Judgment of the General Court (Sixth Chamber) of 13 February 2012 --
   Budapesti Ero"mu" v Commission
   (Joined Cases T-80/06 and T-182/09)

   State aid -- Wholesale electricity market -- Favourable terms granted
   by a Hungarian public undertaking to certain power generators under
   power purchase agreements -- Decision to initiate the procedure laid
   down in Article 88(2) EC -- Decision declaring the aid incompatible
   with the common market and ordering its recovery -- New aid -- Private
   investor test

   1.                     Actions for annulment -- Actionable measures --
   Measures producing legal effects -- Commission decision to open a
   formal investigation procedure into a State measure in the course of
   implementation and to classify it provisionally as new aid --
   Admissibility (Arts 87(1) EC, 88(2) and (3) EC and 230 EC) (see
   paras 37-39, 41)

   2.                     State aid -- Existing aid and new aid --
   Accession of a new Member State to the European Union -- Distinction by
   reference to the specific rules established in Annex IV of the Act of
   Accession -- Possibility of classifying as new aid a measure not
   initially constituting State aid -- Advantageous conditions granted to
   certain Hungarian electricity producers -- Classification as new aid
   (Arts 87(1) EC and 88(1) and (3) EC; Act of Accession of 2003, Annex
   IV; Council Regulation No 659/1999, Art. 1) (see paras 50, 51, 54-56,
   59)

   3.                     State aid -- Concept -- Assessment according to
   the private investor test -- Purchasing agreements for electricity
   guaranteeing to electricity producers a minimum purchase quantity and
   the remuneration of fixed costs and capital -- Included (Art. 87(1) EC)
   (see paras 65, 66, 69, 71, 77-79, 82)

   4.                     State aid -- Effect on trade between Member
   States -- Adverse effect on competition -- Criteria for assessment --
   Liberalised sector (Art. 87(1) EC) (see paras 95-97)

   5.                     State aid -- Commission decision finding aid
   incompatible with the common market and ordering its recovery --
   Possible for the Commission to leave to national authorities the task
   of calculating the exact amount to be recovered -- Indication of a
   repayment methodology in the final decision -- State aid in the
   electricity market (Art. 88 EC; Council Regulation No 659/1999,
   Art. 14(1)) (see paras 106-110, 113-115)

   6.                     State aid -- Examination by the Commission --
   Purchasing agreements for electricity guaranteeing to electricity
   producers a minimum purchase quantity and the remuneration of fixed
   costs and capital -- Adoption of a single decision for all the
   purchasing agreements after examining the similarities of all the
   agreements and their specific elements -- Lawfulness (Art. 87(1) EC)
   (see paras 129-131)

   7.                     Actions for annulment -- Grounds -- Misuse of
   powers -- Meaning (Art. 230 EC) (see para. 140)

   8.                     State aid -- Commission decision to open a
   formal investigation procedure in respect of aid -- Duty to state
   reasons -- Scope (Arts 88(2) and (3) EC and 253 EC; Council Regulation
   No 659/1999, Art. 6) (see para. 143)

   Re:

   APPLICATION, in Case T-80/06, for annulment of the Commission's
   decision, notified to Hungary by letter of 9 November 2005, to initiate
   the procedure laid down in Article 88(2) EC in relation to State aid
   C 41/2005 (ex NN 49/2005) -- Hungarian Stranded Costs, and, in Case
   T-182/09, for annulment 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).

   Operative part

   The Court:

   1.

   Dismisses the actions;

   2.

   Orders Budapesti Ero"mu" Zrt to pay the costs.