Notice for the OJ
Action brought on 24 February 2003 by Olimpiaki Aeroporia A.E. (Olympic Airways) against the Commission of the European Communities
(Case T-68/03)
Language of the Case: Greek
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 February 2003 by Olimpiaki Aeroporia A.E. (Olympic Airways), whose seat is at 96-100 Leoforos Singrou, 11741 Athens, Greece, represented by Denis Waelbroek, Efthimios Bourtzalas, Julian Ellison, Matthew Hall, Andreas Kalogeropoulos, Kharis Tagaras and Aristidis Khiotelis, lawyers.
The applicant claims that the Court should:
(annul in whole or in part, under Articles 230 EC and 231 EC, the Commission decision of 11 December 2002 (C(2002) 4831 final) on State aid granted by Greece to the applicant;
(order the defendant to pay the costs.
Pleas in law and main arguments
The applicant is an air transport company whose head office is in Athens. By the contested decision, the Commission declared certain restructuring aid which had been granted by Greece to the applicant to be incompatible with the common market within the meaning of Article 87(1) EC, on the ground that the conditions subject to which the aid had initially been authorised by Commission Decision 1999/332/EC were no longer met. In the decision, the Commission also declared incompatible with the common market new State aid implemented by Greece in favour of the applicant in the form of tolerance of its prolonged non-payment of social security contributions, value added tax, the airport passenger tax known as "Spatosimo" and charges and rent which were payable by it to airports. The Commission required Greece to take all the necessary measures to recover from the applicant the abovementioned aid.
In support of its action, the applicant pleads:
(that the Commission committed manifest errors of assessment and appraisal, infringed the obligation to state reasons, erred in law, infringed the rules concerning the burden of proof and infringed the right to a fair hearing so far as concerns its conclusions that Greece failed to comply with certain of the undertakings entered into by it and referred to in Decisions 1999/332/EC and 94/696/EC. The applicant also pleads that Article 87(3)(c) EC was infringed or misapplied in that the Commission failed to examine sufficiently or correctly whether the aid authorised in 1998 could be considered compatible with that article.
(that the Commission committed manifest errors of assessment and appraisal, infringed the obligation to state reasons, erred in law, infringed the rules concerning the burden of proof, infringed the right to a fair hearing and offended against the principle of legal certainty so far as concerns its findings relating to the new aid purportedly granted by Greece to the applicant in the form of tolerance of non-payment of charges, tax and rent, as referred to above.
(that the Commission misused its powers since, in the applicant's submission, the motive for the contested decision is the desire that the "coup de grâce" be administered to the applicant or at least that the applicant be weakened.
(The applicant further submits that the final instalment of the State aid which had been authorised by Decision 1999/332/EC was never paid to it, an omission known to, and approved by, the Commission and constituting an amendment of the restructuring programme to which the Commission had likewise agreed. On the basis of that submission, the applicant contends that the principle of the protection of legitimate expectations and an essential procedural requirement have been breached by the Commission which now pleads breach of the original programme, when that programme, with the agreement of the Commission itself, was never completed. The applicant also pleads breach of the non bis in idem rule, arguing that the non-payment of the final instalment of the State aid constitutes a penalty imposed by the Commission, which has thus exhausted its right to impose penalties and is unable to go back.
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