Koinopraxia Touristiki Loutrakiou v Commission (State aid - Greek casinos - Judgment) [2022] EUECJ T-757/18 (19 January 2022)

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(State aid – Greek casinos – System providing for a levy of 80% on admission fees of different amounts – Differentiation between public and private casinos – Complaint – Decision declaring the aid incompatible with the internal market and unlawful and ordering its recovery – Annulment of the decision by a decision of the General Court – Decision finding no State aid – Action for annulment – Challengeable act – Admissibility – Rights of the defence)

Koinopraxia Touristiki Loutrakiou AE OTA – Loutraki AE – Klab Otel Loutraki Kazino Touristikes kai Xenodocheiakes Epicheiriseis AE, established in Loutraki (Greece), represented by S. Pappas and A. Pappas, lawyers,

European Commission, represented by A. Bouchagiar and P.-J. Loewenthal, acting as Agents,

Regency Entertainment Psychagogiki kai Touristiki AE, established in Maroussi (Greece),

represented by N. Niejahr, B. Hoorelbeke, I. Drillerakis and E. Rantos, lawyers,

APPLICATION pursuant to Article 263 TFEU seeking annulment of Commission Decision (EU) 2018/1575 of 9 August 2018 on the measures to certain Greek casinos SA.28973 – C 16/2010 (ex NN 22/2010, ex CP 318/2009) implemented by Greece (OJ 2018 L 262, p. 61),

composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

having regard to the written part of the procedure and further to the hearing on 20 May 2021,

1 Prior to 1994, three casinos were operated in Greece, that of Mont Parnès, that of Corfu and that of Rhodes. The price of the admission ticket was set by a State body, Ellinikos Organismos Tourismou (EOT, Greek Tourism Office). That price, which was set at 2 000 Greek drachmas (GRD) (approximately EUR 6) for the casino of Mont Parnès and GRD 1 500 (approximately EUR 4.50) for the casinos of Corfu and Rhodes, was increased to GRD 2 000 for the casino of Corfu in 1997. Nomos No 2160/1993 (Law No 2160/1993) (FEK A’ 118/19.7.1993) provided that those three casinos would continue to operate as EOT clubs until the competent authority granted them an operating licence.

2 Nomos No 2206/1994 (Law No 2206/1994) (FEK A’ 62/20.4.1994) provided for the grant of a specified number of operating licences. Article 2(10) of that law provided that the price of tickets for admission to the casinos in certain areas would be set by ministerial decision and that that same decision would determine the percentage of that price that would be paid to the State.

3 In that regard, under paragraph 1 of Apofasi tou Ypourgou Oikonomikon No 1128269/1226/0015/POL.1292 (Decision No 1128269/1226/0015/POL.1292 of the Ministry of Finance) of 16 November 1995 (FEK B’ 982/29.11.1995) (‘the 1995 Ministerial Decision’), casino operators were obliged, as from 15 December 1995, to issue an admission ticket to each person according to the provisions of the same decision. Under paragraph 5 of that decision, the price of an admission ticket was set at GRD 5 000, converted to the sum of EUR 15 pursuant to Article 31(13) of Nomos No 2873/2000 (Law No 2873/2000) (FEK A’ 285/28.12.2000). Under paragraph 6 of the 1995 Ministerial Decision, if persons on whom no price was imposed for reasons of promotion or social obligation were admitted to the gaming area, a ticket from a special batch was to be issued. The 1995 Ministerial Decision also provided, in paragraph 7 thereof, that casino operators were to withhold 20% of the value of the admission ticket as ‘fees for issuing the ticket and covering expenses’, including the appropriate value added tax (VAT), while the remainder constituted ‘public fees’. Under the second subparagraph of paragraph 7 of the said decision, where tickets were issued free of charge, public fees were to be paid by reference to the price of an admission ticket set pursuant to paragraph 5 of the same decision.

4 After 1995, the casinos of Mont Parnès, Corfu and Rhodes continued to operate as EOT clubs. EOT was subsequently replaced as operator of the casinos of Corfu and Mont Parnès by Elliniki Etaireia Touristikis Anaptyxis (ETA), a Greek tourism development company wholly owned by the Greek State. The casino of Corfu continued to charge an admission fee of EUR 6 until its privatisation on 30 August 2010 and, pursuant to the 1995 Ministerial Decision, continued to pay 80% of the relevant amounts to the State. Similarly, the casino of Rhodes was issued with an operating licence in 1996 and charged an admission fee of GRD 5 000 after its privatisation in April 1999. From the end of 2000 to 2003, the casino of Mont Parnès charged an admission fee of GRD 1 500, becoming EUR 6 from 1 January 2002, and, from the end of 2000, 80% of that fee was paid to the Greek State.

5 Of the six new casinos established in Greece after 1995 pursuant to Law No 2206/1994, namely the casinos of Chalkidiki, Loutraki, Thessaloniki, Rio (Achaea), Xanthi (Thrace) and Syros, all charged an admission fee of EUR 15, except for the casino of Thessaloniki.

6 The casino of Thessaloniki (operated by Regency Entertainment Psychagogiki kai Touristiki AE) charged an admission fee of EUR 6 pursuant to Nomothetiko diatagma 2687/1953 peri ependyseos kai prostasias kefalaion exoterikou (Legislative Decree No 2687/1953, concerning the investment and protection of foreign capital) (FEK A’ 317/10.11.1953), which provides that undertakings established with foreign capital are to receive treatment at least as favourable as that given to other similar domestic undertakings. The casino operator’s request that the price of a ticket for admission to the casino of Thessaloniki be set at the same level as that of the casino of Mont Parnès, that is to say at EUR 6, was granted in accordance with Gnomodotisi 631/1997 tou Nomikou Symvouliou tou Kratous (Opinion No 631/1997 of the Greek Legal Council of State) of 16 October 1997. Paragraph 7 of the 1995 Ministerial Decision, concerning public fees on admission tickets, was applied to the casino of Thessaloniki.

7 On 8 July 2009, the applicant, Koinopraxia Touristiki Loutrakiou AE OTA – Loutraki AE – Klab Otel Loutraki Kazino Touristikes kai Xenodocheiakes Epicheiriseis AE, a consortium operating the casino of Loutraki, submitted a complaint to the European Commission concerning the Greek legislation on the system of casino admission fees, arguing that such a system was tantamount to providing State aid to three economic operators, namely the casinos of Mont Parnès, Corfu and Thessaloniki (‘the 2009 complaint’).

8 Following exchanges of observations, the Commission initiated the formal investigation procedure by decision of 6 July 2010 (‘the 2010 opening decision’).

9 The Commission received comments from the Greek authorities and interested parties.

10 On 24 May 2011, the Commission adopted Decision 2011/716/EU on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25; ‘the 2011 final decision’). Articles 1 and 2 thereof were worded as follows:

The State aid implemented by the Hellenic Republic and consisting of the fiscal discrimination put into place in favour of certain casinos through the implementation of several simultaneous, partially mandatory, legal provisions concerning

– the setting of two unequal regulated prices of admission tickets at EUR 6 and EUR 15 respectively for publicly and privately owned casinos,

has been unlawfully put into effect by the Hellenic Republic in breach of Article 108(3) [TFEU] and is incompatible with the internal market since it has placed the following beneficiary casinos: Regency Casino Mont Parnès, Regency Casino Thessaloniki and Corfu Casino (on the understanding that Rhodes Casino has stopped being a beneficiary in April 1999) at an undue competitive advantage.

1. The Hellenic Republic shall recover from the beneficiary casinos the incompatible aid referred to in Article 1 which was granted since 21 October 1999.

11 By application lodged at the Court Registry on 3 August 2011, the Hellenic Republic brought an action for annulment against the 2011 final decision, which was registered as Case T‑425/11. Actions for annulment were also brought, respectively, by Etaireia Akiniton Dimosiou AE (ETAD), which was registered as Case T‑419/11, by Regency Entertainment Psychagogiki kai Touristiki, which was registered as Case T‑635/11, by Elliniko Kazino Parnithas AE, which was registered as Case T‑14/12, and by Athens Resort Casino AE Symmetochon, a shareholder in the casinos of Thessaloniki and Mont Parnès, which was registered as Case T‑36/12.

12 By judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), the Court annulled the 2011 final decision, after having concluded that the Commission had not established the existence of State aid within the meaning of Article 107(1) TFEU.

13 On 22 November 2014, the Commission brought an appeal against the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768). By order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727), the Court of Justice dismissed the Commission’s appeal and upheld that judgment. Consequently, by the orders of 19 April 2016, ETAD v Commission (T‑419/11, not published, EU:T:2016:277), of 19 April 2016, Regency Entertainment Psychagogiki kai Touristiki v Commission (T‑635/11, not published, EU:T:2016:299), of 19 April 2016, Elliniko Kazino Parnithas v Commission (T‑14/12, not published, EU:T:2016:300), and of 19 April 2016, Athens Resort Casino v Commission (T‑36/12, not published, EU:T:2016:301), the General Court found that the applications for annulment of the 2011 final decision lodged, respectively, by ETAD, by Regency Entertainment Psychagogiki kai Touristiki, by Elliniko Kazino Parnithas and by Athens Resort Casino had become devoid of purpose and that there was no longer any need to adjudicate on them.

14 On 14 April 2017, the applicant lodged a complaint with the Commission (‘the 2017 complaint’), in which it requested it, in essence, to adopt a decision finding that the implementation by the Hellenic Republic of State aid consisting in differentiated admission fees of EUR 6 and EUR 15, applied by public and private casinos, respectively, infringed Article 108(3), TFEU and was incompatible with the internal market, in that it placed its beneficiaries, namely the casinos of Mont Parnès, Thessaloniki and Corfu, in a situation of unlawful competitive advantage, consisting in an attractiveness advantage linked to the lower price of admission tickets and to the effects of that measure on their turnover, as well owing to the particularly developed practice of issuing tickets free of charge.

15 On 17 November 2017, the Commission notified the Hellenic Republic of the 2017 complaint and invited it to submit its observations. On 26 January 2018, the Hellenic Republic replied to the Commission.

16 On 9 August 2018, the Commission adopted Decision (EU) 2018/1575 on the measures to certain Greek casinos SA.28973 – C 16/2010 (ex NN 22/2010, ex CP 318/2009) implemented by Greece (OJ 2018 L 262, p. 61) (‘the contested decision’). It concluded that the system of levies on admissions to casinos in Greece that existed until November 2012 did not constitute aid within the meaning of Article 107(1) TFEU.

17 In essence, the Commission relied on the order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727) and on the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) to assert, in recitals 63 to 68 of the contested decision, that the measure at issue did not confer an advantage within the meaning of Article 107(1) TFEU. It emphasised that that conclusion also applied to the practice of granting tickets free of charge. In recitals 69 and 70 of the contested decision, the Commission took the view that, given that the system of admission fees to casinos in Greece did not itself confer an advantage on public casinos, any increased attractiveness or additional revenue from additional customers attracted by a lower admission fee could not be said by the applicant to give rise to an advantage. According to the Commission, in any event, even if such an advantage could be shown to exist, it was not granted through State resources within the meaning of Article 107(1) TFEU.

18 By application lodged at the Court Registry on 31 December 2018, the applicant brought the present action.

22 The applicant submitted, on 14 October 2019, pursuant to Article 88 of the Rules of Procedure of the General Court, a request for measures of organisation of procedure seeking to be able to make written observations on certain paragraphs of the rejoinder or to clarify the first branch of the second plea of its action. The Commission submitted its observations in that regard on 25 October 2019.

23 By document lodged at the Court Registry on 5 April 2019, Regency Entertainment Psychagogiki Kai Touristiki and Elliniko Kazino Parnithas applied, in accordance with Article 143 of the Rules of Procedure, to intervene jointly in support of the form of order sought by the Commission.

24 On 3 May 2019, the applicant lodged its observations on the joint application to intervene with the Court, objecting to its admissibility. The Commission did not submit observations on the application to intervene within the period prescribed.

25 By order of 13 November 2019, the President of the Sixth Chamber granted Regency Entertainment Psychagogiki Kai Touristiki and Elliniko Kazino Parnithas leave to intervene in support of the form of order sought by the Commission.

26 On 9 January 2020, the interveners, Regency Entertainment Psychagogiki Kai Touristiki and Elliniko Kazino Parnithas, lodged the statement in intervention with the Court.

27 On 20 February 2020, the applicant lodged its observations on the statement in intervention with the Court.

30 The interveners maintain that the action is inadmissible. In essence, by failing to bring an action against the 2011 final decision within the time limit prescribed by the sixth paragraph of Article 263 TFEU, the applicant has foregone its right to challenge, on the one hand, the decision of the Commission holding that the alleged increased attractiveness did not constitute an advantage giving rise to State aid and, on the other hand, the failure of the Commission to examine this issue properly. Moreover, the contested decision is a mere confirmation of the 2011 final decision.

31 The applicant considers that the action is admissible. First, the 2011 final decision having disappeared from the EU legal order on account of its annulment by the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), the contested decision constitutes a new decision, against which all the illegalities affecting it may be invoked. Second, the Commission retains discretion with regard to the question of the existence of an attractiveness advantage. It is not bound by that judgment, except as regards the obligation to perform an economic analysis of the attractiveness advantage. The 2011 final decision is not res judicata on the aspects concerning the concept of attractiveness. Third, the contested decision is not confirmatory, since no decision can confirm an annulled decision.

32 Before ruling on the admissibility of the action, it should be recalled that, according to the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of Article 53 thereof, an application to intervene is limited to supporting the form of order sought by one of the parties to the dispute. In addition, Article 142(3) of the Rules of Procedure provides that the intervener must accept the case as he finds it at the time of his intervention. It follows that the interveners do not have standing to raise a plea of inadmissibility and that the EU Court is therefore not required, in principle, to examine the pleas of inadmissibility raised by them. However, since this is an absolute bar to proceedings, the admissibility of the action must be examined of its own motion, pursuant to Article 129 of the said rules (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 36 and the case-law cited).

33 As a preliminary point, in order to rule on the admissibility of the present action, it is necessary to determine at what point in time the parties submitted observations on increased attractiveness, owing to the lower admission fees for certain casinos, at what stage the Commission took a position on those observations, on what grounds it adopted its decisions and what its conclusions were.

34 In the first place, it should be noted that the 2009 complaint indicated that the State intervention consisted in a ‘loss of tax revenue in favour of the three casinos concerned in the sense that the reduced admission fee constitute[d] a competitive advantage for them which ma[de] them more attractive than others[,] in particular as regards international customers’, and that, ‘moreover[,] their tax base thus bec[ame] lower than that of the other casinos’. Therefore, the 2009 complaint pertained to the attractiveness advantage and, in addition, to the tax advantage.

35 In the second place, it must be pointed out that, in the 2010 opening decision, which followed the 2009 complaint, the Commission clearly mentioned the attractiveness advantage as one of the aspects of the advantage covered by the measures under review. Indeed, the Commission stated that consumers who entered a casino generated further revenues from the gambling activities and other services, such as catering. It also referred to the fact that the legislation allowed casinos to introduce, subject to specific conditions, free admission fees, even though the differential rate still had to be paid by casinos to the State. Accordingly, those two aspects of advantage – the attractiveness advantage and the effects of free admission fees – were added to the third, relating to the tax element of the measures at issue. The Commission did not however quantify the attractiveness advantage and the effects of free admission fees, not having carried out a statistical or economic analysis in that regard.

36 In the third place, it is apparent from the letter of 25 October 2010, sent by the applicant to the Commission, that certain additional explanations were provided regarding the free admission tickets system and the effects of the measures at issue in that context, but without any economic or statistical quantification. The quantification of the economic impact of the difference in admission ticket prices set out in Annexes 1 and 2 to that letter relates only to an analysis of the tickets sold at the price of EUR 6 by the three casinos concerned, from October 1999 to September 2010, while the conclusion drawn from that analysis relates to the sums to be recovered in relation to a situation in which tickets would be sold at the price of EUR 15.

37 In the fourth place, in the 2011 final decision, in order to refute the arguments of the Hellenic Republic aimed at demonstrating that the measures at issue could benefit casinos charging the higher admission fee, since they kept 20% of that fee, the Commission referred to the attractiveness advantage linked to the setting of ticket prices, including the admission tax, at a lower level. It pointed out that such price-setting artificially increases the level of admissions to certain casinos by deviating demand from the pattern that would prevail if casinos competed solely on the basis of their own characteristics relating to the scope and quality of the services they provide. Moreover, the revenues from admissions constitute only a fraction of the total revenues that a customer attracted by a casino generates for the undertaking and out of which the casinos have to pay the admission tax.

38 In the fifth place, the Court found in paragraph 67 of the judgment of 11 September 2014, Greece v Commission (T-425/11, EU:T:2014:768) that the advantage claimed by the Commission in the 2011 final decision was limited to the difference between the amounts paid by the casinos to the State for each admission ticket sold.

39 As is apparent from paragraphs 65 and 66 of the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), first, the Court relied, in that regard, on the Commission’s assertion at the hearing that the aspects relating to the distortion of competition and the attractiveness of the lower price did not constitute an element of the advantage concerned by the 2011 final decision, in the absence of an economic analysis.

40 Second, the Court explicitly stated that the 2011 final decision did not contain any statistical and, in consequence, economic analysis of an attractiveness advantage. It also referred to recital 146 of the 2011 final decision, pointing out that it was apparent from that decision that the sums in respect of which the Commission had ordered recovery did not amount to an advantage of that kind, on account of the method of calculation used.

41 Therefore, while it is apparent from paragraph 66 of the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) that the Court did not exclude, in theory, the fact that, in State aid cases requiring the involvement of State resources through which an advantage was granted, the attractiveness of a lower admission fee could constitute an element of that advantage, it rejected the possibility that that element had been taken into account in the 2011 final decision.

42 The order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727), confirms those conclusions of the General Court. It is apparent inter alia from paragraphs 22, 28 and 47 of that order that the Court of Justice based its reasoning on the fact that the Commission had not regarded the increased attractiveness as part of the advantage within the meaning of Article 107(1) TFEU.

43 It is in the light of those circumstances that the interveners contend that the action is inadmissible, referring, in particular, to paragraphs 57 to 64 of the judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695), and that it is necessary to rule on the admissibility of the action.

44 It follows from the case-law of the Court of Justice that, where the action for annulment is brought by a natural or legal person against a measure adopted by an institution, it is available only if the binding legal effects of that measure are capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position (judgment of 24 October 2013, Deutsche Post v Commission, C‑77/12 P, not published, EU:C:2013:695, paragraph 51).

45 In the case at hand, it is necessary to assess, first of all, whether the 2011 final decision closed, in its entirety – including as regards the claims relating to the attractiveness advantage – the formal investigation procedure initiated by the 2010 opening decision.

46 In that regard, the 2011 final decision cannot be considered to have closed the formal investigation procedure initiated in 2010 on all the matters alleged in the 2009 complaint that were restated in the context of the initiation of the formal investigation procedure, in particular as regards the attractiveness advantage. Thus, there is a fundamental difference between that decision and the decision entitled ‘2002 negative decision’, analysed in paragraphs 57 to 64 of the judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695).

47 The fundamental difference is that, in the case at hand, the 2011 final decision did not definitively address all the measures called into question by the Commission in the 2010 opening decision as potentially competition-harming aspects of the measures analysed, unlike the situation that was the subject of paragraphs 58 and 60 of the judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695). Indeed, in the 2011 final decision, the Commission did not expressly exclude all the measures recalled in paragraph 35 above, but took the view, in recital 77 of the 2011 final decision, that the attractiveness advantage could play a certain role, without however going so far as to carry out the economic analyses. The same conclusion applies to the free tickets, in the sense that the relevance of that element was theoretically accepted. Thus, it is true that the Commission did not include those elements in the definition of the recoverable advantage, which it limited to the tax or accounting elements of the measures analysed. However, it is apparent from the 2011 final decision that it also did not rule out the attractiveness advantage and the free tickets as additional elements that could have constituted, subject to additional analyses, independent aspects of prohibited State aid.

48 In those circumstances, while it did summarise the parties’ observations concerning the attractiveness advantage in the 2011 final decision, it must be held that the Commission did not carry out a definitive analysis of the attractiveness advantage and the free tickets. It started from the premiss that the tax aspect of the measures at issue was sufficient to recover the unlawful State aid.

49 Therefore, the facts of the present case are not similar to those of the case that gave rise to the judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695), in which, even though it had declared incompatible with the internal market a single public aid measure among several aid measures that had initially been the subject of a decision to initiate the formal investigation procedure and had requested its recovery, the Commission also ruled, explicitly, on the other alleged aid elements, unlike in the present case.

50 Moreover, it should be noted that the operative part of the 2011 final decision concluded in the applicant’s favour, in that the public aid measures falling within the scope of the Greek legislation at issue constituted a prohibited action recoverable on the tax aspect.

51 In those circumstances, the fact that the Commission did not carry out, in the 2011 final decision, statistical or economic analyses on the attractiveness advantage does not mean that the applicant was obliged to bring an action against that decision on those points. After all, as the Commission relied, in the 2011 final decision, primarily on the tax aspect of the measures in question, which it considered decisive, adopting on that point a decision favourable to the applicant containing certain additional analyses making reference to the attractiveness advantage and to the free tickets, the applicant was not negatively affected by that decision (contrary to the requirements of the case-law cited in paragraph 44 above).

52 Accordingly, it is appropriate to hold that the contested decision cannot be seen as a mere confirmation of the 2011 final decision and that the applicant could therefore challenge the contested decision with regard to the attractiveness advantage and the absence of additional analyses. Thus, following the annulment of the 2011 final decision, which had the effect of retroactively eliminating that decision from the legal order (see, to that effect, judgment of 24 October 2013, Deutsche Post v Commission, C‑77/12 P, not published, EU:C:2013:695, paragraph 65), there was nothing preventing the applicant from bringing an action, on those points, against the contested decision.

53 Consequently, the contested decision constitutes a measure which is capable of affecting the applicant’s interests by bringing about a significant change in its legal position. It has all the elements of a challengeable act and cannot be regarded as confirming the 2011 final decision.

56 As its principal claim, the applicant argues that the part of the contested decision in which the Commission examined whether the alleged State aid measure confers an ‘attractiveness advantage’, as defined in the 2017 complaint, must be regarded as a decision not to raise objections, adopted following the preliminary examination stage. Should this line of argument be accepted, the applicant claims that the Commission ought to have initiated the formal investigation procedure because there were serious doubts as to the existence of an attractiveness advantage financed through State resources.

57 In the alternative, should the Court find that the part in question of the contested decision was adopted following the formal investigation procedure, the applicant argues that the Commission nevertheless had an obligation to reopen that procedure by virtue of the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768). In any event, the Commission was, as a matter of principle, obliged to give the parties concerned, including the applicant, notice to submit their comments before the adoption of the contested decision.

First plea in law, concerning the failure to initiate the formal investigation procedure

58 In the first place, the applicant submits that recital 69 of the contested decision must be characterised as constituting a decision not to raise objections following the preliminary examination stage. According to the applicant, in order to adopt a decision on the basis of a formal investigation procedure, the Commission must not only give notice to the parties concerned to submit their comments, but also examine in depth the alleged State aid measure, which it did not do in the present case. On the contrary, it adopted the contested decision solely on the basis of the formal procedure that it had initiated in connection with the 2011 final decision, which, however, had consisted exclusively in analysing whether the alleged State aid measure constituted an advantage for the beneficiary undertakings by virtue of the fact that their tax burdens were lower for each customer admitted. According to the applicant, the assessment that led to the adoption of the 2011 final decision was therefore conducted without any economic analysis of the attractiveness of the lower-priced admission ticket, as was also acknowledged in the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768).

59 The applicant asserts that, in that context, the Commission could not legally adopt recital 69 of the contested decision without first initiating a separate formal investigation procedure given the serious doubts as to the compatibility of the aid measure.

60 In the second place, should the line of argument set out in paragraphs 58 and 59 above be upheld, the applicant submits that there were serious difficulties in the case at hand. It submits that the notion of serious difficulties is an objective one. The Commission erred in law in holding that it was impossible to establish legally an attractiveness advantage financed through State resources and due to the length and incomplete nature of the examination of the alleged state aid measure.

61 First, the applicant asserts, with regard to the existence of an attractiveness advantage, that a significant difference in price between admission tickets for public casinos and those for private casinos could lead to such an advantage. This is recognised by Legislative Decree No 2687/1953, concerning the investment and protection of foreign capital, since it provides that undertakings established with foreign capital must receive treatment at least as favourable as that given to other, similar domestic undertakings. Second, according to the applicant, there were serious difficulties in determining whether public resources had been used to finance the attractiveness advantage, which should have led to the initiation of the formal investigation procedure, irrespective of whether the Commission’s assessments were erroneous in law or in fact. The applicant considers that that measure had a direct negative impact on the State budget. Third, the applicant submits that the duration of the examination carried out by the Commission following the order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727) demonstrates the existence of serious difficulties. Fourth, the fact that the Commission did not carry out any economic analysis means that the examination is incomplete, which also constitutes evidence of the existence of serious difficulties.

62 The applicant maintains that the contested decision must be annulled, since the Commission did not initiate a formal investigation procedure to give the parties concerned the possibility to submit comments and, more specifically, to provide it with an economic analysis substantiating the attractiveness advantage.

64 In that regard, first, it should be noted that, as has already been stated in paragraph 35 above, the 2010 opening decision covered all aspects of the aid measures at issue, including the attractiveness advantage and the free tickets.

65 Second, as regards the 2011 final decision, on the one hand, as has been held in paragraph 48 above, it cannot be deemed to have definitively answered the question of the attractiveness advantage and the questions relating to the free tickets. On the other hand, that decision was annulled by the Court in the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), upheld by the order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727).

66 In those circumstances, it should be recalled that, pursuant to Article 266 TFEU, the institution whose measure has been declared void is required to take the necessary measures to comply with the annulling judgment.

67 In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (see judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 64 and the case-law cited).

68 The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (see judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 65 and the case-law cited).

69 According to settled case-law, the annulment of an EU measure does not necessarily affect the preparatory acts which preceded it. The annulment of a measure concluding an administrative proceeding which comprises several stages does not necessarily entail the annulment of the entire procedure regardless of the grounds, procedural or substantive, of the annulling judgment (see judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 66 and the case-law cited).

70 In the case at hand, it should be noted that the Commission was in no way required to initiate a new formal investigation procedure after the annulment of the 2011 final decision, given that a formal investigation procedure relating to all the questions at issue had already been initiated in 2010 and that that procedure was not covered by the grounds of the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768).

71 Moreover, there is nothing in the 2017 complaint to suggest that the attractiveness advantage referred to is different from that mentioned in the 2009 complaint, which was the subject of the 2010 opening decision, and in relation to which the applicant had submitted its comments even before the 2011 final decision. The same considerations apply to the free tickets (see paragraph 36 above). Indeed, as is apparent from paragraphs 24 to 28 and 31 of the 2017 complaint, the applicant requested the Commission to establish, following an economic analysis, the effects of the attractiveness advantage and the free tickets, which was already covered, in essence, by the 2009 complaint. In paragraphs 24 and 31 of that complaint, the applicant refers, moreover, to the factual evidence submitted by the Hellenic Republic during the procedure which gave rise to the 2011 final decision and, in paragraphs 26 and 27 thereof, it makes reference to recitals 81 to 102 of the 2011 final decision, as regards inter alia the general factual context and certain elements constituting State aid.

72 In those circumstances, the 2017 complaint is clearly within the scope of the formal investigation procedure initiated in 2010, such that the contested decision constitutes a new decision bringing that formal procedure to an end. Consequently, contrary to what is argued by the applicant, the decision cannot be regarded in part as a decision not to raise objections adopted at the end of the preliminary examination stage. The applicant’s first plea in law must therefore be rejected as unfounded.

Second plea in law, concerning the obligation to reopen the formal investigation procedure

73 The applicant submits, in the alternative, that, should the Court find that the contested decision was adopted following a formal investigation procedure, it must be held that the Commission was under an obligation to reopen that procedure following the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768). The failure to comply with that obligation amounts to a breach of its procedural rights, which should lead to the annulment of the contested decision.

74 In essence, the applicant submits, first, that, in the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), the Court did not examine the existence of an attractiveness advantage. Second, it did not exclude the possibility of proving that such an advantage could be granted through State resources provided that it was substantiated by means of an economic analysis. Third, the Commission’s formal investigation, which was supposed to enable it to be fully informed of the facts of the case, did not, according to the applicant, contain any economic analysis relating to the existence of an attractiveness advantage. Fourth, the 2017 complaint concerned exclusively the issue of the attractiveness advantage. Fifth, the Commission also breached the essential procedural requirement consisting in giving notice to the parties concerned to submit their comments and did not gather information enabling it to carry out an economic analysis.

75 According to the applicant, in view of all of those considerations as well as the serious difficulties in examining the existence of an attractiveness advantage and the use of State resources, the Commission was under an obligation to reopen the formal investigation procedure. Having failed to do so, it did not base its decision on an analysis of the specific facts of the case, but dismissed the existence of State aid on the basis of a legal analysis. In any event, it should have given notice to the parties concerned to submit their comments.

76 In the reply, the applicant maintains, with regard to the obligation to reopen the formal investigation procedure, that it should be assumed that the Commission regarded its 2017 complaint as a formal complaint. The applicant adds, first, that the fact that, in the 2010 opening decision, the Commission had raised concerns regarding the existence of an attractiveness advantage and had referred to its arguments advanced in the 2009 complaint was irrelevant, since that decision preceded the initiation of the formal investigation procedure. Second, the Commission cannot escape its obligation to reopen a formal investigation procedure on the sole ground that it had taken into account a complaint when it adopted a decision. According to the applicant, the purpose of the observations submitted in the context of the formal investigation procedure is different from that of a complaint. Moreover, in the case at hand, at no stage did the Commission take account of the claims made in the 2017 complaint or examine the attractiveness advantage. According to the applicant, an effective examination of them was required. Third, the 2017 complaint was lodged due to the Commission’s inaction following the order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727). According to the applicant, if the Commission was of the view that the 2017 complaint did not observe the formal requirements, that institution should have called upon it to submit comments in that regard within a prescribed period. In any event, the correct characterisation of the 2017 complaint has no bearing on the case, since the Commission accepted, by letter of 12 June 2017, the 2017 complaint. It thus initiated a new preliminary investigation and annulled the 2010 opening decision.

77 Finally, the applicant maintains that, while its first plea in law concerns the conditions that must be fulfilled for a formal investigation procedure to be deemed to have been opened, its second plea in law concerns, on the one hand, the obligation to reopen such procedure following the annulment of the 2011 final decision and, on the other, the obligation of the Commission to allow the parties to submit their comments. The failure, further to the concerns mentioned in the 2010 opening decision relating to the attractiveness advantage, to conduct an analysis on that issue constitutes a change of the applicable legal framework that prevented the parties from effectively participating in the procedure.

79 It should be noted, as a preliminary point, that no provision of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) specifies the cases in which the Commission is obliged to reopen the formal investigation procedure.

80 According to the case-law, in order to comply with its obligations under Article 266 TFEU and conduct the new analysis required by the Court in a judgment annulling a measure, the Commission may, depending on the circumstances of the case, be compelled to reopen the formal investigation procedure, first, in order to gather the information necessary for that new analysis and, second, to give interested third parties the opportunity to put forward their arguments on that new analysis (judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 70).

81 Thus, the assessment of the need to reopen the formal investigation procedure can be based only on a joint examination of the grounds of the annulment judgment and of the circumstances of the case (see, to that effect, judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 71).

82 In that regard, it must be recalled that it is in no way apparent from the case-law that annulment on the grounds of errors of law or manifest errors of assessment, and not on the ground of a failure to state reasons, necessarily entails reopening the formal investigation procedure. The case-law does not make the possibility of not resuming the entire procedure preceding the adoption of a measure adopted to replace another conditional on the latter having been annulled for procedural defects (see judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 69 and the case-law cited).

83 Moreover, it is apparent from settled case-law that the Commission is not under an obligation to conduct an exchange of views and arguments with a complainant in a State aid case (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 58, and of 12 December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, T‑95/03, EU:T:2006:385, paragraph 140). Furthermore, the Commission is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraphs 62 to 64).

84 In the case at hand, the Commission was right to consider that it was not obliged to reopen the formal investigation procedure.

85 First, it was under no obligation to gather on its own initiative the information necessary for a new analysis (see, to that effect and by analogy, judgment of 29 April 2021, Achemos Grupė and Achema v Commission, C‑847/19 P, not published, EU:C:2021:343, paragraph 50), nor that of allowing interested third parties to put forward their arguments on new analyses. It was entitled inter alia to base its analysis on the information already available to it at the time of the adoption of the 2011 final decision and following its annulment, the applicant having availed itself of the opportunity to provide information, both in response to the 2010 opening decision and after the annulment of the 2011 final decision, which the Commission did not consider sufficiently probative to reopen the procedure. That is particularly so since nothing in the 2017 complaint constitutes new concrete evidence requiring a new examination. It is apparent inter alia from the file that the applicant had requested the Commission, in the context of the 2017 complaint, to take into account all the information provided by the Greek authorities during the procedure leading to the adoption of the 2011 final decision. Moreover, in that complaint, the applicant reiterated, in essence, the claims made previously, in particular without putting forward any claims relating to economic analyses. It should also be borne in mind that, in recitals 56 to 58 and 69 of the contested decision, the Commission took the applicant’s claims into consideration.

86 Second, the reopening of the formal investigation procedure was also not required within the meaning of the order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727) or the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) since, contrary to the applicant’s interpretation of them, neither that order nor that judgment requires the Commission to carry out an economic assessment of the attractiveness advantage or indeed of the effects of the free tickets. It followed only that, had the Commission envisaged determining that those elements constituted State aid, it would then have been required to carry out such additional analyses or demonstrations (judgment of 11 September 2014, Greece v Commission, T‑425/11, EU:T:2014:768, paragraph 66).

88 First, with regard to the claims of the applicant according to which the Commission was not adequately informed in this case (see paragraphs 74 and 75 above), it must be held that the Commission was entitled to consider that it had at its disposal the information necessary to take a decision, particularly since the applicant had had the opportunity to submit all the information it considered necessary following the 2010 opening decision and since the Commission considered that, in any event, the attractiveness advantage had no connection with the State budget.

89 In those circumstances, in the absence of sufficiently conclusive evidence from the applicant concretely demonstrating a need to carry out additional investigations, it cannot be considered that the Commission was obliged on its own initiative to gather information other than that already in its possession in the context of the formal investigation procedure initiated in 2010. Moreover, it must be held that it is not apparent from the 2017 complaint that the specific matters put forward by the applicant had not been the subject of that formal procedure. Nor did the applicant specify at the hearing, in response to a request from the Court to that effect, which elements in its view required an additional specific analysis by the Commission. It cannot be considered sufficient, in that regard, to present general criticisms without numerical assessments in support of them or even general references to the principle of sound administration. If no prima facie evidence was presented, the Commission could not be obliged to act on its own initiative by carrying out additional analyses, especially since it considered, in any event, that there was no link with State resources (see paragraph 85 above).

90 Accordingly, it is also necessary to reject the applicant’s argument that, had it had the opportunity to submit additional comments following the annulment of the 2011 final decision, the contested decision might have been different. In the 2017 complaint, it did not submit any evidence capable of corroborating such a claim. It should be added that, according to settled case-law, the Commission’s main interlocutors in State aid cases are the States and not the complainant undertakings (see, to that effect and by analogy, judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraphs 70 to 75 and the case-law cited).

91 Furthermore, it is also apparent from the contested decision and from the Commission’s reply to the measures of organisation of procedure that that institution received observations from the Hellenic Republic on the 2017 complaint, including the attractiveness advantage and the free tickets (see paragraph 15 above). Thus, both the applicant, through its 2017 complaint, and the Greek authorities, through their observations on that complaint, in fact submitted comments to the Commission following the annulment of the 2011 final decision, those elements being added to those already in its possession in the context of the formal investigation procedure initiated in 2010.

92 Second, in so far the applicant had been put in a position to respond to the initiation of the 2010 formal investigation procedure, the Commission cannot be considered to have failed to fulfil its procedural obligations in not reopening the formal procedure following the 2017 complaint, irrespective of the categorisation of the 2017 complaint as a ‘new complaint’ and irrespective of whether the applicant met its obligation to use the complaint form or whether the Commission requested it to carry out an additional formalisation.

93 Irrespective of how it was named by the applicant and interpreted by the Commission, the 2017 complaint was clearly part of the formal procedure initiated in 2010 and did not provide new elements that would have required an additional investigation on the part of the Commission. Moreover, in the 2017 complaint, the applicant expressly referred to the 2011 final decision as regards the factual situation and merely requested the Commission to adopt a new decision following the annulment of the 2011 final decision, and not to initiate a new formal investigation procedure. Nor did the applicant allege the existence of a new or different aid measure in its 2017 complaint. Rather, it referred to the existing file and to the formal investigation procedure that had led to the adoption of the 2011 final decision.

94 Third, contrary to what the applicant submits, there was no change in this case of the applicable legal framework after the 2010 opening decision. Thus, the arguments of the applicant based on the obligation to allow it to submit its comments on what it claims was a new legal framework are also unfounded.

95 Fourth, the applicant also cannot reasonably argue that, had it known from the outset that the Commission intended to adopt the 2011 final decision without examining the question of attractiveness, the content of the observations it submitted in response to the 2010 opening decision would have been different and that the Commission should therefore have reopened the formal procedure.

96 First of all, on the one hand, it is common ground that the applicant had the opportunity to submit its observations following the 2010 opening decision. On the other hand, the applicant has not specified the legal basis for its argument that it had to be given a further opportunity to submit observations, whereas the Commission, in the 2011 final decision, had not taken a definitive position on the attractiveness advantage or the free tickets, but had adopted the said decision on the basis of the accounting effects of the alleged State aid.

97 Next, in the contested decision, the Commission was not obliged to revisit the entirety of the applicant’s reasoning set out in the 2009 complaint, despite the fact that did not regard the elements disputed by the applicant as constituting State aid and that, in the contested decision, it indicated the bases underpinning its reasoning.

98 Last, the applicant cannot rely on paragraph 34 of the judgment of 12 November 1998, Spain v Commission (C‑415/96, EU:C:1998:533). In the present case, it is not apparent from the order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727) or from the judgment of 11 September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) that the 2011 final decision was annulled due to the incomplete nature of the Commission’s analysis.

99 In those circumstances, the Commission was not obliged to give the applicant or, as the case may be, other interested parties notice to submit their comments, or to reopen the formal investigation procedure in order to assess the differentiated admission fee system in view of the increased attractiveness. In the light of the case-law cited in paragraph 83 above, that conclusion is not affected by the applicant’s claim that, during the administrative procedure, the Commission did not provide it with the observations submitted by the Hellenic Republic on the 2017 complaint.

100 Furthermore, since the Commission was not obliged to open a new formal investigation procedure after the annulment of the 2011 final decision (see paragraph 70 above), the 2010 opening decision not being affected by the annulment of the 2011 final decision, all the applicant’s claims regarding the existence of serious doubts are ineffective. The question of the presence or absence of serious doubts is a relevant factor only when it is necessary to decide whether to initiate a formal investigation procedure by the Commission.

101 Accordingly, the applicant’s second plea in law must also be rejected and, consequently, the action must be dismissed in its entirety.

102 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

103 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission and the interveners.

2. Orders Koinopraxia Touristiki Loutrakiou AE OTA – Loutraki AE – Klab Otel Loutraki Kazino Touristikes kai Xenodocheiakes Epicheiriseis AE to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Koinopraxia Touristiki Loutrakiou v Commission (State aid - Greek casinos - Judgment) [2022] EUECJ T-757/18 (19 January 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T75718.html Cite as: ECLI:EU:T:2022:13, EU:T:2022:13, [2022] EUECJ T-757/18

Court of Justice of the European Communities (including Court of First Instance Decisions)