Action brought on 13 May 2008 - DEI v Commission

(Case T-169/08)

Language of the case: Greek

Parties

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

Defendant: Commission of the European Communities

Form of order sought

annul the contested decision;

order the defendant to pay the costs.

Pleas in law and main arguments

By this action, the applicant seeks the annulment of Commission Decision C(2008) 824 final of 5 March 2008 relating to the grant or retention in force by the Hellenic Republic of rights for the mining of lignite in favour of Dimosia Epikhirisi Ilektrismou (Public Power Corporation).

The applicant puts forward the following pleas for annulment.

The applicant submits, first, that the defendant erred in law when applying Article 86(1) EC in conjunction with Article 82 EC, and made a manifest error of assessment.

Specifically, according to the applicant the defendant erred (i) with regard to the definition of the relevant markets; (ii) with regard to application of the theory of extension of a dominant position, since it did not take into account that, even in the case of public undertakings, the extension must be based on State measures that grant exclusive or special rights; (iii) because the Greek legislation on the basis of which the applicant acquired rights in respect of the exploitation of lignite does not lead to a situation of unequal opportunity to the detriment of competitors; (iv) since the aforementioned legislation does not lead to the maintenance or strengthening of the applicant's dominant position in the wholesale electricity market; and (v) by reason of a manifest error of assessment in not taking into account the recent developments in the Greek electrical energy market inasmuch as they were important for proving the absence of an infringement.

Under the second plea for annulment, the applicant submits that, in issuing the contested decision, the defendant did not comply with the rules laid down by Article 253 EC that govern the statement of reasons.

Under the third plea for annulment, the applicant submits that the contested decision infringes the general principles of legal certainty, of the protection of legitimate expectations and of the protection of property. The applicant further contends that it falls to the Court to rule whether the defendant misused its powers.

Finally, under the fourth plea for annulment, the applicant submits that the defendant did not comply with the principle of proportionality as regards the corrective measures proposed by the contested decision.

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