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Action brought on 11 September 2008 - Elliniki Nafpigokataskevastiki and Others v Commission

(Case T-384/08)

Language of the case: English

Parties

Applicants: Elliniki Nafpigokataskevastiki AE Chartofylakeiou (Skaramangas,Greece) Howaldtswerke-Deutsche Werft GmbH (Kiel, Germany) and ThyssenKrupp Marine Systems AG (Hamburg, Germany) (represented by: U. Soltész, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Order the annulment of Article 16 of the decision of the Commission of 2 July 2008 on the Measures No C 16/2004 (ex NN29/2004, CP 71/2002 and CP 133/2005) implemented by Greece in favour of Hellenic Shipyards; and

Order the Commission to pay the applicant's costs of the present proceedings.

Pleas in law and main arguments

By means of their application the applicants seek partial annulment of Commission Decision C (2008)3118 final, of 2 July 2008, concerning sixteen measures implemented by the Greek State in favour of Hellenic Shipyards SA ("HSY") and, in particular, annulment of Article 16 of the said decision according to which the Commission decided that the Indemnification Guarantee granted by HSY's previous owner, Hellenic Bank of Industrial Development ("ETVA"), to the consortium² that acquired HSY through a share purchase agreement (Howaldtswerke-Deutsche Werft and Ferrostaal), in the event of state aid recovery from HSY, constitutes illegal state aid and should be stopped immediately.

The applicants claim that the Commission incorrectly considered that the Indemnification Guarantee in the privatisation agreement was given at a time when ETVA was under state control. According to the applicants, the Indemnification Guarantee was only validly agreed after ETVA's privatisation and therefore constituted a measure negotiated between private parties, not imputable to the Greek State and therefore cannot be regarded as state aid.

Moreover, the applicants submit that the Commission's allegation that the two separate clauses in the addendum to the purchase sharing agreement constituted one overall mechanism through which HSY would benefit is erroneous. In fact, the applicants submit that the two guarantees were granted independently of each other. In addition, the applicants contend that the Commission wrongly considered that HSY benefited from the Indemnification Guarantee since, having regard to the facts of the case, only Piraeus Bank could be considered to have benefited form it.

The applicants argue that the Commission was wrong in considering that an economic advantage was conferred on HSY by virtue of the Indemnification Guarantee which (i) is a standard term under private law, (ii) was given after a dully carried out assessment and (iii) conforms to the conduct of a private vendor.

Further, it is submitted that the Commission misapplied Article 88(2) EC and Article 14(1) of Regulation (EC) No 659/1999 in targeting Elliniki Nafpigokataskevastiki, which was not the beneficiary of the aid, by ordering it to stop the Indemnification Guarantee.

Also, the applicants claim that the Commission's argument alleging circumvention of the effet utile of recovery wrongly relies on the assumption that circumvention occurs by the simple granting of the Indemnification Guarantee.

Finally, the applicants submit that the Commission misapplied Article 296 EC in that it does not allow HSY to carry on a certain degree of civil activities which are of an ancillary nature in order to sustain the operation of the whole shipyard.

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¹ - This consortium founded Elliniki Nafpigokataskevastiki in order to harbour the holding in HSY.

² - HDW is wholy owned by ThyssenKrupp Marine Systems which also acquired Ferrostaaal's shares in Elliniki Nafpigokataskevastiki in 2005