ORDER OF THE GENERAL COURT (Seventh Chamber)
19 March 2014 (*)
(Action for annulment — State aid — Operation of video lottery terminals — Grant of an exclusive licence by the Hellenic Republic — Decision finding no State aid — Letter addressed to the complainants — Act not open to challenge — Inadmissibility)
In Case T‑57/13,
Club Hotel Loutraki AE, established in Loutraki (Greece),
Vivere Entertainment AE, established in Athens (Greece),
Theros International Gaming, Inc., established in Patras (Greece),
Elliniko Casino Kerkyras, established in Athens,
Casino Rodos, established in Rhodes (Greece),
Porto Carras AE, established in Alimos (Greece),
represented by S. Pappas, lawyer,
applicants,
v
European Commission, represented by M. Afonso and P.-J. Loewenthal, acting as Agents,
defendant,
supported by
Hellenic Republic, represented by E.-M. Mamouna, acting as Agent,
and by
Organismos Prognostikon Agonon Podosfairou AE (OPAP), established in Athens, represented initially by K. Fountoukakos-Kyriakakos, Solicitor, L. van den Hende and M. Sánchez Rydelski, lawyers, and subsequently by M. Petite and A. Tomtsis, lawyers,
interveners,
APPLICATION for annulment of the decision allegedly contained in the Commission’s letter of 29 November 2012 relating to a complaint by the applicants concerning the existence of State aid allegedly granted by the Greek authorities to 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 — Club Hotel Loutraki AE, Vivere Entertainment AE, Theros International Gaming, Inc., Elliniko Casino Kerkyras, Casino Rodos and Porto Carras AE — are six casinos with an establishment licence in Greece, which operate, inter alia, gaming machines and games of chance.
2 On 1 December 2011 the Greek authorities, for reasons of legal certainty, notified the European Commission of two measures in favour of Organismos Prognostikon Agonon Podosfairou AE (OPAP) (the organisation which forecasts results of football matches). The first measure concerned the granting to OPAP, in return for a fee of EUR 560 million, of an exclusive licence to operate 35 000 video lottery terminals (‘VLTs’) for a period of 10 years ending in 2022 (‘the VLT agreement’). The second measure concerned the extension by 10 years, from 2020 to 2030, of the exclusive rights already granted to OPAP to operate 13 games of chance in return for payment of a fee. That extension was granted by way of an addendum to an agreement signed between the Greek State and OPAP on 15 December 2000 (‘the addendum’).
3 On 4 April 2012, the applicants lodged a complaint with the Commission. In that complaint, they alleged that the conditions under which the exclusive licence had been granted to OPAP within the framework of the VLT agreement entailed a grant to OPAP of State aid that was incompatible with the internal market. According to the applicants, the Greek State could have obtained a higher price than the EUR 560 million paid by OPAP if it had granted more than one licence to operate the VLTs and organised a public international call for tenders to award those licences. The applicants further claimed that OPAP’s profits generated by its exclusive use of the VLTs were significantly higher than they would have been if OPAP had operated on the market alongside other service providers licenced to operate the VLTs under conditions of free competition.
4 On 3 October 2012, the Commission, on the basis of Article 4(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), adopted Decision C(2012) 6777 final on ‘State aid SA.33 988 (2011/N) — Greece — Arrangements for the extension of OPAP’s exclusive right to operate 13 games of chance and the granting of an exclusive licence to operate 35 000 [VLTs] for a period of 10 years’ (OJ 2013 C 1, p. 8) (‘the decision of 3 October 2012’). In that decision the Commission found that the VLT agreement and the addendum, as amended by the Greek authorities following their initial notification, did not constitute State aid for the purposes of Article 107(1) TFEU. In particular, the Commission took the view that the measures in question ensured that OPAP would pay to the Greek State, in overall terms, at least as much as the value of the exclusive rights granted under the VLT agreement and the addendum taken together, including a reasonable return for OPAP. The decision of 3 October 2012 referred to the notification of the measures by the Greek authorities, the complaint lodged by the applicants and the grounds which they had put forward.
5 The non-confidential version of the decision of 3 October 2012 was notified by the Commission to the applicants by letter of 29 November 2012 (‘the contested letter’).
Procedure and forms of order sought by the parties
6 By application lodged at the Court Registry on 29 January 2013, the applicants brought the present action.
7 By separate document lodged at the Court Registry on 20 June 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 the objection of inadmissibility on 31 July 2013.
8 By order of 12 July 2013, the President of the Fourth Chamber of the Court granted leave to the Hellenic Republic to intervene in support of the form of order sought by the Commission. The Hellenic Republic lodged its statement in intervention, limited to issues relating to admissibility, on 30 August 2013.
9 By order of 12 September 2013, the President of the Fourth Chamber of the Court also granted leave to OPAP to intervene in support of the form of order sought by the Commission. OPAP lodged its statement in intervention, limited to issues relating to admissibility, on 25 November 2013. The applicants and the Commission lodged their observations on that statement by documents filed at the Court Registry on 13 and 16 January 2014 respectively.
10 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly assigned.
11 In their application, the applicants claim, in essence, that the Court should:
– annul the decision allegedly contained in the contested letter;
– order the Commission to pay the costs.
12 In its objection of inadmissibility, the Commission contends 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 submit, in essence, that the Court should:
– reject the objection of inadmissibility;
– annul the decision allegedly contained in the contested letter;
– order the Commission to pay the costs.
14 The Hellenic Republic contends that the Court should dismiss the action as being inadmissible.
15 OPAP contends that the Court should:
– dismiss the action as being inadmissible;
– order the applicants to pay the costs.
Law
16 Under Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without going to the substance of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral.
17 In the present case, the Court considers that it has sufficient information from the documents in the case file and that there is no need to proceed to the oral stage of the proceedings.
18 In the objection of inadmissibility, the Commission, supported by the Hellenic Republic and by OPAP, contends that the contested letter is not an act open to challenge for the purposes of the fourth paragraph of Article 263 TFEU, since its sole purpose was to notify the applicants, in accordance with Article 20(2) of Regulation No 659/1999, of the non-confidential version of the decision of 3 October 2012, which was annexed to that letter.
19 The Hellenic Republic and OPAP add that the decision of 3 October 2012 alone empowered the Hellenic Republic to implement the measures which had been notified. Therefore, even if the present action were successful, the annulment of the contested letter would have no legal effect on the approval of the measures notified to the Commission. Accordingly, the applicants have no interest in bringing proceedings to challenge the contested letter since their legal position has not been modified in any way.
20 The applicants claim, in essence, that the contested letter is not a mere notification of the decision of 3 October 2012 but also the definitive closure of their complaint, which constitutes an act open to challenge in accordance with the case‑law (Case C‑39/93 P SFEI and Others v Commission [1994] ECR I‑2681, paragraph 28, and Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraphs 29, 30 and 42). Thus, the decision of 3 October 2012 and the contested letter are, in their view, two separate acts open to challenge, each of which may be challenged by the applicants in their respective capacities as competitors and complainants.
21 It must be noted that decisions adopted by the Commission in the area of State aid are addressed to the Member States concerned. That is also the case where such decisions concern State measures to which objection has been taken in complaints on the ground that they constitute State aid contrary to the Treaties and the Commission refuses to initiate the procedure under Article 108(2) TFEU because it takes the view either that the measures complained of do not constitute State aid within the meaning of Article 107 TFEU or that they are compatible with the internal market. Where the Commission adopts such a decision and proceeds, in accordance with its duty of sound administration, to inform the complainants of that decision, it is the decision addressed to the Member State which must form the subject-matter of any action for annulment which the complainant may bring, and not the letter to the complainant (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 45, and Case T‑82/96 ARAP and Others v Commission [1999] ECR II‑1889, paragraph 28).
22 In the present case, the Commission found, in the decision of 3 October 2012, that the measures notified by the Greek authorities were not State aid for the purposes of Article 107(1) TFEU. The applicants do not dispute that the Commission, in that decision, carried out a detailed examination of the VLT agreement which they had challenged and that the existence of their complaint, as well as the grounds advanced in support of that complaint, were referred to by the Commission in the decision of 3 October 2012.
23 The non-confidential version of the decision of 3 October 2012 was communicated to the applicants in their capacity as complainants by the contested letter, in accordance with Article 20(2) of Regulation No 659/1999.
24 That letter summarised briefly the arguments which the applicants had set out in their complaint of 4 April 2012 and the amendments to the measures in question introduced by the Greek authorities after they had been notified to the Commission. The letter also set out the reasons why the decision of 3 October 2012 addressed the applicants’ concerns, with the result that, after that decision had been adopted, it was appropriate to terminate the examination of the complaint in view of the relevant rules on State aid.
25 Therefore, it must be concluded that the applicants’ complaint was rejected by the decision of 3 October 2012, that the contested letter is purely informative in nature and that it does not constitute a decision. It follows that, in accordance with the case-law referred to in paragraph 21 above, that letter is not an act open to challenge within the meaning of the fourth paragraph of Article 263 TFEU.
26 The arguments put forward by the applicants cannot invalidate that conclusion.
27 With regard, first, to the case-law relied on by the applicants, which, it is argued, recognises that letters rejecting a complaint may constitute acts open to challenge, this is not relevant to the present case. In Athinaïki Techniki v Commission, paragraph 20 above, cited by the applicants, there was no act which could have been challenged by the applicant, other than the letter addressed to the applicant rejecting the complaint. In that case the Commission had not completed the preliminary phase of examination of the aid measure complained of through the adoption of a decision on the basis of Article 4 of Regulation No 659/1999. So far as concerns SFEI and Others v Commission, paragraph 20 above, also relied on by the applicants, it must be observed that the Court of Justice in that case examined the rejection of a complaint concerning an alleged infringement of Article 102 TFEU, and not Article 107 TFEU, and there was also no decision which could have been challenged by the applicants other than the letter rejecting the complaint.
28 Secondly, with regard to the argument that the applicants were not involved or treated as interested parties in the procedure which led to the adoption of the decision of 3 October 2012, it must be held that their role as complainants was expressly acknowledged in that decision. As the decision was adopted without the formal examination procedure being opened on the basis of Article 4(2) of Regulation No 659/1999, there was no need to invite the applicants to submit their comments on the basis of Article 108(2) TFEU.
29 Thirdly, with regard to the argument that the decision of 3 October 2012 did not expressly reject the applicants’ complaint, in contrast to the contested letter, this cannot be upheld. When the Commission took the view, in the decision of 3 October 2012, that the measure notified by the Greek authorities and complained of by the applicants did not constitute State aid, it necessarily rejected definitively the applicants’ complaint. The fact that the Commission stated in the contested letter that, following the adoption of the decision of 3 October 2012, the examination of the measure challenged by the applicants in their complaint could ‘now be terminated’ does not mean that that letter constitutes a decision. As the applicants acknowledge, the reasoning of the contested letter is based on the decision of 3 October 2012. In addition, it must be observed, as the Commission does, that the grounds and arguments put forward by the applicants in this action have in reality the effect of challenging the decision of 3 October 2012.
30 Fourthly, with regard to the argument that the applicants could not have had access to the same level of judicial protection in their capacity as complainants if they had challenged only the decision of 3 October 2012, this is unfounded. Since the decision of 3 October 2012 closed the file on their complaint, the applicants could have brought an action against that decision in their capacity as complainants. In that regard, it must be noted that the applicants did in fact bring an action for annulment of the decision of 3 October 2012. In that action, registered as Case T‑58/13, the applicants put forward most of the pleas and arguments advanced in support of the present action.
31 It follows from all of the foregoing that the present action is inadmissible.
Costs
32 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.
33 As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission and OPAP, in accordance with the forms of order sought by the Commission and OPAP.
34 Pursuant to Article 87(4) of the Rules of Procedure, the Hellenic Republic must bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as being inadmissible.
2. Club Hotel Loutraki AE, Vivere Entertainment AE, Theros International Gaming, Inc., Elliniko Casino Kerkyras, Casino Rodos and Porto Carras AE shall bear their own costs and pay those incurred by the European Commission and by Organismos Prognostikon Agonon Podosfairou AE (OPAP).
3. The Hellenic Republic shall bear its own costs.
Luxembourg, 19 March 2014.
E. Coulon | | M. van der Woude |