Case T‑169/08

Dimosia Epicheirisi Ilektrismou AE (DEI)

v

European Commission

(Competition — Abuse of dominant position — Greek market for the supply of lignite and Greek wholesale electricity market — Decision finding an infringement of Article 86(1) EC, read in combination with Article 82 EC — Grant or maintenance of rights awarded by the Hellenic Republic in favour of a public undertaking for the extraction of lignite)

Summary — Judgment of the General Court (Sixth Chamber), 20 September 2012

1.      Competition — Public undertakings and undertakings to which Member States grant special or exclusive rights — Article 86 EC — Scope

(Art. 86(1) EC)

2.      Competition — Public undertakings and undertakings to which Member States grant special or exclusive rights — Dominant position — Not incompatible per se with Article 82 EC

(Arts 82 EC and 86(1) EC)

1.      See the text of the decision.

(see para. 79)

2.      The prohibitions laid down by Article 86(1) EC are addressed to Member States, whereas Article 82 EC is addressed to undertakings, prohibiting them from abusing a dominant position. In the case of the combined application of those two provisions, infringement of Article 86(1) EC by a Member State cannot be established unless the State measure is contrary to Article 82 EC. The question therefore arises as to the extent to which an abuse, even if only potential, of the dominant position by an undertaking must be identified, that abuse having a link with the State measure.

By finding simply that an applicant, a former monopolistic undertaking, continues to maintain a dominant position on the wholesale electricity market by virtue of the advantage conferred upon it by privileged access to lignite and that that situation creates an inequality of opportunities on that market between the applicant and other undertakings, the Commission has neither identified nor established to a sufficient legal standard to what abuse, within the meaning of Article 82 EC, the State measure in question has led or could lead the undertaking concerned. The mere fact that the undertaking in question finds itself in an advantageous situation in comparison with its competitors, by reason of a State measure, does not in itself constitute an abuse of a dominant position.

(see paras 86, 93, 103)