ORDER OF THE GENERAL COURT (Fifth Chamber)
27 March 2012 (*)
(Action for annulment – State aid – Subsidy granted by the Greek authorities in favour of the mining company Ellinikos Xrysos consisting of the transfer of the Cassandra mines at a price lower than the real market value and exemption from taxes on that transaction – Decision declaring the aid unlawful and ordering its recovery, with interest – No legal interest in bringing proceedings – Inadmissibility)
In Case T‑261/11,
European Goldfields Ltd, established in Whitehorse, Yukon (Canada), represented by K. Adamantopoulos, E. Petritsi, E. Trova and P. Skouris, lawyers,
European Commission, represented by É. Gippini Fournier and D. Triantafyllou, acting as Agents,
APPLICATION for the annulment of Commission Decision 2011/452/EU of 23 February 2011 on the State aid C 48/08 (ex NN 61/08) implemented by Greece in favour of Ellinikos Xrysos SA (OJ 2011 L 193, p. 27),
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Background to the dispute
1 The applicant, European Goldfields Ltd, is a company incorporated under the laws of Yukon (Canada) with its registered office in Canada. It is the main shareholder of the alleged recipient of the aid, namely Ellinikos Xrysos AE Metalleion kai Viomixanias Xrysou (‘Hellas Gold’). The applicant owns 95% of the shares in Hellas Gold through its subsidiaries: 650 000 shares via European Goldfields (Greece) BV (whose shares are owned entirely by European Goldfields Mining (Netherlands) BV, itself a wholly owned subsidiary of European Goldfields Ltd) and 300 000 shares via Hellas Gold BV (a wholly owned subsidiary of European Goldfields Ltd).
2 Hellas Gold was created in December 2003 to acquire the Cassandra mines located in Halkidiki in Northern Greece, which, at the time, were owned by the company TVX Hellas SA, and which include the mining projects at Olympias, Skouries and Stratoni (‘the Cassandra mines’). The company TVX Hellas, a subsidiary of the Canadian company Kinross Gold Corp., acquired the Cassandra mines in 1995 for approximately EUR 39.8 million from the Greek State following a call for tenders. In 2003, after the mining and gold processing permits were annulled and Kinross Gold Corp. withdrew its financing, TVX Hellas filed for bankruptcy before the Greek courts.
3 On 12 December 2003 the Cassandra Mines were transferred from TVX Hellas to the Greek State for EUR 11 million, pursuant to the terms of an out-of-court settlement. On the same day the Greek State sold the Cassandra Mines, together with the mining rights and the fixed assets, to Hellas Gold for the same amount, although there was no public invitation to tender and the assets of the mines were not valued by an independent expert.
4 On 28 January 2004 the Greek law No 3220/2004 which ratified the contract of sale between the Hellenic Republic and Hellas Gold was published. Under that law, Hellas Gold was exempted from all taxes that would normally have had to be paid in respect of the transaction.
5 Following a complaint received on 9 July 2007 concerning two State aid measures granted in favour of Hellas Gold and following correspondence with the Hellenic Republic, the Commission opened a formal investigation procedure on 10 December 2008 pursuant to Article 108(2) TFEU.
6 In the context of that procedure, the applicant submitted its observations to the Commission as an interested party within the meaning of Article 1(h) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).
7 On 23 February 2011 the Commission adopted Decision C 45/08 (ex NN 61/08) (‘the contested decision’) in which it identified two measures which it found to constitute State aid incompatible with the internal market: first, the 2003 transfer of the Cassandra mines to Hellas Gold on the basis that the price was below real market value and, second, the exemption from taxes on the transaction provided for in the contract for sale. Consequently, the Commission ordered the Hellenic Republic to recover EUR 15.34 million, together with interest thereon.
Procedure and forms of order sought
8 By application lodged at the Registry of the Court on 20 May 2011, the applicant brought the present action.
9 By a separate document lodged at the Registry of the Court on 2 September 2011, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court.
10 By document lodged at the Registry of the Court on 9 September 2011, Hellas Gold applied for leave to intervene in support of the form of order sought by the applicant.
11 The applicant lodged its observations on the objection of inadmissibility on 24 October 2011.
12 The applicant claims that the Court should:
– declare the action to be admissible;
– annul the contested decision;
– order the Commission to pay the costs.
13 In its objection of inadmissibility, the Commission claims that the Court should:
– dismiss the action as being inadmissible;
– order the applicant to pay the costs.
14 Under Article 114(1) and (4) of the Rules of Procedure, if a party so requests, the General Court may make a decision on admissibility without going into the substance of the case. Pursuant to Article 114(3), unless the Court otherwise decides, the remainder of the proceedings are to be oral. The Court finds that in the present case it has sufficient information from the case-file not to open the oral procedure.
15 The Commission contends that the action is inadmissible. It submits, in essence, that although the applicant, as the main shareholder of the recipient of the aid, has third party status in relation to the contested decision, nonetheless it does not have a legal interest of its own in the annulment thereof. Because the contested decision is addressed to the Hellenic Republic and because Hellas Gold, the recipient of the aid, has brought its own action for annulment of that decision – which is, moreover, almost identical to the present action –, the applicant therefore has no legal interest in bringing proceedings for the annulment of that decision, in accordance with the criteria set out by the Court in Case T‑597/97 Euromin v Council  ECR II‑2419, paragraph 50.
16 It should be noted at the outset that, since the applicant is endowed with a legal personality, it may bring an action for annulment pursuant to the fourth subparagraph of Article 263 TFEU. However, as the contested decision was addressed to the Hellenic Republic, and not to the applicant, it must be determined whether the applicant has a legal interest in pursuing the present proceedings.
17 In that regard and in accordance with settled case-law, the admissibility of an action for annulment brought by a natural or legal person is conditional on the person concerned demonstrating a legal interest in bringing proceedings. In particular, he must be able to demonstrate a personal interest in the annulment of the contested decision. That interest must be vested and present and is evaluated as of the date on which the action is brought (see order in Case T‑78/98 Unione provinciale degli agricoltori di Firenze and Others v Commission  ECR II‑1377, paragraph 30 and case-law cited, and Case T-136/05 Salvat père & fils and Others v Commission  ECR II-4063, paragraph 34).
18 Consequently, it must be determined whether, in the present case, the applicant has demonstrated its personal interest, vested and present, in bringing proceedings against the contested decision.
19 The applicant claims, in essence, that it has a personal interest in bringing proceedings because of the negative impact of the contested decision on its financial situation, results and cash-flow and also on the basis of the guarantees that it provided in respect of Hellas Gold’s liabilities, including the aid to be recovered.
20 It is clear that the applicant’s arguments directed to showing that the contested decision will seriously affect its economic activities (see paragraph 19 above), are essentially based on the fact that it is the main shareholder of Hellas Gold.
21 In that regard, it must be noted that, as the Commission correctly pointed out, an applicant must show that it has a legal interest in bringing proceedings separate from that possessed by an undertaking which it partly controls and which is concerned by a European Union measure. Otherwise, in order to defend its interests in relation to that measure, its only remedy lies in the exercise of its rights as a member of the undertaking which itself has a right of action (Euromin v Council, cited above in paragraph 15, paragraph 50).
22 However, none of the arguments put forward by the applicant are sufficient to demonstrate that it has a legal interest in bringing proceedings separate from that possessed by Hellas Gold.
23 In the present case, the applicant does not dispute the Commission’s submissions that the present action is identical to the application for annulment of the contested decision brought by Hellas Gold in Case T‑262/11, that the two companies are represented by the same lawyers and that the substance, wording, footnotes and annexes to the applications are identical.
24 Furthermore, as the applicant acknowledged, it is clear that its shareholding interest in Hellas Gold does not of itself give it a right of action (see, to that effect, Euromin v Council, cited above in paragraph 15, paragraph 50, and the observations on the objection of inadmissibility, paragraph 5). Contrary to the applicant’s contentions, that case-law relates to whether an undertaking which partly controls an undertaking affected by a European Union measure has a separate legal interest in bringing proceedings against the measure in question and is therefore entirely applicable. It must be borne in mind that, in that case, the Court found that a mere shareholding in an undertaking which is concerned by a Council regulation imposing a definitive anti-dumping duty on some imports originating in Poland and Russia does not confer a right to bring proceedings on the undertaking which owns that shareholding. In order to defend its interests in that regard, its only remedy lies in the exercise of its rights as a member of the recipient undertaking which itself has a right of action (see paragraph 21 above).
25 The applicant claims, however, that the cumulative effect of its active participation in the administrative procedure, its 95% shareholding in Hellas Gold and its duty to protect the interests of its shareholders and its market position (which has been seriously affected by the contested decision) is to establish a legal interest in bringing proceedings.
26 Firstly, as regards the applicant’s participation in the administrative procedure, it must be borne in mind that, in accordance with settled case-law, the procedure for reviewing State aid is, in view of its general scheme, a procedure directed at the Member State responsible for granting the aid (see Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission  ECR I‑7869, paragraph 81; see also, to that effect, Case 234/84 Belgium v Commission  ECR 2263, paragraph 29). Undertakings that receive aid and the local authorities within that State which grant the aid are considered, in the same way as competitors of the recipients of the aid, only to be ‘interested parties’ in that procedure (see Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission  ECR II‑435, paragraph 122 and the case-law cited) and the case-law confers on those parties the role of sources of information (Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, paragraph 125). It is clear from that case-law that the right flowing from Article 108(2) TFEU is restricted to being involved with the investigation procedure and therefore cannot of itself constitute a legal interest for concerned parties to bring proceedings against the decision adopted at the end of the procedure (see also, to that effect and by analogy, Case T‑86/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission  ECR II‑179, paragraphs 47 and 50, and Joined Cases T‑309/04, T‑317/04, T‑329/04 and T‑336/04 TV 2/Danmark and Others v Commission  ECR II‑2935, paragraphs 137 and 139 to 146).
27 Secondly, so far as the applicant’s significant holding in Hellas Gold is concerned, it must be noted that, as stated in paragraph 24 above, a shareholding interest in a recipient of aid, irrespective of extent, does not constitute a legal interest in bringing proceedings separate from that of the recipient. Furthermore, and in any event, the applicant’s shareholding interest in Hellas Gold is only through its subsidiaries, that is to say European Goldfields Mining (Netherlands) BV and Hellas Gold BV (see paragraph 1 above). The fact that the applicant is the main shareholder, and therefore has a majority interest, in Hellas Gold cannot alter that conclusion (see, to that effect, Euromin v Council, cited above in paragraph 15, paragraph 50).
28 Thirdly, concerning its duty to protect the interests of its shareholders and its market position, the applicant claims, in essence, that recovery of the subsidy ordered by the contested decision has had a negative impact on its financial position. In that regard, it must be noted that the applicant does not claim, either in the application or in its observations on the objection of inadmissibility, that the contested decision is capable of threatening its current or future solvency. Moreover, the applicant did not refer to any action pending before the national courts concerning the recovery of the aid concerned, whereby the liability of the applicant is at issue (see, to that effect, Case T‑138/89 NBV and NVB v Commission  ECR II‑2181, paragraph 33; Case T‑141/03 Sniace v Commission  ECR II‑1197, paragraph 26; and Salvat père & fils and Others v Commission, cited above in paragraph 17, paragraph 47).
29 Fourthly, it must be borne in mind that an economic operator must demonstrate a personal interest, vested and present, in bringing proceedings against the contested decision. If the interest which a party bringing proceedings claims concerns a future legal situation he must demonstrate that the prejudice to that situation is already certain (see, to that effect, NBV and NVB v Commission, cited above in paragraph 28, paragraph 33). That is not the position here, however. In this case, the applicant relies only upon a future and uncertain situation, which may occur if an action is brought on the basis of the guarantees. It is clear that the guarantees were agreed between the applicant and third parties in exchange for investment funds obtained from those third parties which the applicant invested in its subsidiary, Hellas Gold. A possible action for recovery of the aid at issue brought by the Hellenic Republic against Hellas Gold pursuant to the contested decision would not therefore automatically result in those guarantees being invoked against the applicant. Therefore that argument cannot be accepted.
30 Lastly, it must be found that the Resolution of the Board of Directors of European Goldfields of 17 October 2011, relied on by the applicant, according to which the applicant undertakes to be jointly and severally liable for the sums Hellas Gold may be obliged to pay as a result of any action for recovery of the aid at issue, was adopted after the application was lodged and cannot therefore constitute a legal interest to bring proceedings vested at the date on which the action was brought, that is to say 20 May 2011 (see paragraphs 17 and 29 above).
31 It follows from all the foregoing that the applicant has not demonstrated a personal interest, vested and present, in bringing proceedings against the contested decision. The application must therefore be declared to be inadmissible.
32 In those circumstances, there is no need to adjudicate on the application for leave to intervene by Hellas Gold.
33 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 applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
1. The action is dismissed as being inadmissible.
2. European Goldfields Ltd shall pay the costs.
3. There is no need to adjudicate on the application for leave to intervene by Ellinikos Xrysos AE Metalleion kai Viomixanias Xrysou.
Luxembourg, 27 March 2012.