JUDGMENT OF THE GENERAL COURT (Second Chamber)
11 September 2014 (*)
(State aid — Greek casinos — System providing for a levy of 80% on admission fees of different amounts — Decision declaring the aid incompatible with the internal market — Concept of State aid — Advantage)
In Case T‑425/11,
Hellenic Republic, represented by P. Mylonopoulos and K. Boskovits, acting as Agents,
applicant,
v
European Commission, represented by D. Triantafyllou, H. van Vliet and M. Konstantinidis, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision 2011/716/EU of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25).
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood, President, F. Dehousse (Rapporteur) and J. Schwarcz, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 10 December 2013,
gives the following
Judgment
Background to the dispute
1 Before 1994, three casinos operated in Greece, namely the casinos of Mont Parnès, Corfu, and Rhodes. The price of admission tickets was set by the State-owned Greek Tourism Office (Ellinikos Organismos Tourismou, ‘EOT’). This price, which was set at 2 000 Greek drachmas (GRD) (approximately EUR 6) for the casino of Mont Parnès and at 1 500 GRD for the casinos of Corfu and Rhodes, was adjusted to 2 000 GRD for the casino of Corfu in 1997. Nomos No 2160/1993 (Law 2160/1993, FEK A’ 118/19.7.1993) provided that these three casinos could continue to operate as EOT clubs until the competent authority granted them a licence.
2 Nomos No 2206/1994 (Law 2206/1994, FEK A’ 62/20.4.1994) provided for the grant of a specified number of licences. Article 2(10) of that law provided that the price of admission tickets to the casinos in certain areas would be set by Ministerial Decision and that the same Decision would determine the percentage of the price that would be paid to the State.
3 In this connection, under paragraph 1 of the apofasi tou Ypourgou Oikonomikon (Decision of the Ministry of Finance) No 1128269/1226/0015/POL.1292, of 16 November 1995, FEK B’ 982/29.11.1995 (‘the 1995 Ministerial Decision’), casino operators are obliged from 15 December 1995 to issue an admission ticket to each person according to the provisions of that Decision. Under paragraph 5 of the same article, the price of an admission ticket was set at 5 000 GRD, converted into EUR 15 pursuant to Article 31(13) of Nomos No 2873/2000 (Law 2873/2000, FEK A’ 285/28.12.2000). According to paragraph 6 of the 1995 Ministerial Decision, if persons on whom no price is imposed for reasons of promotion or social obligation are admitted to the gaming area, a ticket from a special batch shall be issued. Paragraph 7 of the 1995 Ministerial Decision also provides that casino operators shall withhold 20% of the value of the admission ticket as ‘fees for issuing the ticket and covering expenses’, in which the appropriate VAT is included, while the remaining amount constitutes ‘public fees’. According to the second subparagraph of paragraph 7 of the 1995 Ministerial Decision, for tickets issued free of charge, public fees shall be paid by reference to the price of the admission ticket established pursuant to paragraph 5 of that article.
4 After 1995, the casinos of Mont Parnès, Corfu and Rhodes continued to operate as EOT clubs. EOT was subsequently replaced as operator of the casinos of Corfu and Mont Parnès by the Hellenic Tourism Development Company (Elliniki Etaireia Touristikis Anaptyxis, ETA), wholly owned by the Greek State. The casino of Corfu continued to charge an admission fee of EUR 6 until its privatisation on 30 August 2010 and, pursuant to the 1995 Ministerial Decision, continued to pay 80% of the relevant amounts to the State. Likewise, the casino of Rhodes was issued a licence in 1996 and charged the admission fee of 5 000 GRD (EUR 15) after its privatisation in April 1999. Between the end of 2000 and 2003, the casino of Mont Parnès charged the admission fee of 1 500 GRD, which became EUR 6 from 1 January 2002 and, from the end of 2000, 80% of that fee was paid to the Greek State.
5 The six new casinos established after 1995 on the basis of Law 2206/1994, namely the casinos of Chalkidiki, Loutraki, Thessaloniki, Rio (Achaea), Xanthi (Thrace) and Syros, charged the admission fee of EUR 15, with the exception of the casino of Thessaloniki.
6 The casino of Thessaloniki (operated by the company Regency Entertainment Psychagogiki kai Touristiki AE) charged the admission fee of EUR 6 pursuant to nomothetiko diatagma 2687/1953 peri ependyseos kai prostasias kefalaion exoterikou (Law 2687/1953 concerning the investment and protection of foreign capital, FEK A’ 317/10.11.1953), which provides that undertakings established with foreign capital shall receive treatment at least as favourable as the treatment given to other similar national undertakings. The casino operator’s application asking for the price of admission tickets to the casino of Thessaloniki to be set at the same level as that of the casino of Mont Parnès, namely at EUR 6, was granted, following the Gnomodotisi 631/1997 tou Nomikou Symvouliou tou Kratous (opinion 631/1997 from the Greek Legal Council of State) of 16 October 1997. Paragraph 7 of the 1995 Ministerial Decision concerning public fees on admission tickets applied to the casino of Thessaloniki.
7 On 8 July 2009, Koinopraxia Touristiki Loutrakiou AE OTA (operator of the casino of Loutraki) lodged a complaint with the Commission of the European Communities concerning the Greek legislation on the system of casino admission fees, alleging that the system was tantamount to providing State aid to three economic operators, namely the casinos of Mont Parnès, Corfu and Thessaloniki.
8 Following exchanges of observations, the Commission initiated the formal investigation procedure by decision of 6 July 2010.
9 The Commission received comments from the Greek authorities and the interested parties.
10 On 24 May 2011, the Commission adopted Decision 2011/716/EU on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25, ‘the contested decision’).
11 In recital 9 in the preamble to the contested decision, the measure in question was defined as the fiscal discrimination that the Greek authorities implemented in favour of certain casinos by introducing a uniform 80% levy on the price of casino admission tickets and two unequal regulated prices for such tickets. Thus, the price of the admission ticket was set at EUR 6 for some casinos which the Commission classified as ‘publicly owned’ and at EUR 15 for the other casinos which it classified as privately owned. According to recital 10 in the preamble to the contested decision, the casinos of Mont Parnès, Corfu, Thessaloniki and Rhodes were referred to as beneficiaries of the measure in question.
12 The Commission subsequently found that State aid existed. In particular, in recitals 65 and 67 in the preamble to the contested decision, the Commission considered that the measure in question had effects similar to those of a fiscal measure and that it relieved the casinos charging a lower admission fee of a burden they should otherwise have borne had the taxation been non-discriminatory. The measure in question therefore provided an advantage to the relevant casinos as they paid a lower fiscal burden per person out of their respective total income. According to recital 72 in the preamble to the contested decision, the fact that customers also benefited from the lower admission fee did not prevent the measure providing an advantage to the casinos concerned. According to recitals 73 and 74 in the preamble to the contested decision, the commercial practice of offering admission tickets free of charge — 80% of the regulated price of which the casinos nevertheless had to pay to the State — reinforced the advantage at issue. The Commission relied on various items of evidence to state that this practice of free admission did not appear to be exceptional among the beneficiary casinos. Likewise, in recital 77 in the preamble to the contested decision, the Commission rejected the argument that the casinos charging a higher admission fee would be placed at an advantage. That argument ignored the fact that the casinos charging a lower admission fee were more attractive for customers and the fact that the revenue from admissions constituted only part of the total revenue of the casinos. In addition, the casino of Thessaloniki was subject to the system of lower priced admission tickets pursuant to Law 2687/1953 granting undertakings investing foreign capital the most favourable treatment granted to national undertakings (recital 78 in the preamble to the contested decision). In recitals 79 and 80 in the preamble to the contested decision, the Commission also rejected the argument that other fiscal and regulatory measures existed which offset the advantages resulting from the lower priced admission tickets and concluded that an advantage existed.
13 The Commission considered that since the State waived revenue, the advantage was therefore financed by State resources. The Commission rejected the argument that the lower priced admission fee could attract more customers and that there was no certainty that the State lost revenue because, in particular, it was the inequality itself which made the demand increase (recitals 81 to 90 in the preamble to the contested decision).
14 The Commission also considered that the measure departed from the general system established by Law 2206/1994 and by the 1995 Ministerial Decision and, therefore, was selective. Accordingly, it rejected the argument that the level of admission prices was set according to the individual circumstances of each casino, taking account of the objective of discouraging persons of low income from gambling. Moreover, the Commission considered that the measure was not justified by the nature or logic of the general system (recitals 91 to 102 in the preamble to the contested decision).
15 In addition, the Commission took the view that the condition of distortion of competition and effect on trade between Member States was satisfied in this case, irrespective of the local or regional nature of the services provided (recitals 103 to 114 in the preamble to the contested decision).
16 The Commission also submitted that the measure in question did not qualify for any of the derogations laid down in Articles 106 and 107 TFEU and stated that the Hellenic Republic had not put forward any arguments to show that the aid was compatible with the common market.
17 Furthermore, the Commission noted that the discriminatory tax treatment established in 1995 had been maintained without being notified to or approved by it. In view of the limitation period provided for in Article 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108] of the [TFEU] (OJ 1999 L 83, p. 1), the Commission stated that any aid awarded under the measure in question as of 21 October 1999, namely 10 years before the day on which it forwarded the complaint to the Hellenic Republic requesting information, was new and unlawful aid.
18 Lastly, as regards the quantification of the aid and its recovery, the Commission considered that account must be taken of the fact that the Hellenic Republic forwent fiscal revenue from the beneficiary casinos in the amount of EUR 7.20 per admission ticket, being the difference between the fee of EUR 12 per admission ticket paid to the State by the casinos charging EUR 15 for entry and the fee of EUR 4.80 per admission ticket paid to the State by the casinos charging EUR 6 for entry. The Commission also stated that account must be taken of the individual situation of each casino and, particularly for the casinos of Mont Parnès and Corfu, of the fact that, between 21 October 1999 and the end of 2000, the admission fees did not appear to have given rise to a payment to the State, subject to further observations from the Greek authorities. As regards the calculation of the amount of aid to be recovered, the Commission pointed out that it was not in possession of sufficient data in order to provide an accurate estimation of the amounts involved and stated that it was therefore confining itself to finding that an obligation to recover the aid in question existed, leaving it to the national authorities to calculate the exact amounts on the basis of the guidance set out in its decision. It is apparent from recital 146 in the preamble to the contested decision that the amounts to be recovered consist mainly in the difference between the EUR 4.80 per admission ticket paid by the casinos charging an admission fee of EUR 6, of the one part, and the EUR 12 per admission ticket paid by the casinos charging an admission fee of EUR 15, of the other part, namely EUR 7.20 per admission ticket issued.
19 The operative part of the contested decision is worded as follows:
‘Article 1
The State aid implemented by the Hellenic Republic and consisting of the fiscal discrimination put into place in favour of certain casinos through the implementation of several simultaneous, partially mandatory, legal provisions concerning
– the fixing of a uniform 80% levy on the price of admission tickets, and
– the setting of two unequal regulated prices of admission tickets at EUR 6 and EUR 15 respectively for publicly and privately owned casinos,
has been unlawfully put into effect by the Hellenic Republic in breach of Article 108(3) of the Treaty on the Functioning of the European Union and is incompatible with the internal market since it has placed the following beneficiary casinos: Regency Casino Mont Parnès, Regency Casino Thessaloniki and Corfu Casino (given that Rhodes Casino stopped being a beneficiary in April 1999) at an undue competitive advantage.
Article 2
1. The Hellenic Republic shall recover from the beneficiary casinos the incompatible aid referred to in Article 1 which was granted since 21 October 1999.
2. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery.
3. The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) 794/2004.
4. The Hellenic Republic shall cancel all outstanding fiscal discrimination provided under the aid referred to in Article 1 with effect from the date of adoption of this Decision.
Article 3
1. Recovery of the aid referred to in Article 1 shall be immediate and effective.
2. The Hellenic Republic shall ensure that this Decision is implemented within 4 months following the date of notification of this Decision.
Article 4
1. Within 2 months following notification of this Decision, the Hellenic Republic shall submit the following information to the Commission:
(a) the list of beneficiaries that have received aid under the scheme referred to in Article 1 and the total amount of aid received by each of them under the contested measure, calculated in accordance with the guidance contained in this Decision;
(b) the total amount (principal and recovery interests) to be recovered from each beneficiary;
(c) a detailed description of the measures already taken and planned to comply with this Decision;
(d) documents demonstrating that the beneficiary has been ordered to repay the aid.
2. The Hellenic Republic shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiary.
Article 5
This Decision is addressed to The Hellenic Republic.’
Procedure and forms of order sought by the parties
20 By application lodged at the Registry of the General Court on 3 August 2011, the Hellenic Republic brought the present action.
21 The contested decision is also the subject of four other actions lodged at the Registry of the General Court on 29 July 2011 by Etaireia Akiniton Dimosiou AE (ETAD, formerly Ellinika Touristika Akinita AE, ETA); on 9 December 2011 by Regency Entertainment Psychagogiki kai Touristiki; on 10 January 2012 by Elliniko Kazino Parnithas AE, operator of the casino of Mont Parnès since 2003; and on 20 January 2012 by Athens Resort Casino Holding SA, shareholder of 51% of the shares of the casino of Mont Parnès since 2010. These actions, registered under case numbers T‑419/11, T‑635/11, T‑14/12 and T‑36/12, respectively, are connected to the present case. Furthermore, Koinopraxia Touristiki Loutrakiou, complainant undertaking in the administrative procedure, was granted leave to intervene in support of the Commission in those cases by orders of the President of the Second Chamber of the General Court of 4 May and 12 December 2012.
22 By letter of 7 August 2012, the applicants in Cases T‑635/11, T‑14/12 and T‑36/12 requested the joinder of Cases T‑419/11, T‑425/11, T‑635/11, T‑14/12 and T‑36/12 for the purposes of the oral procedure and the decision closing the proceedings pursuant to Article 50 of the Rules of Procedure of the General Court.
23 By letter of 3 September 2012, the Commission lodged its observations while indicating that it did not have any objections to that joinder in principle. It also indicated that it was not applying for confidential treatment.
24 By letter of 4 September 2012, the Hellenic Republic stated that it objected to the joinder of those cases. It also stated that, in the event of joinder, certain documents in the case would have to be regarded as confidential.
25 By separate letter of 4 September 2012, the Hellenic Republic lodged an application for confidential treatment of certain parts of the documents in the case, which it identified, with regard to any third party intervener or third party intending to intervene in the cases at issue. It attached a non-confidential version of its pleadings.
26 On 16 September 2013, the General Court decided not to join the present case to Cases T‑419/11, T‑635/11, T‑14/12 and T‑36/12.
27 By order of the President of the Second Chamber of the General Court of 9 October 2013, the company Elliniko Casino Kerkyras AE was granted leave to intervene in support of the form of order sought by the applicant in Case T‑419/11, in accordance with Article 116(6) of the Rules of Procedure.
28 Upon hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure. At the hearing on 10 December 2013, the parties presented oral arguments and answered the questions put to them by the General Court.
29 The Hellenic Republic contends that the General Court should:
– annul the contested decision;
– order the Commission to pay the costs.
30 The Commission contends that the General Court should:
– dismiss the action;
– order the Hellenic Republic to pay the costs.
Law
Legal interest in bringing proceedings
31 The Commission submits that the Hellenic Republic does not have an interest in bringing proceedings. In its view, in the present economic situation, the contested decision enables the Hellenic Republic to claim quasi-tax revenue from the casinos in question and benefits rather than harms it. The Commission contends that the fact that the Hellenic Republic is a privileged party relieves it of the obligation to prove that it is directly and individually concerned by the contested decision, but does not confer on it a legal interest in bringing proceedings.
32 The Hellenic Republic disputes that line of argument.
33 The Court recalls that, regarding the concept of legal interest in bringing proceedings relied on by the Commission, the Treaty draws a clear distinction between the right of the institutions and Member States to bring an action for annulment and that of legal persons and individuals. All Member States have the right to contest the legality of decisions of the Commission by means of an action for annulment, without having to establish any legal interest in bringing proceedings. A Member State need not therefore prove that an act of the Commission which it is contesting produces legal effects with regard to that Member State in order for its action to be admissible (order in Case C‑208/99 Portugal v Commission [2001] ECR I‑9183, paragraphs 22 and 23, and Joined Cases T‑309/04, T‑317/04, T‑329/04 and T‑336/04 TV 2/Danmark and Others v Commission [2008] ECR II‑2935, paragraph 63.
34 In the present case, having regard to the provisions of the Treaty and in the light of the case-law, the Hellenic Republic is — solely by virtue of its status as a Member State — entitled to bring an action for annulment without having to show that it has a legal interest in bringing proceedings.
35 Consequently, the plea of inadmissibility raised by the Commission must be rejected.
Substance
36 The Hellenic Republic relies on four pleas in law. The first plea is based on an infringement of Article 107(1) TFEU. The second plea alleges that the statement of reasons is inappropriate, deficient and contradictory. By its third and fourth pleas, raised in the alternative, the Hellenic Republic claims an infringement of Article 14 of Regulation No 659/1999 concerning the recovery of the aid, on the ground that the aid is not sought from the actual beneficiaries and that recovery is contrary to the principles of legitimate expectations and proportionality (third plea) and that the calculation of the amounts to be recovered is incorrect (fourth plea).
37 As regards the first plea in law based on an infringement of Article 107(1) TFEU, it should be recalled that this provision provides that any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.
38 According to the case-law, the classification as ‘aid’ within the meaning of Article 107(1) TFEU requires all of the conditions set out in that provision to be fulfilled. Thus, for a national measure to be classified as State aid, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; and fourth, it must distort or threaten to distort competition (see Case C‑399/08 P Commission v Deutsche Post [2010] ECR I‑7831, paragraphs 38 and 39 and the case-law cited).
39 It is also apparent from settled case-law that the concept of aid embraces not only positive benefits, such as subsidies, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (Case C‑387/92 Banco Exterior de España [1994] ECR I‑877, paragraph 13, and Case C‑6/97 Italy v Commission [1999] ECR I‑2981, paragraph 15).
40 It has been held that a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom the tax exemption applies in a more favourable financial situation than other taxpayers constitutes State aid within the meaning of Article 107(1) TFEU (see Banco Exterior de España, paragraph 39 above, paragraph 14; Italy v Commission, paragraph 39 above, paragraph 16; and judgment of 9 September 2009 in Joined Cases T‑230/01 to T‑232/01 and T‑267/01 to T‑269/01 Diputación Foral de Álava and Others, not published in the ECR, paragraph 135, confirmed by judgment of 28 July 2011 in Joined Cases C‑474/09 P to C‑476/09 P Diputación Foral de Vizcaya v Commission, not published in the ECR).
41 Furthermore, the nature of the objectives pursued by State measures and their justification have no bearing whatsoever on whether such measures are to be classified as State aid. It is consistent case-law that Article 107 TFEU does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (see Case C‑409/00 Spain v Commission [2003] ECR I‑1487, paragraph 46 and the case-law cited).
42 It is also apparent from the case-law that the onus is on the Commission to demonstrate that the measure constitutes State aid (Joined Cases T‑239/04 and T‑323/04 Italy v Commission [2007] ECR II‑3265, paragraph 119).
43 The Court has also stated that State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Court must in principle, having regard both to the specific features of the case before it and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see Case C‑83/98 P France v Ladbroke Racing and Commission [2000] ECR I‑3271, paragraph 25, and Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 111).
44 The question whether, in the present case, the Commission correctly applied the concept of aid within the meaning of Article 107(1) TFEU must be assessed in the light of the above principles.
45 By the first part of its first plea, the Hellenic Republic denies that the system of admission fees under examination involves the grant of an advantage through State resources.
46 At the outset, it is necessary to explain the characteristics of the system in question, as evidenced by the legislation considered by the Commission. This explanation is necessary because it serves to understand the economic functioning of the system in question and, consequently, to assess its effects on the undertakings to which it applies.
47 It should be recalled that, according to Article 2(10) of Law 2206/1994 (see paragraph 2 above), the Decision of the Minister of Finance sets the price of the admission tickets to the casinos and the ‘percentage to be paid to the State’. In that respect, paragraph 7 of the 1995 Ministerial Decision (see paragraph 3 above) provides that each casino shall withhold 20% of the admission price as fees for issuing the ticket and covering expenses, the remainder constituting public fees which must, according to paragraph 10 of that Decision, be paid to the State each month.
48 Accordingly, it must be stated — as the Hellenic Republic pointed out — that in the context of the admission fees system forming the subject-matter of the contested decision, the casinos are required to collect the fees in question from their customers who access the gaming areas and pay those fees to the state each month, whilst withholding a percentage of the fees as consideration for that activity.
49 It is apparent from recital 9 in the preamble to the contested decision that the Commission described the measure at issue as the simultaneous application of national provisions concerning the fixing of a uniform 80% levy on the price of admission tickets to the casinos and the setting of two unequal regulated prices for such tickets. The effect of this measure is that the casinos required to charge an admission fee of EUR 15 pay the State EUR 12 per admission (80% × EUR 15), while the other casinos only pay the State EUR 4.80 per admission (80% × EUR 6), which amounts to a difference of EUR 7.20 per admission. Nevertheless, the fact remains — as is apparent from paragraphs 47 and 48 above — that this description does not explain the characteristics of the system under examination in that, even though the casinos are required to charge the admission fees in full, only 20% of those fees constitute revenue in their finances, the remaining 80% constituting, from the outset, public fees which the casinos must pay to the State each month. However, this incorrect description of the system cannot automatically result in the annulment of the contested decision. In the light of, in particular, the case-law cited in paragraph 41 above, since national legislation such as that at issue may have the effect of providing a selective advantage for the purpose of Article 107(1) TFEU, it is necessary to examine whether an advantage such as that described in the contested decision is conferred in the present case.
50 As is apparent from recitals 66, 69 and 70 in the preamble to the contested decision, the Commission considers that the measure under examination provides an advantage to the casinos charging an admission fee of EUR 6 because they are relieved of a burden which they would otherwise have to bear. It takes the view that these casinos enjoyed an advantage similar to a reduction in the tax base, since the levy they had to pay for each admission was set at a lower level compared to that imposed on other casinos. The contested decision states that the measure in question constitutes an advantage for the beneficiary undertakings because they have to pay less in fiscal charges for each customer admitted.
51 By its first plea, the Hellenic Republic challenges the validity of this line of reasoning.
52 The Court considers that, in the present case, the Commission has not proven the existence of an advantage in favour of the casinos charging an admission fee of EUR 6.
53 First of all, it is apparent from the measure in question that the casinos which charge an admission fee of EUR 6 are required to pay the State EUR 4.80 per admission (80% × EUR 6), while the casinos which charge an admission fee of EUR 15 must pay the State EUR 12 per admission (80% × EUR 15). Thus, it is true — as the Commission contends — that the casinos falling within the first category must pay the State EUR 4.80, which is two and half times less per admission ticket than the amount of EUR 12 which must be paid by the casinos falling within the second category.
54 However, this observation derives from the fact that the same ratio ties the prices of the admission tickets in both categories. In particular, before paying the State its fee of 80% of the value of the admission tickets sold, the casinos which the Commission regarded as beneficiaries of the disputed measure charge their customers two and a half times less per admission compared to the admission price charged by the other casinos (EUR 6 instead of EUR 15). Likewise, the fees for issuing tickets and covering expenses withheld by the casinos charging an admission fee of EUR 6 (EUR 6 — EUR 4.80 = EUR 1.20) are also two and a half times less than those received by the casinos charging an admission fee of EUR 15 (EUR 15 — EUR 12 = EUR 3).
55 Therefore, as the Hellenic Republic points out, it is apparent from the measure in question that the amounts paid to the State by the casinos in respect of public fees on the admission tickets are simply a proportion of what each casino receives as admission fees. Accordingly, in contrast to recital 69 in the preamble to the contested decision, the measure under examination does not amount to a reduction in the tax base, since the sums to be paid by each casino amount to 80% of all admission fees actually collected. Although, in that respect, the Commission refers in its defence to Diputación Foral de Álava and Others v Commission, paragraph 40 above, it should be noted that the measure at issue in those cases differed from the measure before the Court in this case. In those cases, the relevant aid measure involved applying a reduction of 99, 75, 50 or 25% to the positive tax base resulting from the beneficiary undertakings’ economic activity. Consequently, the beneficiary undertakings paid less tax than would otherwise have been the case had the tax been calculated in proportion to their income resulting from the pursuit of their economic activity. By contrast, as indicated above, the situation is different in the present case since the levy of 80% paid to the State by all of the casinos is calculated in proportion to what they actually received in admission fees on the tickets sold.
56 The Commission’s argument that the difference between the revenue received for one admission by the casinos charging an admission fee of EUR 15 and the revenue received for one admission by the casinos charging an admission fee of EUR 6, which is EUR 1.80 (EUR 3 — EUR 1.20), is four times less than the difference between the tax to be paid to the State for one admission by the casinos falling within the first category and the tax to be paid to the State by the casinos falling within the second category, which is EUR 7.20 (EUR 12 — EUR 4.80), does not cast doubt on that finding. Indeed, this observation derives directly from the application of the 80% rate and from the ratio of 4:1 between that rate and the 20% rate of revenue in respect of fees for issuing tickets and covering expenses.
57 In those circumstances, the fact that, as a result of the measure under examination, the casinos charging an admission fee of EUR 6 pay less to the State than the casinos charging an admission fee of EUR 15 is not sufficient to demonstrate the existence of an advantage in favour of the casinos falling within the first category.
58 The Commission has thus failed to demonstrate the existence of an accounting advantage to the benefit of the casinos charging an admission fee of EUR 6.
59 Next, it is apparent from the documents before the Court, as clarified at the hearing, that the advantage relied on by the Commission in the present case consists solely in this accounting difference, pursuant to which the casinos charging an admission fee of EUR 6 pay less to the State than the other casinos.
60 In particular, first, in recital 67 in the preamble to the contested decision, the Commission considered that those casinos had been given an advantage and relied on the fact that they had ‘effectively paid a lower fiscal burden per person out of their respective total income’. In the last sentence of that recital, the Commission also stated that this total income includes ‘not only their admissions revenue (revenues made solely from the price of admission tickets), but also that from their other sources of income, such as gambling, accommodation, bar and restaurant services, shows etc. (total revenues)’.
61 However, when questioned on that point at the hearing, the Commission made it clear that the concept of total income of the casino was not to be taken into account as an element of the definition of the advantage in this case. It stated that the last sentence of recital 67 in the preamble to the contested decision referring to the total income simply meant that the revenue from admission tickets accounted for only a small part of the income of the casinos and did not concern the advantage as such. Consequently, in the Commission’s opinion, that sentence should not be interpreted as meaning that, with the same budget, the customers of a casino charging an admission fee of EUR 6 would have more to spend on other services. The Commission also stated that the advantage in the present case was based entirely on the accounting difference between the EUR 6 admission ticket and that priced at EUR 15, 80% of which is payable to the State.
62 It should be added that the existence of a selective advantage in this case cannot, in any event, be substantiated by reference to a vague link between, of the one part, the obligation to pay 80% of the admission fees to the State and, of the other part, the activities not affected by that obligation, which generate the ‘total income’ of the casinos. In particular, above all, as regards the existence of such an advantage, Article 107(1) TFEU requires an assessment of whether, under a particular regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (Joined Cases C‑106/09 P and C‑107/09 P Commission and Spain v Government of Gibraltar and United Kingdom [2011] ECR I‑11113, paragraph 75). Consequently, first of all, the concept of ‘total income’ is not relevant in the present case, since it includes income which is not subject to the obligation to pay 80% of the admission fees to the State. Next, in the absence of a definition of that concept, which appears to act as a denominator, and without any associated figures, it is impossible in practical terms to determine whether any advantage exists. Lastly, it is apparent from recital 146 in the preamble to the contested decision that the amounts which the Commission has ordered to be reimbursed consist in the difference between the EUR 4.80 per admission ticket paid to the State by the casinos charging an admission fee of EUR 6, of the one part, and the EUR 12 per admission ticket paid to the State by the other casinos, of the other part. Thus, the concept of ‘lower fiscal burden per person paid out of the total income’ is, on any view, irrelevant as regards the assessment of the existence of an advantage.
63 Second, in reply to a question from the Court concerning the concept of attractiveness for customers referred to in recital 77 in the preamble to the contested decision, the Commission stated during the hearing that this concept was not to be taken into account as an element of the definition of the advantage either.
64 Recital 77 in the preamble to the contested decision is worded as follows:
‘Greece also contended that because casinos keep 20% of the unequal admission price, the advantage is for casinos with a higher price that cash in a net revenue of EUR 3, compared to the EUR 1,2 for the public casinos. This contention is however in fact misleading, since it ignores two key facts to understand in full the true anti-competitive effects of the measure. On the one hand, the setting by regulation of the prices of tickets, including the admission tax, at a lower level for certain casinos, makes them more attractive for customers, thus … deviating demand from the pattern that would prevail if casinos would compete only on their own merits based on the individual scope and quality of the services offered and … all other things equal, increasing artificially their level of admissions. On the other hand, as previously explained, the revenues from admissions are only a limited proportion of the total revenues that a customer attracted by a casino generates for the undertaking and out of which the casinos have to pay the admission tax.’
65 In particular, the Commission stated at the hearing that recital 77 in the preamble to the contested decision responded to the arguments put forward by the Greek authorities but that, without any economic analysis, the aspects relating to the distortion of competition and the attractiveness of the lower price did not constitute an element of the advantage in this case.
66 Even if, in the case of State aid requiring the involvement of State resources through which an advantage is granted, the attractiveness of a lower admission fee could constitute an element of that advantage, the fact remains that the contested decision does not contain any statistical and, in consequence, economic analysis of such attractiveness for customers from that perspective. Furthermore, it is apparent from recital 146 in the preamble to the contested decision that the amounts in respect of which the Commission ordered recovery do not amount to an advantage of that kind, on account of the method of calculation used.
67 It follows that the advantage claimed by the Commission in the present case is limited to the difference between the amounts paid by the casinos to the State for each admission ticket sold.
68 As noted in paragraphs 52 to 58 above, the fact that, as a result of the measure under examination, the casinos charging an admission fee of EUR 6 pay less to the State than the casinos charging an admission fee of EUR 15, but the amounts paid are directly proportionate, is not sufficient to demonstrate the existence of an advantage in favour of the casinos falling within the first category.
69 The Commission’s other arguments do not cast doubt on that finding.
70 First, the Commission submits in its defence that the measure in question provides a cash-flow advantage to the casinos charging a lower admission fee.
71 However, the Commission fails to demonstrate the existence of a cash-flow advantage, to which, moreover, the contested decision does not refer. It is not denied that EUR 6 and 15 are normally charged upon the admission of customers to the gaming areas of the casinos and that 80% of those sums are payable to the State every month. Therefore, ex hypothesi, in the casinos which charge an admission fee of EUR 6, the amounts collected for every admission ticket sold before payment of the public fees are proportionately lower than those collected for every admission ticket sold by the other casinos. Accordingly, the fact that a casino falling within the first category only has to pay the State EUR 4.80 when the price of the admission ticket is EUR 6, instead of EUR 12 when the price of an admission ticket is EUR 15, does not constitute a cash-flow advantage, since the amounts to be paid for the admission tickets sold are equal to 80% of the admission fees received and these fees are collected by the casinos before their obligation to pay 80% of them to the State arises. Likewise, the fact that the casinos which charge an admission price of EUR 6 retain 20% of the price of the admission ticket sold, that is EUR 1.20, as fees for issuing the ticket and covering expenses, does not constitute a cash-flow advantage for those casinos compared to the casinos which charge an admission price of EUR 15, quite the contrary.
72 It also follows from recitals 66 and 146 in the preamble to the contested decision that the concept of advantage on which that decision is based consists in the difference of EUR 7.20 paid per admission ticket, depending on whether the casino charges an admission fee of EUR 15 or 6. That concept is qualitatively different from a cash-flow advantage, which essentially consists in varying the conditions under which a debt must be paid, depending on the debtor, which is not the case here.
73 It follows that the argument based on the cash-flow advantage must therefore be dismissed.
74 Second, the Commission cites the case of the free admission tickets and claims that the gratuitous nature of the admission accentuates the loss of profit for the State. In particular, in recital 73 in the preamble to the contested decision, it submits that this commercial practice of free admission further reinforces the advantage, since the cost of the admission is notably higher for the casinos that pay EUR 12 than for the casinos that only have to pay EUR 4.80 out of the total revenue of their business. In recital 74 in the preamble to the contested decision, the Commission disputes the argument of the Greek authorities that the practice of granting free admission is exceptional. It refers to evidence in the form of publicly available information (for example, leaflets offering free access distributed in newspapers and on the Internet) which shows that the customary practice is to offer free admission to any customer on certain days of every week. The Commission concludes that the practice of free admission does not appear to be exceptional among the beneficiary casinos.
75 It should be recalled that paragraph 6 of the 1995 Ministerial Decision provides for the possibility of granting free admission for promotional purposes or for reasons of social obligation. In those circumstances, although the casinos do not charge an admission fee, they are required to pay the State 80% of the statutory value of the admission tickets issued. Thus, the casinos charging an admission fee of EUR 15 must pay the State EUR 12 for each free admission, while the casinos charging an admission fee of EUR 6 only pay EUR 4.80 for each free admission.
76 Consequently, in the case of free tickets, the casinos charging an admission fee of EUR 6 are placed at an advantage, since they pay less in fees to the State than the casinos charging an admission fee of EUR 15 in respect of the same admission fee received (EUR 0).
77 However, it should be noted that the observation on the commercial practice of free admission is used by the Commission to assert that the alleged advantage described in recitals 66 to 69 in the preamble to the contested decision is thus ‘reinforced’ (paragraph 73 in the preamble to the contested decision). In the contested decision, the case of the free tickets is merely presented as a factor which bears out the existence of that advantage. As is apparent from paragraphs 49 to 68 above, the system of admission fees under examination does not confer such an advantage on casinos which charge an entrance fee of EUR 6.
78 Furthermore, it should be noted that the Commission does not, in principle, criticise the possibility open to the Member State to provide that free admission tickets may be issued in so far as this is done for promotional purposes or for reasons of social obligation. However it does, essentially, take issue with the Greek authorities for having allowed the issuance of free admission tickets to go beyond the exception laid down in the 1995 Ministerial Decision. Since the casino admission fees system does not confer an advantage within the meaning of Article 107(1) TFEU as regards admission tickets sold, and since the Member State concerned can permit tickets to be issued free of charge for specific and justified reasons, such as for promotional purposes and for reasons of social obligation, it is reasonable for that Member State to require — as an additional condition — that the fees it would otherwise have been paid are also paid to it in the case of free tickets. Against that background, it is for the Commission to show that, in actual fact, the casinos issued too many free tickets compared to the number of tickets which would permit the objective of the 1995 Ministerial Decision to be attained, so that their decision to allow unrestricted access to their gaming areas does not comply with the conditions imposed under national legislation.
79 However, in the present case, the information to which the Commission refers in recital 74 in the preamble to the contested decision describes a casino which offers free admission from Sunday to Thursday from 7am to 8pm as from 10 January. Without further information on, in particular, the practices of other casinos and customer traffic on the days and at the times concerned, it is not possible to conclude that the offer of free tickets at issue amounts to an infringement of the conditions laid down in the 1995 Ministerial Decision.
80 Therefore, the argument based on the existence of a separate and specific advantage deriving from the free tickets must also be dismissed.
81 Third, in recital 78 of the preamble to the contested decision, the Commission submits that ‘the existence of advantage in the fiscal discrimination is even recognised by the relevant national provisions themselves’. It refers to the case of Thessaloniki casino, which was subject to an admission fee of EUR 6 under Law 2687/1953 (paragraph 6 above). In the Commission’s view, the Greek authorities applied that law to Thessaloniki casino because it was the most favourable treatment given to national undertakings.
82 It should be recalled that Law 2687/1953 provides that undertakings established with foreign capital shall receive treatment at least as favourable as the treatment given to other similar national undertakings. In this case, the casino operator’s application asking for the price of admission tickets to the casino of Thessaloniki to be set at the same level as that of the casino of Mont Parnès, namely at EUR 6, was granted following opinion 631/1997 from the Greek Legal Council of State of 16 October 1997. The Greek Legal Council of State took the view, inter alia, that the casino of Thessaloniki was in the same position as the casino of Mont Parnès, since both pursued their business in the two biggest cities in Greece.
83 However, the mere fact that, in this instance, the casino of Thessaloniki applied for and secured the lower admission fee on the basis of Law 2687/1953 does not invalidate the reasoning leading to the conclusion that the existence of an advantage within the meaning of Article 107(1) TFEU has not been proven in the present case (paragraphs 52 to 68 above). Accordingly, the Commission’s argument that the advantage in question is recognised by the relevant national provisions themselves must be dismissed.
84 The Commission’s arguments must therefore be rejected.
85 It follows from the foregoing that the Commission has not demonstrated that the measure in question provided an advantage within the meaning of Article 107(1) TFEU to the casinos that charged an admission fee of EUR 6.
86 Therefore, the first part of the first plea in law, alleging that no advantage was granted by the measure in question, must be upheld.
87 Lastly, as regards the possible non-payment of the admission fees (80% of EUR 6, or EUR 4.80) by the casinos of Corfu and Mont Parnès in respect of the period from 21 October 1999 to the end of 2000, to which reference is made in recitals 85 and 143 in the preamble to the contested decision, the Commission did not take a final position on whether such non-payment actually occurred, leaving it to the Greek authorities to confirm or deny same in the context of the recovery provided for in the contested decision. Since the Commission did not consider in that decision whether and to what extent such non-payment, viewed in isolation, met all of the conditions of Article 107(1) TFEU, it follows that, as the first part of the first plea in law has been upheld, the contested decision must be annulled in its entirety.
88 Pursuant to the case-law cited above (see paragraph 38 above), it must therefore be concluded that the Commission failed to prove the existence of State aid within the meaning of Article 107(1) TFEU, without there being any need to rule on the other parts of the first plea in law or on the other pleas in law.
89 The contested decision must therefore be annulled.
Costs
90 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.
91 Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Hellenic Republic.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Annuls Commission Decision 2011/716/EU of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic;
2. Orders the European Commission to bear its own costs and those incurred by the Hellenic Republic.
Delivered in open court in Luxembourg on 11 September 2014.
[Signatures]