2011/647/: Commission Decision of 24 May 2011 on partial privatisation measure C 15/10 (ex NN 21/10) implemented by Greece for Mont Parnès casino (notified under document C(2011) 3505) Text with EEA relevance

• Published date: 04 October 2011
• Official Gazette Publication: Gazzetta ufficiale dell’Unione europea, L 258, 4 ottobre 2011,Diario Oficial de la Unión Europea, L 258, 4 de octubre de 2011,Journal officiel de l’Union européenne, L 258, 4 octobre 2011

4.10.2011 EN Official Journal of the European Union L 258/74

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COMMISSION DECISION

of 24 May 2011

on partial privatisation measure C 15/10 (ex NN 21/10) implemented by Greece for Mont Parnès casino

(notified under document C(2011) 3505)

(Only the Greek text is authentic)

(Text with EEA relevance)

(2011/647/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments pursuant to the provisions cited above and having regard to their comments (1),

Whereas:

1. PROCEDURE

(1) By letter of 23 June 2002, Egnatia AE, which following a merger has since been taken over by Athinaiki Techniki and which is a member of the Casino Attikis consortium (‘CA’ or ‘the complainant’), submitted a complaint to the European Commission about an alleged breach of EU internal market rules, concerning an allegedly non-transparent and discriminatory tender procedure followed by the Greek authorities in the sale of 49 % of the capital of Elliniko Kazino Parnithas AE (‘Mont Parnès casino’) to the successful bidder, the Hyatt Regency consortium (‘HR’ or ‘the alleged beneficiary’) (2).

(2) By letter of 3 October 2002 the European Commission’s Internal Market Directorate-General (‘DG Internal Market’) transferred a copy of the file to the Competition Directorate-General (‘DG Competition’) for a parallel analysis of the case under EU State aid rules.

(3) By e-mail of 9 December 2002 the legal representative of the complainant provided the relevant Commission departments with additional explanations on the case.

(4) By letter of 24 January 2003 the Commission communicated the State aid complaint to the Greek authorities and invited Greece to clarify the issues it brought forward. The Greek authorities replied on 4 March 2003.

(5) On 27 January 2003 Commission staff met the legal representative of the complainant.

(6) On 12 February 2003 and 22 August 2003 the legal representative of the alleged beneficiary submitted supporting documents to the Commission services.

(7) By letters of 31 March 2003 and 16 May 2003 the complainant submitted supplementary information to DG Competition.

(8) On 10 April 2003 Commission staff met the representative of the alleged beneficiary.

(9) During the period between 15 July 2003 and 16 September 2003 the Commission had several exchanges with the complainant regarding the separate assessment of the State aid issues, and it drew the attention of the complainant to its decision-making practice according to which the disposal of a public asset in the context of a tendering procedure does not constitute State aid where the procedure has been carried out transparently and without discrimination. Consequently, the Commission informed the complainant that it would not take a position until DG Internal Market had completed its examination of the procedure for the award of the public contract.

(10) By letters of 22 January 2004 and 4 August 2004 DG Internal Market closed the investigation, considering that there was no defect in the procedure for awarding the contract. By letter of 2 June 2004 DG Competition informed the complainant that it had closed the State aid complaint pursuant to Article 20(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (3).

(11) On 18 February 2005 the complainant brought an action for annulment of the Commission’s decision to close the case before the Court of First Instance (now the General Court).

(12) By order of 26 September 2006, the Court of First Instance dismissed the action as inadmissible since it considered that the letter did not constitute an act open to challenge under Article 230 of the Treaty establishing the European Community (EC Treaty) (now Article 263 of the Treaty on the Functioning of the European Union (TFEU)) (4).

(13) On 18 December 2006 the complainant brought an appeal against the order of the Court of First Instance before the Court of Justice.

(14) By judgment of 17 July 2008 (5), the Court of Justice set aside the order; it found that the contested act did constitute an act open to challenge that was not in conformity with the Commission’s obligations under the Procedural Regulation, and referred the case back to the Court of First Instance.

(15) By letter of 26 September 2008 DG Competition withdrew the closure letter of 2 June 2004 and reopened the case.

(16) By order of 29 June 2009 the Court of First Instance found that since the letter had been withdrawn there was no longer any need to issue a decision (6). This order of the Court of First Instance was appealed by the complainant on 7 September 2009, on the grounds that the Court should have deemed the withdrawal of the letter unlawful and should have annulled it.

(17) By e-mail of 11 September 2009 the complainant supplied further information to the Commission.

(18) On 14 October 2009 Commission staff met representatives of the complainant. After this meeting, the complainant supplied further information to the Commission in several exchanges.

(19) By letter dated 21 October 2009 the Commission requested additional information from Greece. By letter of 13 November 2009 Greece asked for more time to respond, which was granted by the Commission by e-mail of 18 November 2009. On 11 and 14 January 2010 Greece replied to the Commission.

(20) By judgment of 6 May 2010 the Court of Justice responded to a request for a preliminary ruling under Article 234 EC (now Article 267 TFEU) from the Simvoulio tis Epikreatias (‘Council of State’), in particular concerning the application of the EU public procurement rules to the tendering procedure in question. The Court of Justice concluded, inter alia, that, taken as a whole, a contract such as the one to be awarded following the tender in question did not fall within the scope of the Directives on public contracts (7). In addition, the Court noted that this conclusion did not preclude the fact that such a contract must observe the basic rules and general principles of the Treaty, in particular those on freedom of establishment and free movement of capital.

(21) By letter of 6 July 2010 the Commission informed Greece that it had decided to open the procedure laid down in Article 108(2) TFEU in respect of the measure (the ‘opening decision’).

(22) The Commission’s decision to open the procedure was published in the Official Journal of the European Union (8). The Commission invited interested parties to submit their comments on the measure.

(23) Following the opening of the procedure, the Commission received comments from two interested parties, namely the representatives of the alleged beneficiary (Athens Resort Casino Holdings (9), on behalf of HR) (10) and from representatives of the complainant (Club Hotel Casino Loutraki, on behalf of CA) (11). By letter of 6 August 2010, Greece submitted its comments. The comments of both interested parties were sent by letter of 29 October 2010 to Greece, which reacted by letter of 25 November 2010.

(24) On 16 December 2010 (12), the Court of Justice ruled that the General Court (formerly the Court of First Instance) had been wrong in determining that there was no case to answer in the original challenge to the Commission’s ‘administrative closure’ of the case.

2. DESCRIPTION OF THE MEASURE

(25) In October 2001 the Greek authorities initiated a procedure for the award of a public contract with a view to disposing of 49 % of the capital of Mont Parnès casino (13). There were two competing applicants, namely ‘Kazino Attikis’ (Casino Attikis or CA) and the consortium named Hyatt Regency — Elliniki Technodomiki (the Hyatt Regency consortium or HR), both of which were selected to participate in the second stage of the tendering procedure (14), under the terms of the relevant national provisions. Following proceedings which it is alleged were invalid, the contract was awarded to HR. The following paragraphs 26 to 29 describe the events leading to this award, according to the information available to the Commission.

(26) According to the applicable national provisions, the winning candidate would be declared through bidding (ascending price auction), the initial sale price having been set at EUR 80 million. The Tender Committee would unseal the envelopes submitted by the candidates, containing each candidate’s financial bid, and would announce each bid in turn. The candidate having tendered the lower bid would be entitled to submit their new bid, enclosed in a sealed envelope, in the next round. Such a new bid would have to be at least equal to the initially higher bid increased by 1 % (15). This subsequent bidding would carry on indefinitely in separate rounds, until one of the bidders withdrew, in which case the last bidder would be declared the provisional highest bidder. The minutes naming the provisional highest bidder would be submitted by the Tender Committee to the Board of Directors of the Hellenic Tourism Development Authority (ETA).

(27) During the first round, the two candidates submitted their bids at the same time, in sealed envelopes, on 31 May 2002, at the headquarters of ETA. CA’s bid was EUR 91 183 652, whereas the HR’s bid was EUR 80 075 000. However, the envelope of the latter contained, apart from its bid, a

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