Action brought on 23 August 2011 - Ellinika Nafpigia and Hoern Beteiligungs Gesellschaft mit beschränkter Haftung v Commission

(Case T-466/11)

Language of the case: Greek

Parties

Applicants: Ellinika Nafpigia AE (Skaramagka, Greece) and Hoern Beteiligungs GmbH (Kiel, Germany) (represented by: K. Khrisogonos and A. Mitsis, lawyers)

Defendant: European Commission

Form of order sought

annul Commission Decision C(2010) 8274 final of 1 December 2010 relating to State aid CR 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005) - which constitutes a measure implementing Decision C(2008) 3118 final of 2 July 2008 (OJ 2009 L 225, p. 104) concerning recovery of State aid ('the recovery decision') - as supplemented, defined and elucidated by the documents and other material on the file;

order the Commission to pay the applicants' costs;

in the alternative, interpret, in a binding manner erga omnes and in particular as against the Commission, Decision C(2010) 8274 final of 1 December 2010, as supplemented by the documents and other material on the file, with the meaning defined more specifically in the application, in such a way that it is compatible with Article 17 of the recovery decision upon which the contested decision is founded, with Article 346 TFEU, pursuant to which the contested decision was adopted, with the principles of certitude and of legal certainty and with the rights to freedom of establishment, to freedom to provide services, to freedom to carry on a business and to property, which are infringed by the current interpretation and application of the contested decision by the Commission and the Greek authorities.

Pleas in law and main arguments

In support of the action, the applicants rely on four pleas in law.

By the first plea for annulment, the applicants submit that the Commission has infringed Article 17 of the recovery decision, since the contested decision affects the military activities of Ellinika Nafpigia AE (Hellenic Shipyards; 'HSY') in so far as it requires HSY to sell all of its assets which are today not absolutely necessary, but are nevertheless partly or relatively necessary or can become absolutely necessary in the future for HSY's military activities.

By the second plea for annulment, the applicants submit that the contested decision is being misinterpreted - applying Article 346 TFEU incorrectly - as meaning that HSY's military activities encompass only the current orders of the Greek Navy and not every non-commercial activity of HSY, such as future orders of the Navy or of Greek or other armed forces and any other activity for the construction, supply or repair of defence material.

By the third plea for annulment, the applicants assert that the contested decision, in breach of the principles of certitude and legal certainty, leaves substantial ambiguities as regards its personal, temporal and material scope, while at the same time it confers a very wide discretion on its implementing bodies, in such a way that it is interpreted as laying down obligations and prohibitions that are not envisaged in the recovery decision, are imposed on persons not liable, are imprecise and inapplicable, or go beyond what is reasonable as determined by the protection of fundamental rights and freedoms. Furthermore, the applicants consider that the contested decision, in breach of the principles of certitude and legal certainty, is partly incapable of implementation since it imposes measures which, de facto and/or de jure, cannot be implemented in their entirety or in part, while the six-month time-limit imposed for its implementation was also unfeasible and unrealistic from the beginning.

By the fourth plea for annulment, the applicants contend that the contested decision imposes obligations and prohibitions on HSY and its shareholders in a way that infringes their fundamental rights of freedom of establishment, of freedom to provide services, of freedom to carry on a business and to property, partly without a legal basis therefor and, in any event, going beyond what is necessary to achieve the objective of recovery.

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