Case T‑499/10

MOL Magyar Olaj- és Gázipari Nyrt.

v

European Commission

(State aid — Agreement between the Hungarian State and the oil and gas company MOL relating to mining fees in connection with the extraction of hydrocarbons — Subsequent change in the statutory system of fees — Decision declaring the aid incompatible with the internal market — Selective nature)

Summary — Judgment of the General Court (Second Chamber), 12 November 2013

1.      State aid — Concept — Intervention having the effect of reducing the burdens on an undertaking — Included

(Art. 107(1) TFEU)

2.      State aid — Concept — Selective nature of the measure — Criterion for appraisal

(Art. 107(1) TFEU)

3.      State aid — Concept — Agreement between a State and an economic operator not implying an element of aid — Subsequent modification of conditions external to the agreement conferring an advantageous position on the operator — Exclusion save where the agreement selective in character

(Art. 107(1) TFEU)

1.      See the text of the decision.

(see paras 52, 53)

2.      See the text of the decision.

(see para. 54)

3.      Where a Member State concludes with an economic operator an agreement which does not involve any State aid element for the purposes of Article 107 TFEU, the fact that, subsequently, conditions external to such an agreement change in such a way that the operator in question is in an advantageous position vis-à-vis other operators that have not concluded a similar agreement is not a sufficient basis on which to conclude that, together, the agreement and the subsequent modification of the conditions external to that agreement can be regarded as constituting State aid.

In the absence of such a principle, any agreement that an economic operator might conclude with a State which does not involve any State aid element for the purposes of Article 107 TFEU would always be open to challenge, where the situation on the market on which the operator party to the agreement is active evolves in such a way that an advantage is conferred on it or where the State exercises its regulatory power in an objectively justified manner following a market evolution whilst observing the rights and obligations resulting from such an agreement. However, a combination of the agreement and the subsequent modification of conditions external to it may be categorised as State aid where the terms of the agreement concluded have been proposed selectively by the State to one or more operators rather than on the basis of objective criteria laid down by a text of general application that are applicable to any operator.

In that regard, the fact that only one operator has concluded an agreement of that type is not sufficient to establish the selective nature of the agreement, since that may result inter alia from an absence of interest by any other operator.

Moreover, for the purposes of Article 107(1) TFEU, a single aid measure may consist of combined elements on condition that, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of their intervention, they are so closely linked to each other that they are inseparable from one another. In that context, a combination of elements such as that relied upon by the Commission in the contested decision may be categorised as State aid where the State acts in such a way as to protect one or more operators already present on the market, by concluding with them an agreement granting them fee rates guaranteed for the entire duration thereof, whilst having the intention at that time of subsequently exercising its regulatory power, by increasing the fee rate so that other market operators are placed at a disadvantage, be they operators already present on the market on the date on which the agreement was concluded or new operators.

(see paras 64‑67)