Action brought on 21 February 2018 — Austria v Commission

(Case T-101/18)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: G. Hesse, acting as Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul European 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 (notified under document C(2017) 1486), published in the Official Journal of the European Union, L 317 of 1 December 2017, p. 45; and

order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on ten pleas in law:

First plea in law: Failure to conduct a procurement procedure

First, the decision is void due to infringement of fundamental rules of procurement law, compliance with which is inextricably linked to the purpose of the aid.

Second plea in law: Misapplication of Article 107(3)(c) TFEU — Lack of an objective of common interest

Second, the Republic of Austria claims that, contrary to the view taken by the defendant, there is no common interest pursuant to Article 107(3)(c) TFEU, which is required for authorisation of the aid.

Third plea in law: Misapplication of Article 107(3)(c) TFEU — Erroneous demarcation of the economic sector and incorrect assumption of a market failure pursuant to Article 107(3)(c) TFEU

Third, the defendant erred in authorising the planned State aid pursuant to Article 107(3)(c) TFEU inasmuch as it wrongly assumes the existence of a separate market for nuclear energy and — also wrongly — assumes that there is a market or capital market failure on that market.

Fourth plea in law: Disproportionate nature of the measure

Fourth, the decision is also void because the defendant did not carry out a legally-compliant assessment of proportionality pursuant to Article 107(3)(c) TFEU: in concreto, the negative effects outweigh the positive effects.

Fifth plea in law: Undue distortions of competition which are incompatible with the internal market pursuant to Article 107(3)(c) TFEU

Fifth, the decision in question leads to a disproportionate distortion of competition and of the rules of State aid on the difference of treatment in the internal market in electricity and is therefore incompatible with EU law.

Sixth plea in law: Existence of a ‘project in difficulties’

Sixth, the applicant argues that aid for a ‘project in difficulties’ in the liberalised internal market in electricity should not have been authorised on the basis of Article 107(3)(c) TFEU.

Seventh plea in law: Strengthening or creation of a dominant market position

Seventh, the dominant market position of the Hungarian State, operating in a market economy, resulting from the aid renders that aid incompatible with the common market on the basis of Article 107(3)(c) TFEU

Eighth plea in law: Wholesale market liquidity risk

Eighth, the aid should not have been granted in light of the intrinsic risk of the reduction of market liquidity.

Ninth plea in law: Inadequate definition of the aid

Ninth, the applicant bases its action on the contention that the defendant defined the extent of the aid in an inadequate manner.

Tenth plea in law: Failure to comply with the obligation to state reasons pursuant to the second paragraph of Article 296 TFEU

Tenth, the defendant infringed its obligation to state reasons in numerous ways and in a very serious manner.

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