Grand Duchy of Luxembourg, further contends that, in paragraphs 38 and 64 of the judgment under appeal in particular, the General Court placed on it the burden of proving that other tenderers could have supplied the new reactors. In its view, it was for Hungary – which intended to rely on the exception provided for in Article 50 of Directive 2014/25 – to show that a tender procedure could be omitted.

It appears to me that this complaint cannot succeed in so far as it is directed against paragraphs 40 to 49 of the judgment under appeal. To my mind, its examination by the Court is problematic on two fronts. On the one hand, the arguments of the Republic of Austria are vague and incomplete. On the other hand, it is apparent, in my view, from the reasons set out in paragraphs 40 to 49 of the judgment under appeal, that the General Court merely found (i) that the Commission had ‘concluded’ in the infringement proceedings, based on ‘an in-depth analysis of the technical requirements’ which Hungary had relied on, that that Member State was entitled in the present case to have recourse to a procedure without a prior call for competition under Article 50(c)(ii) of Directive 2014/25, and (ii) that, in those circumstances, the reference to the outcome of that procedure, contained in recital 285 of the decision at issue, was justified. By contrast, it does not appear, in my opinion, from those paragraphs of the judgment under appeal, that the General Court conducted a review of the legality of the conclusion – on which the Commission relied in the alternative in the decision at issue – according to which Directive 2014/25 was not applicable in the present case. As the Commission rightly stated at the hearing, the General Court, with regard to that issue, merely carried out, in those paragraphs, an appraisal of the facts.

(c) Conclusion on the third part

For the reasons set out above, I am of the view that the third part of the first ground of appeal, in so far as it criticises the General Court for not finding a failure to state reasons for the decision at issue, as discussed in points 71 and 72 above, is well founded.

3. Conclusion on the first ground of appeal

On the basis of all the foregoing considerations, I propose that the Court uphold the first ground of appeal.

Most of the arguments raised by the Republic of Austria in its second and fourth grounds of appeal overlap and I will therefore examine them jointly. Those grounds of appeal are directed against paragraphs 51 to 65 and 184 and 185 of the judgment under appeal.

In paragraphs 51 to 65 of the judgment under appeal, the General Court analysed and dismissed the first part of the fourth plea, alleging that the aid at issue was disproportionate. The Republic of Austria argued in that part that since there had been no call for tenders for the construction of the two new reactors, the proportionality of the aid was not ensured as there was no guarantee that the amount of that aid was limited to the minimum required to execute the project. First, the General Court confirmed that ‘while Article 107(3)(c) TFEU requires that aid be limited to the minimum, it does not therefore follow that conducting a call for tenders is a condition for the proportionality of an aid measure’, and that such a procedure ‘is only one of many means of limiting aid to the minimum required to attain the objective pursued’ (paragraphs 59 and 60). The General Court then held that ‘the Republic of Austria’s assertion that the construction of the reactors could have been carried out at a lower cost and with less aid if a tender procedure had taken place was not supported by evidence’. Therefore, ‘it was for the Republic of Austria to provide information on an alternative solution for the construction of the reactors in question’ (paragraph 64). Lastly, the General Court clarified in paragraph 65 of the judgment under appeal that, ‘in any event, the question of whether the aid measure was limited to the minimum required to achieve the intended goal is effectively asking whether the provision free of charge of the two new reactors was proportionate, that being the object of the aid at issue’.

In paragraphs 177 to 190 of the judgment under appeal, the General Court analysed and dismissed the ninth plea, alleging an inadequate determination of the aid at issue. In paragraph 183 of that judgment, it first recalled, as a preliminary point, that the objective of determining the aid elements is to allow the Commission to come to a conclusion as to whether the aid is appropriate, necessary and not disproportionate. Second, it referred to the judgment of 12 July 2018, Austria v Commission, in which it had already held that the Commission is not obliged to quantify the precise amount of the grant equivalent arising from an aid measure before it may examine the proportionality of that measure in the light of Article 107(3)(c) TFEU. In paragraph 185 of the judgment under appeal, as regards the financing costs, the General Court, after observing that recital 28 of the decision at issue referred to the costs of financing the debt over the entire term of the revolving credit facility, noted that the Republic of Austria had not offered ‘any detailed argument capable of demonstrating that, on the basis of the loan interest rates mentioned in that recital, with the further details given in footnote 16 of [that] decision, the Commission was unable to verify the proportionality of the aid element and what purpose would be served in that respect by stating the external financing costs (interest on borrowings), such as those that a market investor would have to pay under market conditions’.

By its second ground of appeal, the Republic of Austria complains that the General Court was wrong to validate the review, which it considered inadequate, of the proportionality of the aid at issue carried out by the Commission in the decision at issue. On the other hand, in its fourth ground of appeal, which is divided into three parts, the Republic of Austria complains that the General Court accepted an inadequate determination of the aid at issue, on account in particular of the absence of a public procurement procedure, the failure to take into account the external financing costs, and the failure to calculate a grant equivalent.

Hungary, the Republic of Poland and the Commission express reservations on various grounds as to the admissibility of the second and/or the fourth ground of appeal. Although those reservations are unfounded to the extent that they refer to those grounds of appeal in their entirety, some of them, however, must be accepted in respect of individual complaints raised by the Republic of Austria in those grounds of appeal. In the remainder of my analysis, I will state whenever that is the case.

Although, in general, I agree that the second and fourth grounds of appeal are not fully expounded and are at times unclear, it is possible, however, to identify three complaints, which relate to the impact, in the context of the General Court’s review of the proportionality of the aid at issue, of the following factors: (i) the absence of a public procurement procedure; (ii) the failure to calculate the grant equivalent; and (iii) the failure to determine the external financing costs.

1. The absence of a public procurement procedure

The Republic of Austria submits that the General Court did not clearly identify, or incorrectly identified, the object of the aid at issue, by excluding from that object the construction of the new nuclear reactors. That prevented it from conducting a ‘proper’ examination of the Commission’s review of the proportionality of the aid. It maintains that the contract price paid by Hungary in connection with the construction of the reactors is a fact that cannot be overlooked when assessing the aid at issue. It concludes that, contrary to the General Court’s assertion, particularly in paragraph 65 of the judgment under appeal, the content of which is set out in point 79 above, the proportionality of that aid could not be properly assessed in the absence of a public procurement procedure. Such a procedure could have resulted in a completely different aid measure, in particular in terms of its amount and structure. The mere assertion, in paragraph 59 of the judgment under appeal, that ‘a tender procedure is only one of many means of limiting aid to the minimum required to attain the objective pursued’, is not sufficient by itself, given the failure to state the criteria according to which the review of the proportionality of the aid at issue took place. On that point, therefore, the judgment under appeal is vitiated by a failure to state reasons.

As I have already stated, it is clear from the judgment under appeal, and in particular from paragraphs 36 and 65 thereof, that the General Court considered that the object of the aid at issue consisted in the ‘provision free of charge’ of the new reactors. In points 34 to 39 above, however, I took the view that that definition of the object of the aid at issue, which excludes from its scope the construction of the new nuclear reactors, stems from a misinterpretation of the decision at issue and an error in the legal characterisation of the facts. Those errors necessarily call into question the premiss for the General Court’s dismissal, in paragraph 65 of the judgment under appeal, of the relevance of the complaints put forward by the Republic of Austria in its fourth plea.

In so far as, in that paragraph 65, the General Court had to refer, in a more circumscribed manner, to the advantage that Paks II derives from the project financed by Hungary, owing to the development and provision of new generation assets, it should be pointed out that there is a close correlation between that advantage and the amount that Hungary invested in that project, including the actual purchase price of the nuclear power plant, intended to reflect, at least in part, the economic value of those assets. It follows that any assessment of the proportionality of the aid at issue had to start with that amount.

It follows from the foregoing considerations that, in so far as it is directed against paragraph 65 of the judgment under appeal, the present complaint must, in my view, be upheld. I should like to stress, however, that that paragraph contains a ground that is included for the sake of completeness, as evidenced by the expression ‘in any event’. It follows that the present complaint is only valid to the extent that the arguments put forward by the Republic of Austria against paragraphs 58 to 64 of the judgment under appeal are upheld.

88.In the first place, as regards the grounds contained in paragraphs 58 and 59 of the judgment under appeal and set out in point 79 above, it cannot, in my view, be disputed, as I have just explained, that the review of the proportionality of the aid at issue, and in particular the assessment of whether it was limited to the minimum required to allow the delivery of the project it was intended to finance, could not ignore the amount of investment authorised for the execution of that project, including the purchase price of the new reactors. Nor may it be disputed, as the General Court itself confirms, that the conduct of a tender procedure is a means for the Commission to ensure the proportionality of a contract price, to the extent that it is determined competitively. As is apparent from paragraph 53 of the judgment under appeal, the Republic of Austria had argued, in the first part of its fourth plea, that, in the absence of a call for tenders for the construction of the new reactors, the proportionality of the aid at issue was not guaranteed and that the factors on which the Commission had relied – namely an absence of overcompensation and the obligation to repay the profits – were irrelevant to the question of whether the aid at issue was limited to the minimum required. In those circumstances, the Republic of Austria is correct when it now argues (i) that the mere assertion in paragraph 59 of the judgment under appeal that ‘the tender procedure is only one of many means of limiting aid to the minimum required to attain the objective pursued’, was not sufficient to address the criticisms it had raised, without any indication of the factors that the Commission had relied on in the absence of such a procedure, and (ii) that the judgment under appeal is, on that point, vitiated by a failure to state reasons. The counterarguments put forward by the Member States participating in the present proceedings and by the Commission – all derived, moreover, from the decision at issue – cannot remedy the shortcomings of the judgment under appeal on that point.

89.In the second place, as regards paragraph 64 of the judgment under appeal, the content of which is set out in point 79 above, in its first ground of appeal, the Republic of Austria criticises the General Court for having imposed on it the burden of proving that other tenderers could have built the new reactors at a lower cost. In that respect, it is sufficient to note that, in paragraph 64, the General Court justifies imposing such a burden of proof on the Republic of Austria by referring to the market valuation carried out by Hungary and verified by the Commission in the infringement proceedings, from which it emerged that no other appropriate suppliers were available. However, since the factors on which the Commission had relied in those proceedings were not accessible to the Republic of Austria and since the decision at issue failed to provide sufficient reasons on that point, a burden of proof such as that imposed by the General Court cannot, in any event, be justified.

90.For the reasons set out in points 85 to 89 above, the present complaint is, in my opinion, well founded.

Failure to calculate the grant equivalent

91.The Republic of Austria argues that, assuming that the aid at issue consists, as the General Court finds, in the provision of the new reactors, the Commission should have calculated a grant equivalent in order to quantify the aid and to assess its proportionality.

92.In that regard, without it being necessary to take a position on the question debated between the parties of whether the Commission is always obliged to quantify a grant equivalent, I will merely recall that, in paragraphs 188 to 190 of the judgment under appeal, the General Court observed (i) that the aid at issue included a revolving credit facility of EUR 10 billion and an additional amount of EUR 2.5 billion paid by the Hungarian State, that credit facility being intended to finance 80% of the confirmed investment costs and the additional amount the remaining 20%; (ii) that all the costs liable to be attached to the investment were included in those amounts; and (iii) that the decision at issue was limited to authorising the project notified by Hungary, excluding any increase in those amounts, such that ‘any financing in excess of EUR 12.5 billion would constitute an alteration to the existing aid’, which would have to be assessed in accordance with Article 4 of Regulation No 794/2004. The General Court therefore seems to have started from the premiss that the aid element corresponded to the entire financing granted by the Hungarian State, as described in the decision at issue, and, therefore, that it was, in any event, not necessary, in the circumstances of the present case, to calculate a grant equivalent. As argued by Hungary in particular, the Republic of Austria does not put forward any specific arguments capable of calling into question the reasoning followed by the General Court and of supporting its view that, in the absence of a calculation of the grant equivalent, it was not possible to assess the proportionality of the aid at issue. Therefore, the present complaint cannot, in my view, succeed.

Failure to determine the external financing costs

93.The Republic of Austria complains that the General Court, in paragraph 185 of the judgment under appeal, rejected its argument that, in the absence of a determination of the external financing costs (interest on borrowings) of the debt that a market investor would have to pay under market conditions, the Commission had been unable correctly to determine the amount of aid at issue and thus assess its proportionality.

94.In that regard, suffice it to note that, in support of that complaint, the Republic of Austria merely reiterates the arguments put forward in its application to the General Court, to which it refers. In those circumstances, and since the contested elements of the judgment under appeal are not referred to precisely, the present complaint is, to my mind, inadmissible. In any event, as the Commission states in its pleadings, in a situation such as that in the present case, where (i) the loan was taken out by the State at the interest rates specified in the decision at issue, (ii) an advantage for Paks II was found to exist, (iii) the decision concerned financing which did not exceed EUR 12.5 billion and (iv) according to the Republic of Austria itself, there was no subsidised loan, it was for the Republic of Austria to explain, as the General Court asserted in paragraph 185 of the judgment under appeal, why, without a calculation of the external financing costs, the Commission was unable to assess the proportionality of the aid at issue. Therefore, the present complaint cannot, in any event, succeed.

Conclusions on the second and fourth grounds of appeal

95.In my view, on the basis of the foregoing, only the complaint raised in the second and fourth grounds of appeal, which was analysed in points 85 to 89 above, should be upheld.

Outcome of the analysis

96.If, as I propose, the Court were to declare the first ground of appeal and the complaint analysed in points 85 to 89 above, raised in the second and fourth grounds of appeal, to be well founded, the appeal should be upheld and the judgment under appeal should be set aside.

Conclusion

97.In view of the foregoing considerations, I propose that the Court should find the first, second and, in part, the third part of the first ground of appeal, as well as the complaint analysed in points 85 to 89 above, raised in the second and fourth grounds of appeal, to be well founded. Accordingly, I propose that the Court should uphold the appeal and set aside the judgment under appeal.

* * *

(1) Original language: French.

(2) T‑101/18, EU:T:2022:728; ‘the judgment under appeal’.

(3) OJ 2017 L 317, p. 45; ‘the decision at issue’.

(4) OJ 2016 C 8, p. 2; ‘the opening decision’.

(5) In recitals 279 to 287 of the decision at issue, in Section 5.3.2, entitled ‘Compliance with Union law other than State aid rules’, the Commission responded to the observations raised by numerous interested parties concerning the compliance of the notified measure with, inter alia, Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p.243).

(6) C‑594/18 P, EU:C:2020:742; ‘the judgment in Austria v Commission’.

(7) In recitals 281 to 284 of the decision at issue, the Commission ruled out the existence of an inextricable link between the possible infringement of Directive 2014/25 and the object of the aid. In paragraph 283, it stated, inter alia, that ‘a possible inobservance of public procurement rules in the case at hand might produce distortive effects on the market of nuclear construction works. However, the object of the investment aid to Paks II is to enable it to generate electricity without bearing the investment costs for the construction of nuclear installations. Therefore, no additional distortive effect on the competition and trade on the electricity market has been identified that would be created by the non-compliance with [Directive 2014/25], as regards the direct award of the construction works to JSC NIAEP.’

(8) 74/76, EU:C:1977:51; ‘the judgment in Iannelli & Volpi’.

(9) See judgment in Iannelli & Volpi, paragraphs 12 and 13.

(10) 73/79, EU:C:1980:129; ‘the judgment in Commission v Italy’.

(11) See judgment in Commission v Italy, paragraphs 8 and 9.

(12) C‑225/91, EU:C:1993:239; ‘the judgment in Matra’.

(13) See judgment in Matra, paragraphs 41 to 45.

(14) See judgment in Matra, paragraph 42.

(15) See, inter alia, judgments of 19 September 2000, Germany v Commission (C‑156/98, EU:C:2000:467, paragraph 78); of 3 May 2001, Portugal v Commission (C‑204/97, EU:C:2001:233, paragraph 41); of 19 September 2002, Spain v Commission (C‑113/00, EU:C:2002:507, paragraph 78), of 12 December 2002, France v Commission (C‑456/00, EU:C:2002:753, paragraph 30); and of 15 April 2008, Nuova Agricast (C‑390/06, EU:C:2008:224, paragraph 50).

(16) See judgment of 15 April 2008, Nuova Agricast (C‑390/06, EU:C:2008:224, paragraph 51).

(17) See, to that effect, inter alia, judgments of 13 March 1979, Hansen (91/78, EU:C:1979:65, paragraphs 9 and 10); of 24 November 1982, Commission v Ireland (249/81, EU:C:1982:402, paragraph 18); of 7 May 1985, Commission v France (18/84, EU:C:1985:175, paragraph 13); of 5 June 1986, Commission v Italy (103/84, EU:C:1986:229, paragraph 19); and of 20 March 1990, Du Pont de Nemours Italiana (C‑21/88, EU:C:1990:121, paragraph 20).

(18) Paragraphs 44 and 45 of that judgment.

(19) See judgment of 31 January 2023, Commission v Braesch and Others (C‑284/21 P, EU:C:2023:58, paragraph 96; ‘the judgment in Braesch and Others’).

(20) See, most recently, judgment of 30 May 2024, Ryanair v Commission (C‑353/21 P, EU:C:2024:437, paragraph 65).

(21) C‑598/17, EU:C:2019:352, paragraph 48; ‘the judgment in A-Fonds’).

(22) See judgments of 30 May 2024, Ryanair v Commission

(C‑353/21 P, EU:C:2024:437, paragraph 91), and in <i>Braesch and Others</i>, paragraphs 99 and 100, as well as the orders of 15 July 2024, <i>YU</i> v <i>Commission</i> (C‑233/24 P, EU:C:2024:625), and of 14 December 2023, <i>CAPA and Others</i> v <i>Commission</i> (C‑742/21 P, EU:C:2023:1000).

23See, in addition to the judgment in <i>Iannelli &amp; Volpi</i>, the judgments in <i>A-Fonds</i>, paragraphs 47 and 48; of 7 March 2024, <i>Fallimento Esperia and GSE</i> (C‑558/22, EU:C:2024:209, paragraphs 60 and 61); and in <i>Braesch and Others</i>, paragraphs 104, 107 and 108.

Since the judgment in <i>Braesch and Others</i>, the Court has also relied on that test to assess the status of ‘interested party’ for the purposes of Article 108(2) TFEU, of persons who consider themselves to be affected by the granting of aid, and therefore their standing to bring proceedings against a Commission decision adopted at the preliminary examination stage of the aid. Whether those persons’ interests have been affected ‘must be assessed in the light of the binding effects of the decision authorising the aid, whether they result from the implementation of the aid as such, their object or their inextricably linked procedures’ (see judgment of 5 September 2024, <i>PBL and Abdelmouine</i> v <i>Commission</i> (C‑224/23 P, EU:C:2024:682, paragraph 59 and the case-law cited).

25See, for example, judgment in <i>Braesch and Others</i>, paragraph 100.

26See judgment in <i>Braesch</i>, paragraphs 98 and 103 and the case-law cited.

27See judgments of 25 June 1970, <i>France</i> v <i>Commission</i> (47/69, EU:C:1970:60, paragraph 4), and of 21 October 2003, <i>Van Calster and Others</i> (C‑261/01 and C‑262/01, EU:C:2003:571, paragraphs 46 and 47).

See judgment of 27 October 1993, <i>Scharbatke</i> (C‑72/92, EU:C:1993:858, paragraphs 18 and 20). See, also, judgment of 23 April 2002, <i>Nygård</i> (C‑234/99, EU:C:2002:244, paragraph 53). In the latter judgment, the Court held that the discriminatory nature of the parafiscal charge at issue could in the present case be found by the national court even though the aid scheme of which that levy forms part had been authorised by the Commission, in particular with a view to remedying, if necessary, infringements of EU law which had not been confirmed by that institution (see paragraph 60 of that judgment).

29See judgment in <i>Braesch and Others</i>, paragraphs 99 and 100.

31See judgment in <i>Braesch and Others</i>, paragraph 103.

32See judgment in <i>Braesch and Others</i>, paragraph 81, and orders of 15 July 2024, <i>YU</i> v <i>Commission</i> (C‑233/24 P, EU:C:2024:625, paragraphs 51 and 52), and of 14 December 2023, <i>CAPA and Others</i> v <i>Commission</i> (C‑742/21 P, EU:C:2023:1000, paragraph 93).

33See judgment in <i>Iannelli &amp; Volpi</i>, paragraphs 14 and 17 and point 3 of the operative part.

34See Opinion in <i>A-Fonds</i> (C‑598/17, EU:C:2018:1037, point 81).

That definition was not adopted by the Court in the judgment in <i>A-Fonds</i>; instead, the Court merely stated that the residence condition, such as that laid down in the scheme for the refund of dividend tax at issue in the main proceedings, appeared to be ‘indissolubly linked to the very object of the exemption measures at issue, which is to the advantage of national undertakings only’, which was a ‘necessary condition for the achievement of the objective and functioning of that aid scheme’ (see paragraphs 49 to 51 of that judgment).

36I note, however, that several recent judgments of the Court tend to use the two concepts interchangeably. See, for example, judgments of 30 May 2024, <i>Ryanair</i> v <i>Commission</i> (C‑353/21 P, EU:C:2024:437, paragraph 92), and of 6 June 2024, <i>Ryanair</i> v <i>Commission</i> (C‑441/21 P, EU:C:2024:477, paragraph 81).

37For example, the objective of common interest chosen by the Commission for the notified measure was ‘the promotion of new nuclear investments’ (see recital 301 of the decision at issue).

38In that regard, suffice it to note that, in the judgment in <i>Austria</i> v <i>Commission</i>, the Court held that the infringement of EU law at issue in the case giving rise to that judgment stemmed from the economic activity financed by the aid (see paragraph 45 of that judgment) and not from an aspect of it. Therefore, as argued by both the Commission and the Member States intervening in support of it, it did not need to resort to the ‘inextricable link’ test as provided for in the judgment in <i>Iannelli &amp; Volpi</i>.

39See also paragraphs 36, 65 and 73 of the judgment under appeal.

40See recital 16 of the decision at issue.

41See, inter alia, recital 325 of the decision at issue.

42See recitals 324 and 328 of the decision at issue.

43See recitals 300 and 304 of the decision at issue.

44See, to that effect, judgment of 10 September 2024, <i>Commission</i> v <i>Ireland and Others</i> (C‑465/20 P, EU:C:2024:724, paragraph 112 and the case-law cited).

45See judgment of 29 July 2019, <i>Bayerische Motoren Werke and Freistaat Sachsen</i> v <i>Commission</i> (C‑654/17 P, EU:C:2019:634, paragraph 69).

46See, to that effect, judgment of 4 October 2024, <i>Aeris Invest</i> v <i>Commission and SRB</i> (C‑535/22 P, EU:C:2024:819, paragraphs 145 and 146 and the case-law cited).

47See judgment of 10 September 2024, <i>Commission</i> v <i>Ireland and Others</i> (C‑465/20 P, EU:C:2024:724, paragraph 169 and the case-law cited).

63In recital 285 of the decision at issue, the Commission confirms that ‘in any event, Hungary’s compliance with Directive [2014/25] has been assessed in a separate procedure by the Commission where the preliminary conclusion on the basis of available information is that the procedures laid down in [that directive] would be inapplicable to the entrustment of construction works of two reactors on the basis of its Article 50(c)’.

64Such a rule takes into account the autonomy of the infringement proceedings and the State aid procedure and the fact that the Commission only has decision-making power in the latter.

65See judgment of 10 September 2024, Commission v Ireland and Others (C‑465/20 P, EU:C:2024:724).

I note that the present case, which concerns the Commission’s assessment of the compliance with EU law of an aspect of aid which is inextricably linked to its object, differs from that at issue in the case giving rise to the judgment of 23 November 2023, Ryanair and Airport Marketing Services (C‑758/21 P, EU:C:2023:917), in which, in paragraph 97, the Court stated that an implicit statement of reasons could be sufficient in that case, particularly since, in the procedure under Article 108 TFEU, interested parties other than the Member State concerned cannot seek to engage in an adversarial debate with the Commission. Indeed, in that case, the applicants were the recipients of the measures that had interrupted the limitation period, which, according to them, had been exceeded. As a result, they were able – despite a mere indication, in the decision at issue in that case, of the dates on which those measures had been adopted – to understand the reasons why the Commission had considered that those measures were capable of interrupting that limitation period (see, inter alia, paragraph 93 of that judgment). Similarly, the present case is different from that which gave rise recently to the judgment of 23 January 2025, Neos v Ryanair and Commission (C-490/23 P, EU:C:2025:32), in which, first, the matter raised concerned a decision taken at the end of the preliminary investigation phase under Article 108(3) TFEU and, second, as found by the Court, in particular in paragraphs 58 and 59 of that judgment, the judgment of the General Court under appeal in that latter case risked imposing a general obligation on the Commission to provide specific reasoning for each of the provisions and principles of EU law that could be infringed by the grant of aid.

67See judgment of 11 May 2023, Commission v Sopra Steria Benelux and Unisys Belgium (C‑101/22 P, EU:C:2023:396, paragraph 88 and the case-law cited).

68On the arguments seeking to challenge the burden of proof that the General Court placed on the Republic of Austria in paragraphs 38 and 64 of the judgment under appeal, I refer to the analysis of the second and fourth grounds of appeal.

69See paragraph 42 of the judgment under appeal.

70It is apparent from the judgment under appeal that the infringement proceedings concerned Article 40(3)(c) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1, which preceded Article 50(c)(ii) of Directive 2014/25.

71T‑356/15, EU:T:2018:439, paragraph 250.

72The Commission’s assertion that it was only in its reply that the Republic of Austria raised that complaint, rendering it inadmissible, is based, in my view, on an incorrect reading of the appeal. On that subject, see also the case-law cited in footnote 60 of this Opinion.

73See recital 40 of the decision at issue.

As regards, first, the arguments of the Commission, the Czech Republic and Hungary, seeking to challenge the impact of the purchase price of the new reactors on the assessment of the proportionality of the aid at issue, I refer to the considerations already set out in points 85 and 88 of this Opinion. Second, as regards the reference made by the Czech Republic and the Republic of Poland, in their pleadings, and by the Commission, in response to a question put to it by the Court at the hearing, to Section 5.1 of the decision at issue concerning the application of the market investor principle, the Republic of Austria was right to reply that those recitals seek to determine the existence of an advantage for Paks II and not to assess whether the aid at issue was limited to the minimum required. Although the Commission referred to Section 5.1 in recital 337 of the decision at issue, it was to clarify that, owing to market failure, it had taken the view that the entire financing for the construction of the new reactors had to be regarded as State aid. Third, the reference by Poland to paragraph 84 of the Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1) is also irrelevant, since the Commission took the view, in recital 55 of the decision at issue, that those guidelines were not applicable to the notified measure. Lastly, as regards the reference, contained, inter alia, in the written observations of the Czech Republic and the Republic of Poland, to the analysis carried out by the Commission in recitals 338 to 342 of the decision at issue, concerning the risk of overcompensation of the beneficiary, I note that that analysis differs from the one concerning the limitation of the aid to the minimum required to ensure the viability of the financed project. The same applies to the obligation for the Hungarian State to generate a return on investment from the operation of the Paks II plant, as mentioned in recital 343 of the decision at issue.

75The calculation of the gross grant equivalent, which makes it possible to ascertain the precise amount of aid in a different form to an ordinary subsidy, is necessary in particular when assessing whether thresholds such as those resulting from the application of the de minimis rule have been met: see, in that regard, Commission Regulation (EU) 2023/2831 of 13 December 2023 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid (OJ L 2023/2831).

76On the absence of such an obligation, see judgment of 12 July 2018, Austria v Commission (T‑356/15, EU:T:2018:439, paragraph 250), referred to in paragraph 184 of the judgment under appeal. However, I note that, contrary to what Hungary seems to argue, the Court did not rule on the substance of that question in its judgment in Austria v Commission (see paragraphs 129 and 130 of that judgment).

77Commission Regulation of 21 April 2004 implementing Council Regulation (EU) No 2015/1589 laying down detailed rules for the application of Article 108 TFEU (OJ 2004 L 140, p. 1).

78Recital 28 and footnote 16 of the decision at issue.

79See paragraph 190 of the judgment under appeal.