Judgment of the General Court (Seventh Chamber) of 8 January 2015 — Club Hotel Loutraki and Others v Commission

(Case T‑58/13)

‛State aid — Operation of Video Lottery Terminals — Grant by the Hellenic Republic of an exclusive licence — Decision finding no State aid — Failure to initiate the formal investigation procedure — Serious difficulties — Procedural rights of the interested parties — Obligation to state reasons — Right to effective judicial protection — Advantage — Joint assessment of the notified measures’

1. State aid — Examination by the Commission — Preliminary review and main review — Compatibility of aid with the internal market — Difficulties of assessment — Commission’s duty to initiate the main review procedure — Serious difficulties — Concept — Objective nature — Circumstances enabling the existence of such difficulties to be determined — Burden of proof incumbent on the applicant (Arts 107(1) TFEU and 108(2) and (3) TFEU; Council Regulation No 659/1999, Arts 4(4), and 13(1)) (see paras 36-40)

2. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Adoption of a decision following the preliminary phase taking notice of the undertakings of the applicant State — Compatibility with Article 7(2) and (3) of Regulation No 659/1999 (Art. 108(3) TFEU; Council Regulation No 659/1999, Art. 7(2) and (3)) (see paras 42-44)

3. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Obligation of the Commission to open the main procedure where there are serious difficulties — Request for additional information not in itself revealing the existence of serious difficulties — Conditions (Art. 108(2) and (3) TFEU) (see paras 45-47)

4. State aid — Planned aid — Examination by the Commission — Preliminary phase — Duration — Mandatory nature of the two-month time-limit established to ensure legal certainty for the notifying Member State — Consequences where that time-limit exceeded — Significant exceeding of the time-limit capable of constituting an indication of the existence of serious difficulties requiring the main procedure to be opened — Assessment on a case-by-case basis (Art. 108(2) and (3) TFEU; Council Regulation No 659/1999, Arts 1(h), and 4(5)) (see paras 56, 57, 59, 61, 62)

5. Acts of the institutions — Statement of reasons — Obligation — Scope (Arts 296 TFEU and 337 TFEU) (see paras 71, 72)

6. State aid — Commission decision finding aid to be incompatible with the common market — Characterising of the adverse effect on competition and of the affecting of trade between Member States — Obligation to state reasons — Scope (Arts 107(1) TFEU and 296 TFEU) (see paras 88, 89, 91)

Re:

APPLICATION for annulment of Commission Decision C(2012) 6777 final of 3 October 2012 on State aid SA.33988 (2011/N) — Greece — Arrangements for the extension of OPAP’s exclusive right to operate 13 games of chance and the granting of an exclusive licence to operate 35000 Video Lottery Terminals for a period of 10 years.

Operative part

The Court:

1. Dismisses the action;

2. Orders Club Hotel Loutraki AE, Vivere Entertainment AE, Theros International Gaming, Inc., Elliniko Casino Kerkyras, Casino Rodos, Porto Carras AE and Kazino Aigaiou AE to bear their own costs and to pay those incurred by the European Commission and the Organismos Prognostikon Agonon Podosfairou AE (OPAP);