Judgment of the General Court (Second Chamber) of 13 December 2017 — Greece v Commission

(Case T‑314/15)

(State aid — Aid in favour of an undertaking which has concluded a concession to operate container terminals in the Port of Piraeus — Decision declaring the aid to be incompatible with the internal market — Right of defence — Duty to give reasons — Concept of State aid — Aid to facilitate the development of certain economic activities or of certain economic areas — Incentive effect of the aid — Necessity of the aid — Determination of the amount of aid)

1. Union law—Principles—Rights of defence—Whether applicable to administrative procedures initiated by the Commission—Examination of plans to grant aid—Scope (Art. 108(2) TFEU) (see paras 25, 38)

2. State aid—Examination by the Commission—Decision to open the formal examination procedure provided for in Article 108(2) TFEU—Obligation to state reasons—Scope—Obligation to inform the Member State concerned before the adoption of that decision—None (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 6(1)) (see paras 26, 27, 34)

3. State aid—Examination by the Commission—Decision to open the formal examination procedure provided for in Article 108(2) TFEU—Evolution of the Commission’s position at the conclusion of the procedure—Divergence between the opening decision and the final decision—Lawfulness (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 7) (see para. 28)

4. State aid—Meaning—Criteria for assessment—Cumulative conditions (Art. 107(1) TFEU) (see para. 43)

5. State aid—Meaning—State intervention mitigating the burdens normally included in the budget of an undertaking—Fiscal measures granting tax exemptions or tax reductions or allowing deferral of payment—Included (Art. 107(1) TFEU) (see paras 44, 45, 48)

6. State aid—Meaning—Grant of an advantage to the beneficiaries—Objectives pursued by the State—Irrelevant (Art. 107(1) TFEU) (see para. 46)

7. State aid—Meaning—Selective nature of the measure—Distinction between the requirement for selectivity and the concomitant detection of an economic advantage and between an aid scheme and individual aid (Art. 107(1) TFEU) (see paras 77-79)

8. State aid—Meaning—Selective nature of the measure—Ad hoc measure concerning a single undertaking—Included—Need to compare the beneficiary with other operators in a comparable factual and legal situation having regard to the objective pursued by the measure—None (Art. 107(1) TFEU) (see para. 81)

9. State aid—Meaning—Selective nature of the measure—Measure conferring a tax advantage—Appropriate criterion to establish the selectivity of the measure—Introduction between operators that are in a comparable factual and legal situation of a distinction that is not justified by the nature and general structure of a general tax system (Art. 107(1) TFEU) (see paras 85-88, 95, 97, 98)

10. State aid—Meaning—Selective nature of the measure—Measure having an economic or industrial policy objective—Irrelevant (Art. 107(1) TFEU) (see paras 94, 102-105)

11. Acts of the institutions—Statement of reasons—Obligation—Scope—Plea alleging absence or inadequacy of the statement of reasons—Plea alleging lack of a basis of the statement of reasons—Distinction (Art. 296 TFEU) (see paras 109, 111)

12. State aid—Commission decision classifying a measure as State aid—Obligation to state reasons—Scope—Characterising of the adverse effect on competition and of the affecting of trade between Member States (Arts 107(1) TFEU and 296 TFEU) (see paras 146-149)

13. State aid—Prohibition—Exceptions—Aid capable of being regarded as compatible with the internal market—Discretion of the Commission—Complex evaluation of economic matters—Possibility of adopting guidelines—Judicial review—Limits (Art. 107(1) and (3) TFEU) (see paras 160-162)

14. State aid—Prohibition—Exceptions—Aid capable of benefiting from the derogation under Article 107(3)(c) TFEU—Operating aid—Not included (Art. 107(3)(c) TFEU) (see para. 164)

15. State aid—Prohibition—Exceptions—Aid capable of being regarded as compatible with the internal market—Conditions (Art. 107(3) TFUE) (see para. 180)

16. State aid—Compatibility of aid with the internal market—Aid improving the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU—None (Art. 107(3) TFEU) (see para. 181)

17. State aid—Decision of the Commission finding aid incompatible with the internal market and ordering its recovery—Obligations of the Member States—Obligation of recovery—Scope—Restoration of the prior situation (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 14) (see paras 197-200)

18. State aid—Recovery of unlawful aid—Calculation of the amount of aid to be recovered and determination of the addressees of the orders for recovery—Member State experiencing difficulties—Obligation of the Commission and the Member State to cooperate (Art. 4(3) TEU; Art. 107(2) TFEU) (see para. 201)

Re:

Action under Article 263 TFEU for the annulment of Commission Decision (EU) 2015/1827 of 23 March 2015, in relation to the State aid SA.28876 (12/C) (ex CP 202/2009) which Greece granted to the undertakings Piraeus Container Terminal SA and Cosco Pacific Ltd (OJ 2015 L 269, p. 93).

Operative part

The Court:

1. Dismisses the action;