Appeal brought on 21 September 2018 by the Republic of Austria against the judgment of the General Court (Fifth Chamber) delivered on 12 July 2018 in Case T-356/15, Republic of Austria v European Commission
(Case C-594/18 P)
Language of the case: German
Parties
Appellant: Republic of Austria (represented by: G. Hesse, acting as Agent)
Other parties to the proceedings: European Commission, Grand Duchy of Luxembourg, Czech Republic, French Republic, Hungary, Republic of Poland, Romania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland
Form of order sought
The appellant claims that the Court should:
set aside in full the judgment of the General Court of 12 July 2018 in Case T-356/15, Republic of Austria v European Commission;
grant, in its entirety, the application at first instance for annulment of Commission Decision (EU) 2015/658 of 8 October 2014 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station; 1
order the European Commission to pay the costs.
Grounds of appeal and main arguments
The appellant relies on five grounds of appeal.
First ground of appeal, alleging that there is no objective in the common interest of the European Union
The judgment under appeal appears to be unlawful inasmuch as, contrary to the position adopted by the General Court, the construction of a new nuclear power station does not constitute an objective in the interest of the European Union; consequently the fourth plea in law, in conjunction with the fifth part of the ninth plea in law, in which it was claimed that the promotion of nuclear energy does not correspond to a common interest, which is necessary for approval of aid in accordance with Article 107(3)(c) TFEU, should not have been rejected.
Second ground of appeal, alleging misapplication of Article 107(3)(c) TFEU
The aid measures were wrongly found to be compliant with Article 107(3)(c) TFEU. The judgment under appeal incorrectly defines the relevant economic area within the meaning of Article 107(3)(c) TFEU and wrongly omits to assess the failure of that market. The first plea in law and the first and second parts of the ninth plea in law, which related to the definition of the market and the market failure, should therefore not have been rejected.
Third ground of appeal, alleging insufficient assessment of proportionality
The judgment under appeal of the General Court wrongly endorsed the insufficient assessment of proportionality carried out by the European Commission. The European Commission’s considerations on the proportionality of the aid are neither correct nor comprehensible, with the result that the decision is invalid; in that respect, the sixth plea in law, the second complaint of the third part of the ninth plea in law and the sixth part of the ninth plea in law, by which, in essence, the insufficient nature of the review of the proportionality of the measures was pointed out, should not have been rejected.
Fourth ground of appeal, alleging prohibited operating aid
The General Court failed to recognise that the measures envisaged in support of Hinkley Point C constitute prohibited operating aid. Consequently, the third plea in law and the first complaint of the third part of the ninth plea in law, in which it was claimed that the United Kingdom’s measures should be treated as equivalent to prohibited operating aid, ought not to have been rejected.
Fifth ground of appeal, alleging insufficient determination of the aid elements and infringement of the Guarantee Notice
Lastly, the General Court, first, insufficiently determined the aid elements and, second, failed to take into account an infringement of the Guarantee Notice. In such circumstances, the fifth plea in law, the eighth plea in law and the fourth part of the ninth plea in law, which related to the inadequate determination of the aid elements and the infringement of the Guarantee Notice, should not have been rejected.
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1 OJ 2015 L 109, p. 44.