Action brought on 19 October 2009 - DEI v Commission

(Case T-421/09)

Language of the case: Greek

Parties

Applicant: Dimosia Epikhirisi Ilektrismou A.E. (Public Power Corporation) (Athens, Greece) (represented by: P. Anestis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

annul the decision;

order the defendant to pay the costs.

Pleas in law and main arguments

On 5 March 2008 the Commission adopted Decision C(2008) 824 on the granting or maintaining in force by the Hellenic Republic of rights in favour of Dimosia Epikhirisi Ilektrismou A.E. for the extraction of lignite, by which the Commission found that the Hellenic Republic had infringed Article 86(1) EC, in conjunction with Article 82 EC, to the extent that it granted and maintained preferential rights in favour of the applicant for the exploitation of lignite in Greece, thereby creating inequality of opportunity between economic operators as regards access to primary fuels for the generation of electricity and enabling the applicant to maintain or reinforce its dominant position on the Greek wholesale electricity market.

The applicant challenged that decision by bringing an action for annulment before the Court of First Instance of the European Communities, which was registered as Case T-169/08 and is pending.

The present action is for annulment, pursuant to the fourth paragraph of Article 230 EC, of Commission Decision C(2009) 6244 of 4 August 2009 ('the contested decision') 'establishing the specific measures to correct the anti-competitive effects of the infringement identified in the Commission Decision of 5 March 2008 on the granting or maintaining in force by the Hellenic Republic of rights in favour of Public Power Corporation S.A. for extraction of lignite'.

Under the first plea for annulment, the applicant submits that the Commission erred in law and manifestly misappraised the facts because (i) it defined the relevant markets incorrectly, failing to take into account that in respect of the generation of electricity extracted lignite also faces competition from other fuels, such as natural gas, which constitute substitutes for lignite and, therefore, belong to the same market and (ii) it assessed incorrectly the geographical extent of the lignite supply market in Greece for the generation of electricity; therefore, the market for lignite supply extends to the broader region of the Balkans.

Under the second plea for annulment, the applicant contends that the contested decision is vitiated by an error of law and manifest misappraisal of the facts in relation to the need to impose corrective measures. First, the Commission erred because it did not take account, when determining the corrective measures, of the legal arguments and the factual material that is included in the administrative procedure and in the annulment proceedings concerning the decision of March 2008. Second, the Commission incorrectly rejected the important new information submitted by DEI regarding the further opening of the wholesale electricity supply market, because it allegedly did not amount to significant new facts. Third, the contested decision is based on an incorrect calculation of the quantities of lignite that must be given to competitors in order to correct the alleged infringement.

Under the third plea for annulment, the applicant submits that the contested decision does not comply with the rules regarding the stating of reasons, but simply repeats in summary form some of the applicant's arguments during the administrative procedure without, however, answering them. Similarly, the ground in the decision relating to the geographical extent of the lignite market does not enable the addressee of the decision to understand the defendant's final conclusions on that point. Lastly, in the applicant's submission, the decision does not state reasons as to why 40% is considered to be the necessary proportion of known exploitable lignite reserves that must be made available to competitors of DEI.

Finally, under the fourth plea for annulment, the applicant maintains that the contested decision infringes the principles of freedom of contract and of proportionality. In so far as the decision prohibits persons who will in the future acquire by tender procedures exploitation rights in respect of the deposits in the areas of Drama, Elassona, Vegora and Vevi from selling quantities of extracted lignite to DEI, it automatically restricts excessively the contractual freedom both of the applicant and of the third parties. Furthermore, in view of significant developments that demonstrate the gradual opening of the Greek electricity market, the exclusion of DEI from tender procedures for the grant of all new lignite rights and the unjustified restriction of its business activity constitute unnecessary measures and are disproportionate to the alleged infringement.

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