# C_2013032EN.01001001.xml

| 2.2.2013 | EN | Official Journal of the European Union | C 32/10 |
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2.2.2013

EN

Official Journal of the European Union

C 32/10

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Appeal brought on 30 November 2012 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 20 September 2012 in Case T-169/08 DEI v Commission

(Case C-553/12 P)

2013/C 32/14

Language of the case: Greek

Parties

Parties

Appellant: European Commission (represented by: T. Khristoforou and A. Antoniadis, Agents, and A. Ikonomou, dikigoros)

Appellant:

Other parties to the proceedings: Dimosia Epikhirisi Ilektrismou (DEI), Hellenic Republic, Energiaki Thessalonikis AE, Elliniki Energia kai Anaptixi AE (H.E. & D.S.A.)

Other parties to the proceedings:

Form of order sought

Form of order sought

| — | set aside the General Court’s judgment of 20 September 2012 in Case T-169/08 in its entirety; |
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set aside the General Court’s judgment of 20 September 2012 in Case T-169/08 in its entirety;

| — | give final judgment in the matter if it is considered that the state of the proceedings so permits; |
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give final judgment in the matter if it is considered that the state of the proceedings so permits;

| — | order DEI to pay its own costs, and the Commission’s costs at first instance and on appeal. |
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order DEI to pay its own costs, and the Commission’s costs at first instance and on appeal.

Pleas in law and main arguments

Pleas in law and main arguments

| — | By the first ground of appeal, the Commission contends that in the judgment under appeal the General Court erred in law with regard to the interpretation and application of Article 86(1) EC in conjunction with Article 82 EC, as interpreted by the Court of Justice of the European Union. Furthermore, the General Court applied those two articles to the facts of the present case incorrectly, which also constitutes incorrect characterisation and misinterpretation of the evidence and incorrect interpretation of the basis of the contested decision adopted by the Commission. The General Court’s assessments are also based on incorrect, defective and insufficient reasoning, they distort the sense of and misinterpret the evidence and they distort the basis of the contested decision adopted by the Commission, because that decision demonstrated that the State measures at issue adopted by the Hellenic Republic affected the structure of the market and created inequality of opportunity on the lignite market — inequality which had the effect of allowing DEI, a public undertaking, to extend its dominant position from the primary lignite-supply market to the secondary market for the wholesale supply of electricity in Greece, preventing new competitors from entering the market. |
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By the first ground of appeal, the Commission contends that in the judgment under appeal the General Court erred in law with regard to the interpretation and application of Article 86(1) EC in conjunction with Article 82 EC, as interpreted by the Court of Justice of the European Union. Furthermore, the General Court applied those two articles to the facts of the present case incorrectly, which also constitutes incorrect characterisation and misinterpretation of the evidence and incorrect interpretation of the basis of the contested decision adopted by the Commission. The General Court’s assessments are also based on incorrect, defective and insufficient reasoning, they distort the sense of and misinterpret the evidence and they distort the basis of the contested decision adopted by the Commission, because that decision demonstrated that the State measures at issue adopted by the Hellenic Republic affected the structure of the market and created inequality of opportunity on the lignite market — inequality which had the effect of allowing DEI, a public undertaking, to extend its dominant position from the primary lignite-supply market to the secondary market for the wholesale supply of electricity in Greece, preventing new competitors from entering the market.

| — | According to the Commission, the judgment under appeal is also vitiated by error because it entirely overlooked the fact that the contested decision adopted by the Commission demonstrated that DEI’s preferential access to lignite, which was retained by the State measures at issue even after the liberalisation of the electricity market in Greece, and after the creation of the wholesale electricity supply market in May 2005, resulted in the structure of the market being affected because of the inequality of opportunity, thereby creating a situation in which DEI, solely by exercising its quasi-monopolistic rights to exploit lignite, was in a position to extend its dominant position from the primary to the secondary market. In that way DEI was led to engage in abusive behaviour on that secondary market, restricting or preventing access by new competitors (see, inter alia, the Court’s judgments in Raso, GB-Inno-BM, Connect Austria, Dusseldorp, CBEM and MOTOE). The extension of DEI’s dominant position from the primary to the secondary market and its retention on that market, and the undoubted competitive advantage that DEI enjoyed in electricity production because of the low cost of lignite, enabled DEI to feed electricity into the interconnected network in Greece at lower prices, in greater quantities and for a longer period, factors which amount to abusive behaviour (although the Court’s case-law does not require proof of behaviour of such kind, having regard to the specific facts of the present case). |
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According to the Commission, the judgment under appeal is also vitiated by error because it entirely overlooked the fact that the contested decision adopted by the Commission demonstrated that DEI’s preferential access to lignite, which was retained by the State measures at issue even after the liberalisation of the electricity market in Greece, and after the creation of the wholesale electricity supply market in May 2005, resulted in the structure of the market being affected because of the inequality of opportunity, thereby creating a situation in which DEI, solely by exercising its quasi-monopolistic rights to exploit lignite, was in a position to extend its dominant position from the primary to the secondary market. In that way DEI was led to engage in abusive behaviour on that secondary market, restricting or preventing access by new competitors (see, inter alia, the Court’s judgments in Raso, GB-Inno-BM, Connect Austria, Dusseldorp, CBEM and MOTOE). The extension of DEI’s dominant position from the primary to the secondary market and its retention on that market, and the undoubted competitive advantage that DEI enjoyed in electricity production because of the low cost of lignite, enabled DEI to feed electricity into the interconnected network in Greece at lower prices, in greater quantities and for a longer period, factors which amount to abusive behaviour (although the Court’s case-law does not require proof of behaviour of such kind, having regard to the specific facts of the present case).

Raso

GB-Inno-BM

Connect Austria

Dusseldorp

CBEM

MOTOE

| — | The contested decision adopted by the Commission also found that DEI’s competitors needed a diversified spectrum of sources, including access to sufficient quantities of lignite, in order for them to enter the electricity market, viably remain there and effectively participate in competition there. That fact should have been known both to the Hellenic Republic, which failed to grant operating licences for exploitable lignite deposits to DEI’s potential competitors, and to DEI when it exercised its quasi-monopolistic rights, using its dominant position on the primary lignite market as leverage to extend its dominant position to the secondary market for the wholesale supply of electricity and to maintain it there, with the result that it de facto obstructed or prevented access of the potential new competitors to the secondary market in question. |
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The contested decision adopted by the Commission also found that DEI’s competitors needed a diversified spectrum of sources, including access to sufficient quantities of lignite, in order for them to enter the electricity market, viably remain there and effectively participate in competition there. That fact should have been known both to the Hellenic Republic, which failed to grant operating licences for exploitable lignite deposits to DEI’s potential competitors, and to DEI when it exercised its quasi-monopolistic rights, using its dominant position on the primary lignite market as leverage to extend its dominant position to the secondary market for the wholesale supply of electricity and to maintain it there, with the result that it de facto obstructed or prevented access of the potential new competitors to the secondary market in question.

de facto

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