ORDER OF THE GENERAL COURT (Ninth Chamber)
13 November 2014 (*)
(Action for damages — Aid awarded by the Hungarian authorities to certain electricity generators — Decision declaring the aid incompatible with the internal market and ordering its recovery — Limitation period — Inapplicability of Article 102(2) of the Rules of Procedure of the General Court — Notion of continuous damage — Inadmissibility)
In Case T‑40/14,
Electrabel SA, established in Brussels (Belgium),
Dunamenti Erőmű Zrt, established in Százhalombatta (Hungary), represented by J. Philippe, lawyer,
applicants,
v
European Commission, represented by L. Armati, L. Flynn and K. Talabér-Ritz, acting as Agents,
defendant,
ACTION for damages, based on the second paragraph of Article 340 TFEU, seeking compensation for the damage allegedly incurred on account of Commission Decision 2009/609/EC of 4 June 2008 on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements (OJ 2009 L 225, p. 53),
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 Dunamenti Erőmű Zrt (‘Dunamenti’) is an electricity generator on the Hungarian electricity market which operates a power plant located approximately 30 km south of Budapest (Hungary). It is a former public undertaking which was privatised during the mid-1990s. It is approximately 75% owned by Electrabel SA, which itself forms part of the group of companies headed by GDF Suez SA. The applicant is also approximately 25% owned by Magyar Villamos Művek Zrt. (‘MVM’), a public undertaking whose activities comprise power generation as well as wholesale, transmission and retail activities on the Hungarian electricity market.
2 On 10 October 1995, shortly before its privatisation, Dunamenti entered into a long-term power purchase agreement (‘the PPA’) with MVM in respect of the ‘F blocks’ and ‘G2 block’ (‘the F blocks’ and ‘the G2 block’ respectively) of the power plant that it operates. The PPA was to expire in December 2010 in respect of the F blocks and in December 2015 in respect of the G2 block.
3 In December 1995, that is two months after the conclusion of the PPA, Dunamenti was acquired by Electrabel through a competitive and open bid process. Apart from its investment in the company, Electrabel committed to invest in the modernisation of the two power generation units covered by the PPA.
4 Like Dunamenti, other electricity generators on the Hungarian market entered into PPAs with MVM in the 1990s. Although the governing principles of these PPAs presented certain similarities, their terms and conditions differed from one PPA to the other and not all of them were entered into in a pre-privatisation context.
5 PPAs are characterised, above all, by two elements. First, they reserve for MVM all or a substantial part of the generation capacities of the power plants covered by the agreement. Secondly, the PPAs require MVM to purchase a specific minimum quantity of electricity from each power plant under PPA. There is therefore a certain minimum off-take under the PPAs for each power plant which MVM is required to purchase each year.
6 By its Decision 2009/609/EC of 4 June 2008 on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements (OJ 2009 L 225, p. 53), the Commission found that the PPAs constituted State aid incompatible with the internal market (‘the PPA decision’). Consequently, the PPAs, including inter alia the one concluded with Dunamenti, were terminated and the illegal and incompatible State aid already received by the beneficiaries since 1 May 2004 had to be recovered.
7 In order to implement the PPA decision, the Hungarian Parliament adopted on 10 November 2008 a law providing for the early termination of the PPAs by 31 December 2008, the date on which it entered into force (‘the PPA Termination Act’).
8 By application lodged at the Registry of the General Court on 28 April 2009, Dunamenti brought an action for annulment of the PPA decision, registered as Case T‑179/09. That action was dismissed by a judgment of the Ninth Chamber of the General Court (judgment of 30 April 2014 in Dunamenti Erőmű v Commission, T‑179/09, EU:T:2014:236).
9 On 21 July 2014, Dunamenti brought an appeal against that judgment of the General Court; that appeal was registered as Case C‑357/14 P.
Procedure and forms of order sought
10 By application lodged at the Court Registry on 10 January 2014, the applicants, Dunamenti and Electrabel, claim that the Court should:
– declare the action admissible;
– find that the non-contractual liability of the European Commission has been incurred for the unlawful adoption of the PPA decision;
– order the Commission to fully compensate the applicants for the damage incurred by them as a result of the early termination of the PPA in application of the PPA decision, that damage having been assessed at EUR 250 million, subject to amendment in view of future data;
– order interest to be paid on the sum sought by way of compensation from the date of the decision to be given establishing the obligation to compensate the damage at a rate of 8% per year, or at such a rate as the Court might fix in the exercise of its discretion;
– order the Commission to pay the costs.
11 By separate document lodged at the Court Registry on 17 March 2014, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court. The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs;
– in the alternative, in the event that the plea of inadmissibility is not upheld, prescribe new time-limits to enable the Commission to submit its defence, pursuant to Article 114(4) of the Rules of Procedure.
12 The applicants submitted their observations on the plea of inadmissibility raised by the Commission by document lodged at the Court Registry on 2 May 2014, by which they claim that the Court should:
– reject the Commission’s plea of inadmissibility;
– in the alternative, if the Commission’s plea of inadmissibility were to be upheld:
– declare that the limitation period would only entail the inadmissibility of the application for compensation regarding the damage that occurred between 1 and 10 January 2009;
– consequently, not issue an order of inadmissibility but rule, in the decision on the merits of the case concerning the application for compensation lodged on 10 January 2014, on the inadmissibility of that application for compensation with regard to the damage that occurred between 1 and 10 January 2009;
– order the Commission to pay the costs related to the inadmissibility claim, or if need be that the costs be shared between the applicants and the Commission pro rata for the respective durations in respect of which the application for compensation of the damage is declared admissible or inadmissible.
Law
13 Under Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without going to the substance of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that it has sufficient information from the documents on the file and that there is no need to open the oral procedure.
14 The Commission contends, in essence, that the action for damages is time-barred, given that it was brought outside of the five-year period laid down in the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union.
15 The Commission contends that, even on the assumption that all the elements giving rise to its non-contractual liability came into existence on 31 December 2008, at the time of the entry into force of the PPA Termination Act in Hungary, the applicants’ action based on its alleged non-contractual liability is time-barred as of 1 January 2014 and is therefore inadmissible.
16 The Commission contends that Article 102(2) of the Rules of Procedure, according to which ‘[t]he prescribed time-limits shall be extended on account of distance by a single period of ten days’, applies only to procedural time-limits and not to the limitation period laid down in the first paragraph of Article 46 of the Statute of the Court of Justice.
17 In that regard, the Commission contends that procedural time-limits and limitation periods are inherently different. Thus, procedural time-limits are laid down with a view to ensuring due administration of justice, clarity and legal certainty, whereas limitation periods result in the extinction of the legal action by affecting the enforceability of a subjective right which the person concerned can no longer effectively assert before the courts. Moreover, compliance with the limitation period may not be raised by a European Union Court of its own motion but must be raised by the party affected, unlike procedural time-limits, which are a matter of public policy.
18 Consequently, in the Commission’s submission, the application lodged by the applicants on 10 January 2014 in respect of damages they allegedly suffered on 31 December 2008 is time-barred.
19 The applicants contest those claims and submit that their action is admissible.
20 In the first place, they submit that, even on the assumption that the extension on account of distance provided for in Article 102(2) of the Rules of Procedure does not apply in the present case, the action would in any event be admissible, because the damage that they suffered is continuous and caused by an unlawful act maintained over time.
21 In that regard, they state that the harm suffered results from the early termination of the PPA following the entry into force, on 31 December 2008, of the PPA Termination Act and that their situation is comparable to that which gave rise to the judgment of 11 January 2002 in Biret et Cie v Council (T‑210/00, ECR, EU:T:2002:3).
22 According to the applicants, the two conditions required by the case-law in order for damage to qualify as continuous, namely (i) that the damage continues daily for a certain period of time and (ii) that it is because of the persistence of an unlawful act, are fulfilled in the present case.
23 They submit that they have suffered continuous damage from 1 January 2009 until 31 December 2015 on account of the inapplicability of the PPA from the date of its termination until the expiry dates laid down in that PPA, namely December 2010 in respect of the F blocks and December 2015 in respect of the G2 block.
24 In that regard, the applicants claim more specifically that the ‘daily’ nature of the damage is not decisive, provided that the damage is continuous, that is to say renewed in successive periods and increasing in proportion to the elapsed time (order of 4 September 2009 in Inalca and Cremonini v Commission T‑174/06, EU:T:2009:306, paragraph 57).
25 They submit that the second condition is also satisfied, in so far as the damage was triggered by the entry into force of the PPA Termination Act, which is a Hungarian act of parliament typically considered to be a kind of legal object maintained over time.
26 It follows, in their submission, that, even if the General Court were to support the Commission’s argument regarding the applicability of Article 102(2) of the Rules of Procedure, the limitation period would only entail the inadmissibility of the application for compensation regarding the damage that occurred between 1 and 10 January 2009.
27 In the second place, the applicants claim, contrary to the Commission’s submission, that the limitation period provided for in Article 46 of the Statute of the Court of Justice is also a procedural time-limit, for the purposes of Article 102(2) of the Rules of Procedure, and that the single period of ten days’ extension on account of distance provided for by that provision is therefore fully applicable in this case.
28 This follows not only from a careful reading of the Rules of Procedure, which do not distinguish between the various procedural time-limits for the purposes of the application of Article 102(2) thereof, but also from Article 101 of those rules, where the expression ‘les délais de procédure’ in French is translated as ‘any period of time … for the taking of any procedural step’ in the English version of those rules, and which refers to any period of time expressed in days, weeks, months or years, although only the limitation period laid down in Article 46 of the Statute of the Court is expressed in years. There is therefore no doubt that Article 46 of the Statute is a ‘procedural time-limit’, within the meaning of the Rules of Procedure.
29 The applicants also contest the relevance of the judgment of 8 November 2012 in Evropaïki Dynamiki v Commission (C‑469/11 P, ECR, EU:C:2012:705), relied on by the Commission in support of its arguments.
30 First, compliance with certain procedural time-limits can be raised only by the aggrieved party, and not by the Court as a matter of public policy, but the extension on account of distance applies to them nevertheless. Second, there is no general principle of law nor ‘any element in the texts’ that could support the interpretation that the extension on account of distance would only be applicable to time-limits which are a matter of public policy. Third, although limitation periods cannot, according to the Court, be based on anything other than strictly objective criteria, an extension of ten days would not detract from that objective nature.
31 Consequently, the applicants submit that, in relation to their compensation claim, none of the reasons advanced by the Court in the judgment in Evropaïki Dynamiki v Commission, paragraph 29 above (EU:C:2012:705), regarding the refusal of an application of an extension on account of distance provided for by Article 102(2) of the Rules of Procedure to the limitation period laid down in the first paragraph of Article 46 of the Statute of the Court of Justice can be applied in the present case.
32 It is necessary to examine, in the first place, the question of the applicability in the present case of the period of ten days’ extension on account of distance provided for by Article 102(2) of the Rules of Procedure, before examining whether the damage allegedly incurred by the applicants is continuous damage for the purposes of the case-law.
The applicability of Article 102(2) of the Rules of Procedure of the General Court in the present case
33 It should be borne in mind in that regard that, by the judgment in Evropaïki Dynamiki v Commission, paragraph 29 above (EU:C:2012:705), the Court of Justice upheld the order of the General Court of 22 June 2011 in Evropaïki Dynamiki v Commission, T‑409/09, ECR, EU:T:2011:299, which had rejected the applicability of Article 102(2) of the Rules of Procedure to the limitation period referred to in Article 46 of the Statute of the Court, in the following terms:
‘48 Under Article 102(2) of the Rules of Procedure of the General Court, extensions on account of distance apply to procedural time-limits and are intended to take account of the difficulties faced by parties owing to the fact that they may be a fairly long way away from the seat of the Court of Justice (see, to that effect, Case C‑137/92 P Commission v BASF [1994] ECR I‑2555, paragraph 40).
49 The limitation period provided for in the first paragraph of Article 46 of the Statute of the Court of Justice is not, however, a procedural time-limit. Those two time restrictions are, as the General Court rightly held, inherently different.
50 Procedural time-limits are laid down with a view to ensuring due administration of justice, clarity and legal certainty (see, to that effect, Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 12, and Case 191/84 Barcella and Others v Commission [1986] ECR 1541, paragraph 12). Thus, in particular, periods prescribed for bringing proceedings, such as that laid down in the sixth paragraph of Article 263 TFEU, and for bringing appeals, such as that laid down in the first paragraph of Article 56 of the Statute of the Court of Justice, are intended to ensure that administrative decisions and decisions of the courts become final and so to protect public interests. In consequence, periods prescribed for bringing proceedings are a matter of public policy and are therefore not within the discretion of the parties or the court, since compliance with them is to be examined by the European Union Court of its own motion (see, to that effect, Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21 and the case-law cited).
51 By contrast, the Court has already held that compliance with the limitation period may not be raised by a European Union Court of its own motion but must be raised by the party affected (see, to that effect, Case 20/88 Roquette frères v Commission [1989] ECR 1553, paragraph 12).
52 In contrast to procedural time-limits, the limitation period in question, by resulting in the extinction of the legal action, is a matter of substantive law since it affects the enforceability of a subjective right which the person concerned can no longer effectively assert before the courts.
53 Furthermore, the limitation period laid down in the first paragraph of Article 46 of the Statute of the Court of Justice has the function, inter alia, firstly, of ensuring protection of the rights of the aggrieved person, who must have sufficient time in which to gather the appropriate information with a view to a possible action, and, secondly, of preventing the aggrieved person from being able to delay indefinitely the exercise of his right to damages. That period thus definitively protects the aggrieved person and the person responsible for the harm.
54 Limitation therefore constitutes an objection to admissibility which, unlike procedural time-limits, is not absolute, but extinguishes the action for liability solely at the request of the defendant.
55 To that end, the first paragraph of Article 46 of the Statute of the Court of Justice lays down, in its first sentence, the duration of the limitation period. In its second sentence, that provision sets out the events which give rise to interruption of that period, namely the institution of proceedings before the Court of Justice alleging non-contractual liability on the part of the European Union, or a prior application made to the relevant institution of the European Union. Although that second sentence does indeed state the procedural effects of the interrupting events which it lists, including, in particular, a procedural act, it does not seek to impose on the aggrieved person a period within which proceedings must be brought, and thus a procedural time-limit, since that person can also interrupt the limitation period laid down in the first sentence of the first paragraph of Article 46 of the Statute of the Court of Justice by a prior application made to the relevant institution of the European Union.
56 Furthermore, the calculation of the limitation period cannot … be based on criteria which are anything other than strictly objective nor, as the General Court has rightly pointed out, can that calculation differ according to whether the interruption of that period is caused by the bringing of an action or the making of a prior application. Application of the extension on account of distance to the limitation period would have the consequence that limitation would occur at the end of a different period depending on whether the aggrieved party has chosen to bring the matter directly before the General Court or to make a prior application to the competent EU institution, something which would be at variance with the requirement of legal certainty necessary for the application of limitation periods (Commission v Cantina sociale di Dolianova and Others, paragraph 60).
57 With regard to the possible effect of paragraph 26 of the judgment of the General Court in Lefebvre and Others v Commission, relied upon by Evropaïki Dynamiki in support of its first ground for appeal, it must be noted that although, in that judgment, the extension on account of distance was taken into account and the conclusion reached that the action in question was admissible, no reasoning was given for taking it into account which is capable of affecting the foregoing assessment.
58 Finally, it must be noted that the duration of the limitation period, laid down in the first paragraph of Article 46 of the Statute of the Court of Justice, does not appear comparable to that of the periods for the bringing of an action or an appeal, with the result that it cannot be claimed that the application of an extension to that limitation period on account of distance is necessary in order to ensure genuine enjoyment of the right to damages referred to in the second paragraph of Article 340 TFEU.
59 In those circumstances, the General Court did not err in law in holding that Article 102(2) of the Rules of Procedure of the General Court does not apply to the limitation period laid down in the first paragraph of Article 46 of the Statute of the Court of Justice ... ’
34 The applicants’ arguments, which are essentially based on a literal reading of the Rules of Procedure and of Article 46 of the Statute of the Court of Justice, cannot, therefore, call in question that case-law that the extension on account of distance provided for in Article 102(2) of the Rules of Procedure does not apply to the limitation period laid down in Article 46 of the Statute of the Court, regardless of whether the limitation period can be formally classified as a ‘procedural time-limit’.
35 Moreover, the judgment of 14 September 1995 in Lefebvre and Others v Commission (T‑571/93, ECR, EU:T:1995:163), relied on by the applicants, is an isolated case which was explicitly rejected by the General Court in the order in Evropaïki Dynamiki v Commission, paragraph 33 above (EU:T:2011:299); that order was itself upheld in that respect by the Court of Justice in paragraph 57 of the judgment in Evropaïki Dynamiki v Commission, paragraph 29 above (EU:C:2012:705), as was recalled above.
36 Accordingly, it must be held that the action for damages, which was lodged on 10 January 2014, is time-barred, in so far as it was brought more than five years after the occurrence of the damage allegedly incurred by the applicants on account of the termination of the PPAs.
37 It is however necessary to examine, in a second stage, the applicants’ arguments seeking to show that the damage that they allegedly incurred is continuous damage, for which they can obtain compensation in respect of the five years preceding the bringing of the action in these proceedings, in accordance with the case-law.
The materialisation of the damage and the starting point of the limitation period laid down in Article 46 of the Statute of the Court of Justice
38 Under Article 46 of the Statute of the Court of Justice, applicable to proceedings before the General Court, proceedings against the European Union in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto.
39 Moreover, it follows from Article 268 TFEU and Article 46 of the Statute of the Court that the incurring of non-contractual liability by the Union and the right to compensation for harm suffered depend on the satisfaction of a number of conditions relating to the existence of an unlawful measure adopted by the Union institutions, actual damage and a causal relationship between them.
40 It follows from well-established case-law that the limitation period for bringing an action against the European Union to establish non-contractual liability begins to run when all the preconditions for the existence of an obligation to make good the damage are satisfied and, in particular, once the damage to be made good has materialised (order of 18 July 2002 in Autosalone Ispra dei Fratelli Rossi v Commission, C‑136/01 P, ECR, EU:C:2002:458, paragraph 30, and judgment of 19 April 2007 in Holcim (Deutschland) v Commission, C‑282/05 P, ECR, EU:C:2007:226, paragraph 29).
41 It follows that, in cases where the liability of the European Union has its origin in a legislative measure, the limitation period begins to run as soon as the injurious effects of the measure have come about (judgment in Holcim (Deutschland) v Commission, paragraph 40 above, EU:C:2007:226, paragraph 29).
42 In that context, it is necessary to determine the precise point in time when the damaging effects alleged in the application in fact came about in respect of the applicants.
43 In the present case, following the PPA decision, the Hungarian Parliament adopted the PPA Termination Act, which entered into force on 31 December 2008 and provided for the early termination of the PPA concerning the applicants.
44 The applicants submit that the damage allegedly incurred is continuous because it started to come about on the date of termination of the PPA, but continued and continues because they could have benefited on a daily basis from revenues generated from the PPA until the date on which the agreement would have expired. They therefore rely on the loss of future cash flows that the PPA would have generated between January 2009 and the expiry dates of the PPA initially foreseen.
45 The Court would however point out that the damage linked to the termination of the PPA came about with certainty at the latest on 31 December 2008, the date on which the PPA Termination Act entered into force, following the adoption, by the Commission, of the PPA decision.
46 It is from that date that the PPA, which reserved for MVM a substantial part of the generation capacities of the power plants of Dunamenti in question and required MVM to purchase from Dunamenti specific minimum quantities of electricity at a certain price to supply the consumer market in Hungary, was terminated.
47 Accordingly, the applicants were in a position, from that date, to bring an action for non-contractual liability against the Commission, since the damage linked to the termination could be assessed with sufficient certainty, even if it could not yet be precisely quantified (see, to that effect, judgments of 2 June 1976 in Kampffmeyer and Others v EEC, 56/74 to 60/74, ECR, EU:C:1976:78, paragraph 6; of 8 June 2000, Camar and Tico v Commission and Council, Joined Cases T‑79/96, T‑260/97 and T‑117/98, ECR, EU:T:2000:147, paragraphs 192 to 196, and of 23 November 2004 in Cantina sociale di Dolianova and Others v Commission, T‑166/98, ECR, EU:T:2004:337, paragraph 129 and the case-law cited).
48 That is indeed what the applicants did by bringing this action, since they initially sought the making good of the past and future damage resulting from the early termination of the PPA concerning them until the date on which the agreement would have expired, by assessing that damage, provisionally, at approximately EUR 250 million.
49 It is only in response to the plea of inadmissibility raised by the Commission that the applicants relied on the case-law according to which, where the damage was not caused immediately but recurred over a particular period as a result of an unlawful measure remaining in force, with respect to the date of the event which interrupted the limitation period, the time bar under Article 46 of the Statute of the Court of Justice applies to the period preceding that date by more than five years and does not affect rights which arose during subsequent periods (judgments of 31 January 2001 in Jansma v Council and Commission, T‑76/94, ECR, EU:T:2001:26, paragraph 78; in Biret et Cie v Council, paragraph 21 above, EU:T:2002:3, paragraphs 44 to 45, and of 21 April 2005 in Holcim (Deutschland) v Commission, T‑28/03, ECR, EU:T:2005:139, paragraph 70).
50 It should however be noted that the applicants’ situation is not, as they submit, comparable to the facts which gave rise to the cases on which they rely in support of their line of argument. In those cases, the damage occurred at regular intervals and increased as a result of an unlawful measure being maintained.
51 By way of example, in the case which gave rise to the judgment in Holcim (Deutschland) v Commission, paragraph 49 above (EU:T:2005:139), which related to bank guarantees, the bank charges increased in proportion to the number of days during which the bank guarantees were in force. In the case which gave rise to the order in Inalca and Cremonini v Commission, paragraph 24 above (EU:T:2009:306, paragraph 57), which the applicants cite in support of their proposition that damage may be continuous even if it does not recur on a daily basis, in issue was the expense of taking out the payment of guarantee policies, which were tacitly renewed annually and which, contrary to the other expenses incurred for legal advice and assistance entailed for the management of the files in question, were ongoing in nature due to the fact that the amount of that expense increased in proportion to the number of days which had elapsed (see, to that effect, judgment of 28 February 2013 in Inalca and Cremonini v Commission, C‑460/09 P, ECR, EU:C:2013:111, paragraph 81).
52 Similarly, in the case which gave rise to the judgment in Biret et Cie v Council, paragraph 21 above (EU:T:2002:3), on which the applicants also rely, the injurious effects of the embargo on American beef and veal treated with certain hormones had continued to occur for Biret International, which was prevented by law from engaging in one of its activities since its incorporation, and increased proportionally day by day on account of the continuing nature of that embargo.
53 Moreover, in the ‘milk quota’ cases relied on by the applicants (judgment of 16 April 1997 in Hartmann v Council and Commission, T‑20/94, EU:T:1997:55), the damage was not sufficiently quantifiable and foreseeable from the time that the act which gives rise to that damage was adopted, since that damage depended on the quantity of milk which could have been produced and marketed if the milk producers had not been unlawfully refused a reference quantity.
54 By contrast, in the present case, it is at the time of the termination of the PPA, which was supposed to expire in December 2010 in respect of the F blocks and in December 2015 in respect of the G2 block, that the applicants ceased to benefit from the revenues generated by the contract.
55 It is clear that the damage consisting of the non-receipt of the revenues in question is instantaneous in nature because it relates to a single event giving rise to damage, namely the termination of the PPA, and it does not increase in proportion to the elapsed time given that the duration of the agreement, prices and quantity of electricity supplied were established in advance.
56 Even if, as the applicants submit, the damage in question could not be definitively quantified, it came about with certainty from the time of the termination of the PPA and was, in view of the agreements and their predetermined duration, sufficiently foreseeable from that date. It is indeed on the basis of those elements that that damage was assessed by the applicants themselves at approximately EUR 250 million.
57 Accordingly, pursuant to the case-law mentioned in paragraph 47 above, it must be held that the damage came about with certainty in respect of the applicants at the latest on 31 December 2008, the five-year limitation period having started to run from that date.
58 Furthermore, the Court would point out that, unlike the cases mentioned above, where the damage increased because of the persistence of an unlawful act, there is in the present case no act which was found to be unlawful and which gave rise to the damage allegedly incurred by the applicants. Although the applicants have brought an appeal against the judgment of the General Court in Case T‑179/09 which dismissed their application for annulment of the PPA decision, that decision still currently benefits from the presumption that acts of the European Union are lawful (see, to that effect, judgments of 13 February 1979 in Granaria, 101/78, ECR, EU:C:1979:38, paragraph 5; of 20 September 2007 in Commission v Spain, C‑177/06, ECR, EU:C:2007:538, paragraph 36, and of 5 September 2014 in Case T‑471/11 Éditions Odile Jacob v Commission, ECR, EU:T:2014:739, paragraph 117).
59 In conclusion, the applicants’ argument that the damage relating to termination of the PPA is ongoing in nature, pursuant to the case-law mentioned in paragraphs 49 to 53 above, because it occurred until the date on which the PPA ought to have expired, cannot be upheld.
60 For all those reasons, and in view of the fact that this action for damages was brought on 10 January 2014, whereas the damage alleged by the applicants came about, at the latest, on 31 December 2008, it must be held that the action is time-barred.
61 Accordingly, this action must be dismissed as inadmissible.
Costs
62 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1. The action is dismissed;
2. Electrabel SA and Dunamenti Erőmű Zrt are to pay the costs.
Luxembourg, 13 November 2014.