Judgments nº C-100/16 P of Court of Justice, March 09, 2017

Issuing Organization:Court of Justice
Decision Number:C-100/16 P
Resolution Date:March 09, 2017
 
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(Appeal - State aid - Transfer of mines at a price below real market value - Exemption from taxes on the transfer transaction - Assessment of the amount of the advantage granted)

In Case C-100/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 February 2016,

Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou, represented by V. Christianos and I. Soufleros, dikigoroi,

appellant,

the other parties to the proceedings being:

Hellenic Republic,

applicant at first instance,

European Commission, represented by É. Gippini Fournier and A. Bouchagiar, acting as Agents,

defendant at first instance,

THE COURT (Tenth Chamber),

composed of M. Berger, President of the Chamber, A. Borg Barthet and E. Levits (Rapporteur), Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou (‘Ellinikos Chrysos’) asks the Court to set aside the judgment of the General Court of 9 December 2015, Greece and Ellinikos Chrysos v Commission (T-233/11 and T-262/11, ‘the judgment under appeal’, EU:T:2015:948), in so far as, by that judgment, the General Court dismissed its action for the annulment of Commission Decision 2011/452/EU of 23 February 2011 on the State aid C 48/08 (ex NN 61/08) implemented by Greece in favour of Ellinikos Chrysos AE (OJ 2011 L 193, p. 27, ‘the decision at issue’).

Background to the dispute and the decision at issue

2 Until 2003 TVX Hellas AE operated the Cassandra (Greece) gold mines. Under an extrajudicial settlement of 12 December 2003, the Hellenic Republic acquired the ownership of the assets of TVX Hellas for EUR 11 million and, released it, together with TVS Hellas’ parent company TVX Gold Inc., from any administrative or criminal liability or any obligation for possible infringements of environmental protection legislation.

3 Article 51 of Law No 3220/2004 ratified that settlement, whereas Article 52 of that law ratified the contract whereby the Hellenic Republic transferred the assets of TVX Hellas to Ellinikos Chrysos for the sum of EUR 11 million. Those assets consist of gold mines, land and gold stocks. In addition, the acquirer undertook, first, to carry out the actions and procedures for environmental protection and maintenance within the time limit provided for granting the necessary authorisations and approvals, and, second, to commence the measures necessary for the start of the operation of the Cassandra mines within a period of three months. Third, the acquirer undertook to complete an investment project on the development of those mines and on the construction and operation of the gold processing plant, within a period of 24 months.

4 In addition, Article 5 of that contract stipulated that the transaction transferring assets to Ellinikos Chrysos was exempt from duties and taxes.

5 After having received a complaint in connection with that transaction, the European Commission sent requests for additional information from the Greek authorities. By decision of 10 December 2008, the Commission opened the formal investigation procedure under Article 108(2) TFEU. In that context, Ellinikos Chrysos submitted observations.

6 By the decision at issue, the Commission considered, in essence, that the transaction transferring TVX Hellas’ assets to Ellinikos Chrysos by the Hellenic Republic constituted aid incompatible with the internal market and that that Member State had to recover it. By that decision, the Commission took the view, first, that the Cassandra mines had been sold to Ellinikos Chrysos at a price below market value and, second, that the exemption from registration duties or other taxes relating to the transaction transferring the disputed land constituted an additional element of the aid at issue. The total amount of the aid was set at EUR 15.34 million.

The procedure before the General Court and the judgment under appeal

7 In support of its action for annulment of the decision at issue, Ellinikos Chrysos put forward two pleas in law, the first of which was subdivided into several heads of claim.

8 Under the second head of claim of the first plea in law, which the General Court summarised in paragraph 65 of the judgment under appeal, Ellinikos Chrysos claimed that the Commission had incorrectly used and assessed the expert report on the appraisal of the Cassandra mines carried out in 2004 by an international consulting firm specialised in the mining sector on behalf of European Goldfields Ltd, as part of its plans to increase its capital in Ellinikos Chrysos (‘the expert report’), on which the Commission had relied to assess the value of those mines. The General Court referred to the arguments relating to the context in which that report had been drawn up, the date it was drawn up and the definition of the operational mines referred to in it, all of which, it was argued, rendered it unsuitable for an assessment of the value of those mines. Moreover, the General Court stated, in paragraph 92 of the judgment under appeal, that it was common ground that Ellinikos Chrysos did not dispute the reliability and objectivity of that report.

9 After having rejected the argument concerning the date when the expert report had been drawn up, the General Court found that that report stated that a mine that was operating or was subject to a feasibility study was at the ‘near-production’ stage, which was the case, still according to that report, of the Stratoni, Olympiada and Skouries mines, which are included in the Cassandra operation.

10 Therefore, in paragraph 99 of the judgment under appeal, the General Court rejected the second head of claim of the first plea of law.

11 In...

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