Case T-384/08: Action brought on 11 September 2008 — Elliniki Nafpigokataskevastiki and Others v Commission
Date: 2008-09-11
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), control of State aid, indemnification

C 301/48

EN

Official Journal of the European Union

22.11.2008

Pleas in law and main arguments

By way of the present application, the applicant challenges the
Commission decision notified to the latter by letter dated 2 July
2008 by which the Commission refused to disclose the names
of the companies and of the individuals involved in the so-
called ‘Eximo’ case which are cited in the documents disclosed
to the applicant by the Commission in reply to its initial appli-
cation.

The applicant seeks to annul the contested decision on the basis
of the following grounds:

first

4(2)

indent

4(1)(b),

of Regulation

First, according to the applicant,
the contested decision is
vitiated by a manifest error of law in so far as the Commission
wrongly interpreted and relied on the exceptions provided in
Article
(EC)
No 1049/2001 (1) without carrying out an assessment of fact or
setting out the reasons for its refusal. In addition, the applicant
submits that the Commission made an error of appreciation of
the facts in finding that the commercial interests of the compa-
nies concerned and the privacy and the integrity of the indivi-
duals involved would have been seriously undermined should
their names be disclosed. Furthermore, the applicant contends
that, by opting for an extensive interpretation of
the term
‘protection of commercial interests’ and ‘protection of privacy
and integrity of the individual’, the Commission violated the
principle of the widest possible access to documents as set out
in Article 1(a) of Regulation (EC) No 1049/2001.

the applicant submits

Second,
the contested decision
infringed Article 4(4) of Regulation (EC) No 1049/2001 in so
far as the Commission failed to grant the applicant full access to
a document which was already publicly available.

that

Third, the applicant submits that the Commission violated the
obligation to state reasons in accordance with Article 253 EC,
by failing to inform the applicant on the grounds on which it
based its decision and by simply referring to the exceptions set
out in Article 4(4) of Regulation (EC) No 1049/2001.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

Action brought on 11 September 2008 — Elliniki
Nafpigokataskevastiki and Others v Commission

(Case T-384/08)

(2008/C 301/82)

Language of the case: English

Parties

Applicants: Elliniki Nafpigokataskevastiki AE Chartofylakeiou
(Skaramangas,Greece) Howaldtswerke-Deutsche Werft GmbH

(Kiel, Germany)
(Hamburg, Germany) (represented by: U. Soltész, lawyer)

and ThyssenKrupp Marine Systems AG

Defendant: Commission of the European Communities

Form of order sought

— Order the annulment of Article 16 of the decision of the
Commission of 2 July 2008 on the Measures No C 16/2004
(ex NN 29/2004, CP 71/2002 and CP 133/2005) imple-
mented by Greece in favour of Hellenic Shipyards; and

— Order the Commission to pay the applicant's costs of the

present proceedings.

Pleas in law and main arguments

By means of their application the applicants seek partial annul-
ment of Commission Decision C(2008) 3118 final, of 2 July
2008, concerning sixteen measures implemented by the Greek
State in favour of Hellenic Shipyards SA (‘HSY’) and, in particu-
lar, annulment of Article 16 of the said decision according to
which the Commission decided that the Indemnification Guar-
antee granted by HSY's previous owner, Hellenic Bank of Indus-
trial Development (‘ETVA’), to the consortium (1) that acquired
HSY through a share purchase agreement
(Howaldtswerke-
Deutsche Werft (2) and Ferrostaal),
in the event of state aid
recovery from HSY, constitutes illegal state aid and should be
stopped immediately.

The applicants claim that the Commission incorrectly consid-
ered that the Indemnification Guarantee in the privatisation
agreement was given at a time when ETVA was under state
control. According to the applicants, the Indemnification Guar-
antee was only validly agreed after ETVA's privatisation and
therefore constituted a measure negotiated between private
parties, not imputable to the Greek State and therefore cannot
be regarded as state aid.

Moreover, the applicants submit that the Commission's allega-
tion that the two separate clauses in the addendum to the
purchase sharing agreement constituted one overall mechanism
through which HSY would benefit is erroneous. In fact, the
applicants submit that the two guarantees were granted inde-
pendently of each other. In addition, the applicants contend that
the Commission wrongly considered that HSY benefited from
the Indemnification Guarantee since, having regard to the facts
of the case, only Piraeus Bank could be considered to have bene-
fited form it.

The applicants argue that the Commission was wrong in consid-
ering that an economic advantage was conferred on HSY by
virtue of the Indemnification Guarantee which (i) is a standard
term under private law, (ii) was given after a dully carried out
assessment and (iii) conforms to the conduct of a private
vendor.

22.11.2008

EN

Official Journal of the European Union

C 301/49

it

is

submitted that

Further,
the Commission misapplied
Article 88(2) EC and Article 14(1) of Regulation (EC)
No 659/1999 in targeting Elliniki Nafpigokataskevastiki, which
was not the beneficiary of the aid, by ordering it to stop the
Indemnification Guarantee.

Also, the applicants claim that the Commission's argument alle-
ging circumvention of the effet utile of recovery wrongly relies
on the assumption that circumvention occurs by the simple
granting of the Indemnification Guarantee.

Finally, the applicants submit that the Commission misapplied
Article 296 EC in that it does not allow HSY to carry on a
certain degree of civil activities which are of an ancillary nature
in order to sustain the operation of the whole shipyard.

(1) This consortium founded Elliniki Nafpigokataskevastiki in order to

harbour the holding in HSY.

(2) HDW is wholy owned by ThyssenKrupp Marine Systems which also
acquired Ferrostaaal's shares in Elliniki Nafpigokataskevastiki in 2005.

Action brought on 1 September 2008 — Evropaïki
the
Dynamiki v Office for Official Publications of

European Communities

(Case T-387/08)

(2008/C 301/83)

Language of the case: English

Parties

Systimata
Evropaïki Dynamiki — Proigmena
Applicant:
Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis, lawyer)

Defendant: Office for Official Publications of
Communities

the European

Form of order sought

— Annul the decision of the Office for Official Publications of
the European Communities (OPOCE) to reject the bid of
for Tender
the applicant,
AO 10185 for ‘Computing Services — maintenance of the
SEI-BUD/AMD/CR
services’
(OJ 2008/S 43-058884) communicated to the applicant by

filed in response to open Call

systems

related

and

letter dated 20 June 2008 and to award the contract to the
successful contractor;

— Order OPOCE to pay the applicant's damages suffered on
the tendering procedure in question in the

account of
amount of EUR 1 444 930;

— Order OPOCE to pay the applicant's legal and other costs
and expenses incurred in connection with this application,
even if the current application is rejected.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the
defendant's decision to reject its bid submitted in response to a
call for an open tender AO 10185 regarding the ‘Computing
Services — maintenance of the SEI-BUD/AMD/CR systems and
related services’ and to award the contract to the successful
contractor. The applicant further requests compensation for the
alleged damages on account of the tendering procedure.

In support of its claims the applicant argues that by awarding
the aforementioned tender to another bidder the defendant
failed to comply with its obligations foreseen in the financial
regulation (1),
Directive
2004/18/EC (2) as well as with the principles of transparency,
equal treatment and proportionality.

implementing

rules

and

its

The applicant moreover submits that the contracting authority
infringed its obligation, foreseen in the above mentioned applic-
able rules, to sufficiently state reasons for its decision. Further-
more, the applicant alleges that the contracting authority used
the criteria that were not expressively included in the call for
tender, mixed evaluation with award criteria, therefore infringing
the tender specifications, and committed several manifest errors
of assessment which resulted in the rejection of the applicant's
bid.

The applicant requests, hence, that the decision to reject its bid
and to award the contract to the successful tenderer be annulled
in addition to the
and that the defendant is ordered to pay,
applicant's
the
damages suffered by the applicant on account of the tendering
procedure.

related to the proceedings,

legal expenses

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ L 248, p. 1).

(2) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ L 134, p. 114).

the European Parliament and of