ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
31 March 2014 (*)
(Removal from the register)
In Case T‑338/13,
Energa Power Trading AE Promithias kai Emporias Energias, established in Athens (Greece), represented by S. Pappas, lawyer,
applicant,
v
European Commission, represented by R. Sauer and E. Gippini Fournier, acting as Agents,
defendant,
ACTION for a declaration of failure to act by the Commission in so far as it ought to have closed, within a reasonable period, a preliminary inquiry concerning a complaint regarding State aid,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
1 On 13 November 2009, the company Verbund-APT Energa Hellas SA (‘VEH’) filed a complaint with the Commission that the Hellenic Republic had infringed Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37) by failing entirely and effectively to liberalise the Greek electricity market and by granting to the company Public Power Corporation SA (‘PPC’) certain exclusive rights. The Commission registered that complaint (‘the complaint of 13 November 2009’) under reference CHAP (2009) 705.
2 On 17 July 2010, VEH filed a second complaint with the Commission (‘the complaint of 17 July 2010’). It stated that the Hellenic Republic and PPC had infringed Article 106 TFEU and Article 102 TFEU respectively. The Commission registered that complaint under reference COMP/B1/39.826.
3 On 9 December 2010, VEH filed a third complaint with the Commission, stating that PPC had benefited from a number of measures implemented by the Hellenic Republic which amounted to the grant of State aid prohibited under Article 107(1) TFEU. The Commission registered that complaint (‘the complaint of 9 December 2010’) under reference SA.32060 (CP/10) — Verbund-APT Energa Hellas SA, Energy Development Company.
4 By letter of 8 August 2011, the Commission informed VEH of its intention to close the inquiry concerning the complaint of 17 July 2010 on the ground that the questions raised in it concerned mainly the enactment of Directive 2003/54 by the Hellenic Republic. On 11 October 2011, the Commission informed VEH that those questions would be considered by its services responsible for energy questions, as part of an inquiry registered under reference CHAP (2011) 2054.
5 On 16 March 2012, the Commission informed VEH of its intention to close the inquiry concerning the complaint of 9 December 2009. It stated that that complaint raised mainly questions concerning the compatibility of the measures adopted by the Hellenic Republic in favour of PPC with Directive 2003/54. The Commission stated that those questions would be considered in the inquiry registered under reference CHAP (2011) 2054 and requested VEH to submit its observations in that regard.
6 By letter of 2 April 2012, VEH, in response to the Commission’s request, informed it that, by decision of 6 February 2012, the Greek Administrative Supreme Court had held that the lack of openness in the Greek electricity market constituted an infringement of Directive 2003/54. On that basis, VEH emphasised the fact that the complaint of 9 December 2010 should be examined ‘under the angle of the State aid rules’.
7 By letter of 27 April 2012, VEH was informed of the Commission’s intention to send a non-confidential version of the complaint of 9 December 2010 to the Hellenic Republic so that it might prepare its observations.
8 By letter of 11 May 2012, the lawyer who filed the three complaints referred to above to the Commission on behalf of VEH informed the Commission, firstly, that the applicant, Energa Power Trading AE Promithias kai Emporias Energias, maintained the complaint of 9 December 2010 as the successor of VEH. Secondly, he stated that that complaint did not contain any confidential information and that it could be communicated to the Hellenic Republic.
9 By letter of 15 May 2012, the Commission communicated the complaint of 9 December 2010 to the Hellenic Republic and asked it to give its point of view as to the possible existence of State aid.
10 By letter of 24 February 2013, the applicant pointed out that the Commission had agreed to examine the complaint of 9 December 2010 further by sending a non-confidential version of it to the Hellenic Republic and asked the Commission to make ‘a decision either [for] or against [its] complaint, which will allow [it] to further exercise [its] rights of judicial protection’.
11 In a meeting held on 11 April 2013, the Commission asked the applicant to submit its observations on the possible application of Article 106(2) TFEU to the measures taken in favour of PPC referred to in the complaint of 9 December 2010.
12 By letter of 16 April 2013, the applicant submitted that the measures referred to in the preceding paragraph could not be excluded from the general prohibition on State aid pursuant to Article 106(2) TFEU. The applicant therefore pointed out that, it its view, the Commission ought to take a position on the legality of those measures under the law on State aid without it being necessary to await finalisation of the inquiry into the compatibility of those measures with Directive 2003/54, registered under reference CHAP (2011) 2054. The applicant stated that it therefore wished to repeat its request that the Commission make a decision on the complaint of 9 December 2010 either for or against it, in order to enable the applicant ‘to further exercise [its] rights of judicial protection’.
13 The applicant brought the present action by application lodged at the Registry of the General Court on 21 June 2013.
14 In its defence, filed at the Registry of the General Court on 18 September 2013, the Commission argued that the action is inadmissible. In that regard, it noted, firstly, that the applicant has failed to show that it is individually concerned by the decision which, it its view, the Commission ought to have adopted, which is required, in accordance with the case-law, for an action for failure to act to be admissible. The applicant has not shown that it is a competitor of PPC. It lost its licence to operate on the Greek electricity market and has completely ceased its activities on that market. Furthermore, the applicant has failed to show that it is the successor in law of VEH and thus cannot bring an action for failure to act on the basis of the absence of a decision closing an inquiry concerning a complaint filed by that company. Secondly, the Commission noted that neither the letter of 24 February 2013 nor that of 16 April 2013 can be regarded as letters of formal notice enabling it to understand that, there being no reaction on its part for the two months following receipt of those letters, the applicant could start the proceedings for failure to act under Article 265 TFEU, which, according to the case-law, is a condition for an action brought under that provision to be admissible.
15 In addition, the Commission contends that the action is, in any case, unfounded.
16 By letter filed at the Registry of the General Court on 17 January 2014, the applicant informed the General Court, in accordance with Article 99 of its Rules of Procedure, that it discontinued its action and requested, pursuant to Article 87(5) of those Rules, principally, that the Commission be ordered to pay all the costs or, in the alternative, that each party bear its own costs.
17 By letter filed at the Registry of the General Court on 30 January 2014, the Commission stated that it noted the discontinuance and requested that the applicant be ordered to pay the costs.
18 Under the first subparagraph of Article 87(5) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. However, upon application by the party who discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears justified by the conduct of that party.
19 In the present case, it is clear that the discontinuance is not the result of the fact that the Commission has taken the decision which, in the applicant’s view, it was required to adopt, namely a decision closing the preliminary examination procedure of the measures adopted in favour of PPC, which were the subject-matter of the complaint of 9 December 2010.
20 However, the applicant submits that it was solely the defence which enabled it to understand that the preliminary examination procedure referred to above had been opened and was ongoing at the time.
21 That assertion is without basis in fact, as is apparent from paragraphs 7 to 11 above. VEH had been informed, before the action was brought, of the Commission’s intention to send a non-confidential version of the complaint of 9 December 2010 to the Hellenic Republic so that it might prepare its observations. The applicant was aware of that fact, since, after having informed the Commission that it was maintaining that complaint as the successor to VEH, it confirmed that the complaint did not contain any confidential information. In addition, the applicant itself had pointed out, in its letter of 24 February 2013, that the Commission had agreed to consider its complaint. Finally, at the meeting of 11 April 2013, the Commission had asked the applicant to state its position on the possible application of Article 106(2) TFEU to the measures taken in favour of PPC referred to in that complaint. The applicant was thus of necessity aware of the fact that a preliminary inquiry was underway.
22 Furthermore, although Article 87(5) of the Rules of Procedure does not in principle prevent, at the request of the party discontinuing, the other party from being ordered to pay the costs as a result of its conduct even if the action is inadmissible, in the present case it must be noted that the applicant has not even attempted to respond briefly to the objection to admissibility raised in the defence.
23 In those circumstances, the view must be taken that the applicant has failed to show that the Commission’s conduct warrants an order that the Commission pay the costs or bear its own costs.
24 The case must therefore be removed from the register and the applicant must be ordered to pay the costs.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. Case T‑338/13 is removed from the Register of the General Court.
2. Energa Power Trading AE Promithias kai Emporias Energias shall bear its own costs and pay the costs incurred by the European Commission.
Luxembourg, 31 March 2014.