In case C-15/14 P, Commission v MOL, the ECJ upheld the earlier judgment of the GC (Case T-499/10) which annulled a 2010 Commission decision ordering Hungary to recover alleged State aid of approximately €112 million from MOL, the Hungarian oil and gas company. The ECJ agreed that the Commission had failed to establish selectivity of the alleged aid measure. The ECJ reiterates the basic principles of selectivity and clarifies the limits of this notion and the Commission’s resulting obligations when assessing the application of provisions of general law that allow authorities some measure of discretion in individual cases. In addition, an agreement between a Member State and a company, which does not contain State aid elements at the time of its conclusion, does not automatically become State aid if following a subsequent legislative measure which also is not State aid, that company appears to be in a more favourable position than its competitors. The author argues that these are welcome clarifications of the limits of selectivity and the notion of State aid at a time where the Commission seems to be on a path of expanding State aid control beyond established grounds. The judgment further strengthens the role of the GC in carefully scrutinizing Commission decisions.
Keywords: Appeal, Notion of an aid measure, Two subsequent non-aid measures considered as aid, Selectivity, Burden of proof, Discretion of national authorities to impose charges or to grant exemptions