Language of document : ECLI:EU:T:2014:567

ORDER OF THE GENERAL COURT (Seventh Chamber)

5 June 2014 (*)

(Action for annulment — Competition — Operation of video lottery terminals — Grant by Greece of an exclusive licence — Decision rejecting a complaint — Act not amenable to review — Inadmissibility)

In Case T‑416/13,

Stanleybet Malta Ltd, established in Valetta (Malta),

Stanley International Betting Ltd, established in Liverpool (United Kingdom),

represented by R.A. Jacchia, I. Picciano, A. Terranova, F. Ferraro, G. Dellis, P. Kakouris and I. Koimitzoglou, lawyers,

applicants,

v

European Commission, represented by F. Ronkes Agerbeek and R. Striani, acting as Agents, and subsequently by F. Ronkes Agerbeek,

defendant,

APPLICATION for annulment of the decision contained in the letter of the Commission of 10 June 2013 by which it informed the applicants of its decision to reject their complaint and to close the file regarding Case COMP/39.981 — Stanleybet Group 2/OPAP,

THE GENERAL COURT (Seventh Chamber),

composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        The applicants, Stanleybet Malta Ltd and Stanley International Betting Ltd, are two suppliers of gaming and betting services with activities in a number of Member States.

2        On 25 January 2012, the applicants filed a complaint with the European Commission on the formal basis of Article 7(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1). In that complaint, they requested that the Commission take the necessary measures to put an end to certain conduct of Organismos Prognostikon Agonon Podosfairou AE (Organisation of Football Prognostics; OPAP) which, they contended, constituted one or more abuses of a dominant position within the meaning of Article 102 TFEU.

3        The applicants maintained that that abusive conduct was linked to the adoption of Greek Law No 4002/2011 of 4 August 2011 relating to the regulation of the gaming market (‘the Law on Gaming’). Pursuant to that law, the Hellenic Republic granted OPAP an exclusive licence permitting the operation of 35 000 video lottery terminals (‘VLTs’) by means of an agreement concluded between that State and OPAP on 4 November 2011 (‘the VLT Agreement’). According to the scheme provided for in the Law on Gaming, 16 500 VLTs were to be installed in OPAP agencies. With regard to the remaining 18 500 VLTs, OPAP could grant operating licences for those terminals to independent licensees.

4        The applicants maintained in their complaint that the Law on Gaming would, on the one hand, allow OPAP to strengthen and benefit from the dominant position it historically enjoyed in the land-based betting and gaming sector and, on the other hand, lead it or encourage it to abuse that dominance by exploiting the licencing system introduced by the Law on Gaming in the neighbouring sector of gaming machines and online gaming. They were of the view, however, that the abuse stemmed from the autonomous conduct of OPAP.

5        By letter of 17 December 2012, the Commission sent to the applicants the provisional conclusions of its assessment of the complaint. In that letter, the Commission indicated that it did not intend to pursue the investigation. It stated in that regard that, following a preliminary analysis, it considered that the Law on Gaming and the VLT Agreement constituted State measures for the purposes of Article 106 TFEU. According to the Commission, in order to determine whether there was a combined infringement of Articles 106 TFEU and 102 TFEU, an actual or potential abuse of a dominant position had to be established. In the present case, the Commission considered that the information submitted by the applicants in their complaint did not allow for a concrete abuse, committed or liable to be committed by OPAP, to be identified, in relation to the adoption of the Law on Gaming and the VLT Agreement. The Commission also indicated that, if it did not receive new information from the applicants within four weeks, it would close the file.

6        By letter of 15 January 2013, the applicants responded to the Commission’s provisional assessment, reiterating their standpoint.

7        By letter of 10 June 2013, the Commission informed the applicants that the comments and observations they had submitted in their letter of 15 January 2013 had not led it to reconsider its position and that it had closed the complaint file (‘the contested letter’). In that letter, the Commission repeated that the complaint essentially centred on the provisions of the Law on Gambling and that it had therefore assessed it as a complaint filed on the basis of Article 106 TFEU, read in conjunction with Article 102 TFEU.

 Proceedings and forms of order sought by the parties

8        By application lodged at the Registry of the General Court on 13 August 2013, the applicants brought the present action.

9        By separate document lodged at the Court Registry on 19 November 2013, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court. The applicants lodged their observations on that objection of inadmissibility on 13 January 2014.

10      By documents lodged at the Court Registry on 19 and 26 November 2013 respectively, the Hellenic Republic and OPAP applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

11      The applicants claim, in their application, that the Court should:

–        annul the contested letter;

–        order the Commission to pay the costs.

12      In the objection of inadmissibility, the Commission claims that the Court should:

–        dismiss the action as inadmissible;

–        order the applicants to pay the costs.

13      In their observations on the objection of inadmissibility, the applicants claim that the Court should:

–        declare the action admissible;

–        join the examination of the objection of inadmissibility to the substance of the case;

–        set new periods for the remainder of the proceedings;

–        order the Commission to pay the costs.

 Law

14      Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the substance of the case. Under Article 114(3), unless the Court decides otherwise, the remainder of the proceedings is to be oral.

15      In the present case, the Court considers that it has obtained sufficient information from examination of the documents in the file to rule on the Commission’s request, without opening the oral procedure.

16      In the objection of inadmissibility, the Commission argues that the action should be dismissed as inadmissible since the contested letter does not constitute a challengeable act. It maintains, in essence, that the complaint was in fact based solely on an infringement by the Hellenic Republic of Article 106(1) TFEU, read in conjunction with Article 102 TFEU, and not on a separate infringement of Article 102 TFEU by OPAP. In the Commission’s view, the dismissal of a complaint lodged against a Member State regarding an alleged infringement of Article 106(1) TFEU is not a challengeable act.

17      The applicants do not dispute that the Commission is free to decide how to respond to a complaint lodged against a Member State under Article 106 TFEU. They maintain, however, that their complaint was not directed at a Member State, but an undertaking, namely OPAP, and that their complaint concerned that undertaking’s autonomous commercial conduct on the basis that it constituted an infringement of Article 102 TFEU. They make reference, in that regard, to paragraphs 74, 75 and 84 to 92 of their complaint, which they claim the Commission did not rebut. In the applicants’ view, that those points concern future commercial conduct is of little significance.

18      The applicants state that OPAP remains free not to engage in abusive conduct which consists in seizing business opportunities offered by the Law on Gaming. They note, in that regard, that they had put OPAP on formal notice to refrain from such conduct. The applicants state, moreover, that nothing prevents a single complaint from denouncing both State conduct and the autonomous commercial conduct of an undertaking. In any event, it should be possible to subject the decision not to investigate a complaint or part thereof in relation to Article 102 TFEU to judicial review.

19      Under Article 106(1) TFEU, Member States are neither to enact nor maintain in force, in the case of public undertakings and undertakings to which they grant special or exclusive rights, any measure contrary to the rules contained in the Treaty, in particular those relating to competition, subject to Article 106(2) TFEU. That article has no independent application, and can apply only in combination with other provisions of the Treaty.

20      In that regard, it should be recalled that the simple fact of creating a dominant position by granting exclusive rights within the meaning of Article 106(1) TFEU is not, as such, incompatible with Article 102 TFEU. However, a Member State is in breach of the prohibitions contained in those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, cannot avoid abusing its dominant position or when such rights are liable to create a situation in which that undertaking is induced to commit such abuses (Case C‑179/90 Merci Convenzionali Porto di Genova [1991] ECR I‑5889, paragraphs 16 and 17; Case C‑41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 29; and Case C‑260/89 ERT [1991] ECR I‑2925, paragraph 37).

21      In addition, the Commission’s refusal to act under Article 106(3) TFEU following the filing of a complaint by an individual against a Member State does not constitute a challengeable act since, the Commission not being obliged to bring proceedings within the meaning of that provision, individuals cannot require it to take a position in a specific sense (Case C‑141/02 P Commission v max.mobil [2005] ECR I‑1283, paragraphs 69 and 70, and order of 23 September 2011 in Case T‑567/10 Vivendi v Commission, not published in the ECR, paragraph 16). In the area covered by Article 106(1) and (3) TFEU, the Commission enjoys a wide discretion, both in relation to the proceedings which it considers necessary to be brought and in relation to the means appropriate for that purpose (Case C‑107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I‑947, paragraph 27, and Joined Cases C‑48/90 and C‑66/90 Netherlands and Others v Commission [1992] ECR I‑565, paragraph 27).

22      It should also be recalled that Articles 101 TFEU and 102 TFEU concern only anti-competitive practices engaged in by undertakings of their own initiative (see, to that effect, Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 18 to 20; Case C‑202/88 France v Commission [1991] ECR I‑1223, paragraph 55; and Case C‑18/88 GB-Inno-BM [1991] ECR I‑5941, paragraph 20).

23      Finally, with regard to complaints directed against the conduct of an undertaking contrary to Articles 101 TFEU and 102 TFEU on the basis of Regulation No 1/2003, the complainant is entitled to submit to the court or tribunal the decision by which the Commission decides to take no further action in respect of his complaint (Case 26/76 Metro SB Groβmärkte v Commission [1977] ECR 1875, paragraph 13; Case 210/81 Schmidt v Commission [1983] ECR 3045, paragraph 14; and Case C‑282/95 P Guérin Automobiles v Commission [1997] ECR I‑1503, paragraph 36).

24      In the light of that case-law, it must be determined, in the present case, whether the applicants’ complaint sought to denounce the fact that, after the adoption of the Law on Gaming, OPAP was led, merely by exercising the exclusive rights conferred upon it, to abuse its dominant position, or whether the complaint sought to criticise OPAP’s autonomous commercial conduct constituting an abuse of a dominant position which would not arise simply out of the legal framework laid down by the Law. In the first case, the contested letter could not be considered to be a challengeable act for the purposes of the latter provision, in line with the case-law referred to in paragraph 21 above. By contrast, in the second case, the contested letter would fall to be categorised as a decision dismissing a complaint lodged under Article 102 TFEU which may be subject to an action for annulment under the fourth paragraph of Article 263 TFEU, in accordance with the case-law cited in paragraph 23 above.

25      In order to identify the true scope of a complaint, it is its content that must be focused on, rather than its form or its wording, as the applicants maintain. Whether or not a decision dismissing a complaint, such as the contested letter, is a challengeable act in the light of the requirements of the fourth paragraph of Article 263 TFEU is an objective question, the answer to which cannot depend on the form or the wording the complainants have wished to give to their complaint. The fact that the complainants have referred, in the heading of their complaint, to Article 7(2) of Regulation No 1/2003 thus does not mean that it actually constitutes a complaint for the purposes of Articles 101 TFEU and 102 TFEU.

26      In the present case, the complaint consists of three parts. The first part (paragraphs 1 to 24) contains information on the identity and on the activities of the applicants and OPAP as well as a short description of the individual complaints put forward. The second part of the complaint (paragraphs 25 to 39) describes a number of provisions of the Law on Gaming, specifying why their adoption led OPAP to strengthen its pre-existing dominant position and to abuse it. According to the applicants, those restrictive effects are felt on the whole of the Greek territory and affect trade between Member States, so that the application of Article 102 TFEU is justified. The third and final part (paragraphs 40 to 99) explains the interest of the applicants in lodging the complaint, specifies the competitive position of the undertakings concerned and seeks to substantiate an infringement of Article 102 TFEU by autonomous conduct on the part of OPAP.

27      In order to show that their complaint concerned a separate infringement of Article 102 TFEU by OPAP, the applicants make reference to paragraphs 74, 75 and 84 to 92 of the complaint.

28      The applicants list, in paragraph 74 of the complaint, a number of examples of anti-competitive conduct, which, they submit, OPAP would inevitably undertake in the non-monopolised VLT sector of the Greek gaming market. It comprises cross-subsidisation operations, the possibility of using, in that sector, goodwill and other intangible business assets, such as customer base, from which OPAP already benefits in the monopolised sector, being able to be the ‘first mover’ in the VLT sector, the possibility of amortising investments and exploiting all of its resources in the two sectors, setting the prices and conditions of sale for services offered by sub-licensees and, finally, the advantage of benefiting from economies of scale. It follows, according to paragraph 75 of the complaint, that competition in the VLT sector is distorted to the detriment of OPAP’s competitors.

29      With regard to paragraphs 84 to 92 of the complaint, the applicants make reference to OPAP’s extraordinary general meeting which was convened in order to debate the Hellenic Republic’s proposal to grant it a licence to install and operate 35 000 VLTs pursuant to Article 39 of the Law on Gaming. Those paragraphs refer to a number of documents prepared for the purposes of the meeting which outlined the financial advantages and business opportunities offered by the law. It would appear from those documents as well as from other communications and statements, including one of a director of OPAP, that OPAP intended to exploit the opportunities and privileges granted by the Law on Gaming.

30      It is therefore plain that the examples of anti-competitive conduct put forward by the applicants in their complaint sought to demonstrate that, after the adoption of the Law on Gaming, OPAP would have been led, by the mere exercise of the exclusive rights conferred upon it, to abuse its dominant position.

31      That finding also applies to several other parts of the complaint.

32      The same is true of paragraph 3 of the complaint which, by way of introduction, makes reference to the right to operate 35 000 VLTs under the Law on Gaming.

33      Similarly, in paragraph 60 of the complaint, which introduces the part concerning OPAP’s alleged autonomous anti-competitive conduct, the applicants argue that legislative measures adopted by a Member State in breach of Article 106(1) TFEU may lead an undertaking holding special or exclusive rights to infringe Article 102 TFEU. Two paragraphs further on, in paragraph 62 of the complaint, the applicants maintain also that legislative measures adopted by a Member State in breach of Article 106(1) TFEU may per se lead an undertaking holding a monopoly to abuse its dominant position.

34      Those submissions are found, additionally, in paragraph 67 of their complaint, where the applicants argue that the statutory monopoly conferred upon OPAP, as broadened and strengthened by the Law on Gaming, results in conduct or situations in contravention of Article 102 TFEU, and in paragraph 71 of the complaint, according to which the exclusive licencing system, as created by the Law on Gaming, inevitably puts OPAP in a position of abuse.

35      The applicants also claim, in paragraph 78 of the complaint, that the provisions of the Law on Gaming create a conflict of interest for OPAP. In that regard, they rely, in paragraph 81 of the complaint, on Commission Decision 2002/344/EC of 23 October 2001 on the lack of exhaustive and independent scrutiny of the scales of charges and technical conditions applied by La Poste to mail preparation firms for access to its reserved services (OJ 2002 L 120, p. 19), which was addressed to the French Republic and which involved not the undertaking holding exclusive or special rights, but the legislation adopted by that State. The applicants conclude, in paragraph 83 of the complaint, just as they had already done in paragraph 31, that, owing to the licencing system established by the Law on Gaming, OPAP will inevitably abuse its dominant position.

36      Finally, most of the case-law citations given in the complaint relate to Member State obligations under Article 106(1) TFEU (see paragraphs 60, 61, 63, 65, 68, 72 and 82 of the complaint).

37      In the light of all of the foregoing, it must be held, first, that the complaint criticised the anti-competitive effects of the Law on Gaming and that it was therefore essentially directed against the Hellenic Republic; secondly, that the paragraphs of the complaint to which the applicants refer in the context of the present action in order to illustrate the scope of their complaint consist almost exclusively of arguments based on the application of Article 106 TFEU and the obligations of the Member States which flow from it and, thirdly, that the applicants have not identified any autonomous conduct of OPAP which would be different to the mere exercise of exclusive rights conferred upon it by the Law on Gaming and which would constitute an abuse of a dominant position for the purposes of Article 102 TFEU.

38      It follows that the Commission was correct to consider that the complaint before it was based on Article 106(1) TFEU, read in conjunction with Article 102 TFEU. In accordance with the case-law referred to in paragraph 21 above, the decision not to investigate such a complaint does not constitute a challengeable act for the purposes of the fourth paragraph of Article 263 TFEU.

39      The objection of inadmissibility raised by the Commission should therefore be upheld and the action should be dismissed as inadmissible.

40      In those circumstances, there is no need to rule on the applications of the Hellenic Republic and of OPAP for leave to intervene.

 Costs

41      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.

42      Since the applicants have been unsuccessful, they must be ordered to bear their own costs and, in addition, to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      There is no need to rule on the applications of the Hellenic Republic and of the Organismos Prognostikon Agonon Podosfairou AE (OPAP) for leave to intervene.

3.      Stanleybet Malta Ltd and Stanley International Betting Ltd shall bear their own costs and pay those borne by the European Commission.

Luxembourg, 5 June 2014.

E. Coulon

 

      M. van der Woude

Registrar

 

      President


* Language of the case: English.