Action brought on 28 April 2011 - Hellenic Republic v Commission

(Case T-233/11)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: V. Αsimakopoulos, G. Κanellopoulos, Α. Ιosifidou and P. Μilonopoulos)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul the contested decision and

order the Commission to pay the costs.

Pleas in law and main arguments

By this action the applicant seeks the annulment of the decision of the European Commission of 23 February 2011, Ε(2011)1006 final, on the State Aid No C 48/2008 (ex ΝΝ 61/2008) implemented by Greece in favour of Εllinikos Xrysos SA.

The applicant relies on the following grounds for annulment:

The applicant claims, first, that the defendant infringed the provisions of the Treaties (Articles 107(1) and 108(2) TFEU, formerly Articles 87(1) and 88(2) ΕC) by interpreting and applying them erroneously, due to error as to the combination and assessment of the facts of the case in relation to the definition of State Aid.

In support of the first part of that ground, in connection with the first measure of State Aid (sale of the Cassandra mines at a price lower than their market value) the applicant claims that there was: (a) an erroneous assessment in relation to the existence of State aid, caused by the manifest error in relation to the role of the Greek State as a mere intermediary and the absence of involvement of State resources in the transfer at issue, (b) (further) an erroneous assessment in relation to the application of the private investor test, (c) (further) an erroneous assessment in relation to the granting of an advantage, caused by the manifestly erroneous estimate of the value of the mines, the land and the stock of concentrates, as well as of the supposedly real, at the time of the sale, operation of the mines, (d) (further) an erroneous assessment in relation to the distortion of competition and the effect on trade between Member States.

In support of the second part of that ground, in connection with the second measure of State Aid (waiver of taxes on the transfer) the applicant claims that there was an erroneous assessment of the alleged advantage, as well as of the alleged distortion of competition and effect on trade between Member States.

In support of the second ground for annulment, the applicant claims that the defendant infringed the provisions of Article 14(1)(b) of Regulation (EC) No 659/1999¹ in relation to the demand for recovery of the aid, contrary to the principles of proportionality, sincere cooperation, legal certainty and the protection of legitimate expectations.

In support of that ground the applicant claims that in the light of those principles the defendant erred in the exercise of balancing the threatened distortion of competition and the benefit from the continued activity of the mines at issue.

Lastly, in support of the third ground for annulment, the applicant claims that the defendant infringed the rules relating to stating reasons (Article 296 TFEU, formerly Article 253 ΕC) in connection with the existence of State Aid, and in relation to its compatibility with the internal market.

In support of that ground, the applicant claims that the defendant did not explain why the price for the sale of the Cassandra mines deriving entirely from private resources constitutes the direct or indirect loss of State resources which can be attributed to the Greek State, nor why it regarded as payable in the present case both taxes on the transfer of the mines and on the transfer of land, and not only the tax on the mines. Moreover, in relation to the value of the mines, the land and the stock of minerals, the defendant did not explain the granting of an advantage, relying selectively partly on the Behre Dolbear report and partly on its own arbitrary arguments which it also applied inconsistently in connection with the negative value of the idle mines.

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¹ - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty.