# C_2014395EN.01005301.xml

| 10.11.2014 | EN | Official Journal of the European Union | C 395/53 |
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10.11.2014

EN

Official Journal of the European Union

C 395/53

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Action brought on 28 July 2014 — Larymnis Larko v Commission

(Case T-576/14)

(2014/C 395/66)

Language of the case: Greek

Parties

Applicant: Εllininiki Μetalleftiki kai Μetallourgiki Larymnis Larko SA (Kallithea Attikis, Greece) (represented by: V. Koulouris, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul and set aside the Commission Decision of 27 March 2014 [SG–Greffe (2014) D/4628/28/03/2014] in connection with the sale of certain assets of the limited company named ‘General Mining and Metallurgical Company Larko’ [ΝΕW LARKO], Case number SA.37954 (2013/N) (OJ 23/05/2014, C 156) and |
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annul and set aside the Commission Decision of 27 March 2014 [SG–Greffe (2014) D/4628/28/03/2014] in connection with the sale of certain assets of the limited company named ‘General Mining and Metallurgical Company Larko’ [ΝΕW LARKO], Case number SA.37954 (2013/N) (OJ 23/05/2014, C 156) and

| — | order the defendant to pay the applicant’s costs. |
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order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action the applicant, in the first place, maintains that it has a clear legal interest to seek the annulment of the contested decision, since the decision affects it directly and distinguishes the applicant individually just as in the case of the person addressed, and, in the second place, puts forward three pleas in law in support of annulment.

| 1. | The first plea in law is based on the infringement of Article 108(2) TFEU, and Article 14 of Regulation No 659/1999. (1) The applicant maintains that the Commission decided by the contested act that the sale notified by the Hellenic Republic of assets of ΝΕW LARKO described in the decision will not lead to economic continuity between it and the owner(s) of the assets which will be sold. First, the Commission erroneously considers that the assets being sold represent only a part of the activities of ΝΕW LARKO, whereas the truth is that those assets represent the main part of its activities and that those which remain in the possession of the transferor are economically worthless for the most part and that it is impossible for any productive use to be made of them in isolation. Thus, the plant at Larymna (for sale in connection with the proposed privatisation) is its principal asset, mainly because it is there that all the ore extracted at the sites of ΝΕW LARKO in the whole of Greece is brought and there alone that smelting takes place. Second, the contested decision also erred in accepting the information that the assets which will be auctioned will not belong to ΝΕW LARKO but to the Greek State, whereas the truth is that the ore-smelting plant at Larymna, both the general ore-smelting installations and the smelter support installations, will never fall into the ownership of the Greek State but will remain even after the possible expiry of the contract for the lease of mining rights in the ownership of ΝΕW LARKO, because those rights are entirely owned by it. As a direct consequence of the above consideration the business of ΝΕW LARKO will be continued by the new entity/purchaser, so that it is inadmissible that the latter should be relieved of the obligation to pay to the applicant the amounts which the transferring ΝΕW LARKO owes to it. |
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1.

The first plea in law is based on the infringement of Article 108(2) TFEU, and Article 14 of Regulation No 659/1999. (1) The applicant maintains that the Commission decided by the contested act that the sale notified by the Hellenic Republic of assets of ΝΕW LARKO described in the decision will not lead to economic continuity between it and the owner(s) of the assets which will be sold. First, the Commission erroneously considers that the assets being sold represent only a part of the activities of ΝΕW LARKO, whereas the truth is that those assets represent the main part of its activities and that those which remain in the possession of the transferor are economically worthless for the most part and that it is impossible for any productive use to be made of them in isolation. Thus, the plant at Larymna (for sale in connection with the proposed privatisation) is its principal asset, mainly because it is there that all the ore extracted at the sites of ΝΕW LARKO in the whole of Greece is brought and there alone that smelting takes place. Second, the contested decision also erred in accepting the information that the assets which will be auctioned will not belong to ΝΕW LARKO but to the Greek State, whereas the truth is that the ore-smelting plant at Larymna, both the general ore-smelting installations and the smelter support installations, will never fall into the ownership of the Greek State but will remain even after the possible expiry of the contract for the lease of mining rights in the ownership of ΝΕW LARKO, because those rights are entirely owned by it. As a direct consequence of the above consideration the business of ΝΕW LARKO will be continued by the new entity/purchaser, so that it is inadmissible that the latter should be relieved of the obligation to pay to the applicant the amounts which the transferring ΝΕW LARKO owes to it.

| 2. | The second plea in law is based on the infringement of Article 296(2) TFEU. The applicant maintains that the reasons stated in the contested decision are inadequate, since there is no examination whatsoever of whether the transfer of assets at issue on the basis of the proposed privatisation which was reviewed by the Commission distorts or threatens to distort competition. The Commission failed to examine the product market, and moreover failed to identify that market and the sector of production. The Commission was satisfied with statements from the Greek State, which it in no way investigated as it ought to have done. It did not make even the most rudimentary enquiry to obtain the opinion of ΝΕW LARKO, although it is directly affected by the Commission’s decision, thereby infringing ΝΕW LARKO’s fundamental rights, such as the right to equal treatment vis-à-vis the Greek State, the principle of legitimate expectations as to the conduct of EU institutions, and its right to be heard, before issuing a decision which affects it. |
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2.

The second plea in law is based on the infringement of Article 296(2) TFEU. The applicant maintains that the reasons stated in the contested decision are inadequate, since there is no examination whatsoever of whether the transfer of assets at issue on the basis of the proposed privatisation which was reviewed by the Commission distorts or threatens to distort competition. The Commission failed to examine the product market, and moreover failed to identify that market and the sector of production. The Commission was satisfied with statements from the Greek State, which it in no way investigated as it ought to have done. It did not make even the most rudimentary enquiry to obtain the opinion of ΝΕW LARKO, although it is directly affected by the Commission’s decision, thereby infringing ΝΕW LARKO’s fundamental rights, such as the right to equal treatment vis-à-vis the Greek State, the principle of legitimate expectations as to the conduct of EU institutions, and its right to be heard, before issuing a decision which affects it.

| 3. | The second plea in law is based on the argument that the contested decision contains contradictory statements the result of which is that the decision is unjustified and should be annulled. Specifically, the applicant maintains that, while the Commission in the contested decision accepts that all the assets to be sold should be viewed as the whole, since the Commission connects the termination of the lease of mining rights as part of the proposed privatisation with the parallel auctioning and application of the [‘shoot-out’] clause, the Commission then decides that the important value is book value, in order to arrive at the conclusion that, since the ratio of the sold assets to the remaining assets, erroneously, is in the proportion of 1 to 3 in terms of book value, for that reason there is no continuity of economic activity. Further, the Commission gives no reasons all in the decision for its taking the view that the employment contracts of the staff of NEW LARKO are not transferred to the acquiring entity, fundamentally disregarding the ‘Union acquis’ on that subject. |
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3.

The second plea in law is based on the argument that the contested decision contains contradictory statements the result of which is that the decision is unjustified and should be annulled. Specifically, the applicant maintains that, while the Commission in the contested decision accepts that all the assets to be sold should be viewed as the whole, since the Commission connects the termination of the lease of mining rights as part of the proposed privatisation with the parallel auctioning and application of the [‘shoot-out’] clause, the Commission then decides that the important value is book value, in order to arrive at the conclusion that, since the ratio of the sold assets to the remaining assets, erroneously, is in the proportion of 1 to 3 in terms of book value, for that reason there is no continuity of economic activity. Further, the Commission gives no reasons all in the decision for its taking the view that the employment contracts of the staff of NEW LARKO are not transferred to the acquiring entity, fundamentally disregarding the ‘Union acquis’ on that subject.

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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.

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