Background to the dispute
2As part of its economic adjustment programme, the Hellenic Republic implemented a privatisation programme. Larco General Mining & Metallurgical Company SA (‘Larco’), a Greek mining and metallurgical undertaking, is among the companies to be privatised. That company specialises in the extraction and processing of laterite ore, the extraction of lignite, and the production of ferronickel and its by-products. Its activities include exploration, development, mining, smelting and trading of its products worldwide.
3In March 2012, the Hellenic Republic Asset Development Fund, a company set up to manage the privatisation process, informed the Commission of the planned privatisation of Larco.
4The Commission therefore carried out a preliminary examination of those plans, in order to verify that it did not contain elements of State aid.
5It sent a questionnaire to the Greek authorities. It is clear from the replies thereto, received by the Commission on 16March 2012, that Larco had already benefited from measures taken by the Greek State. Next, the Commission requested additional information, by its emails of 18April 2012, 24April 2012, 5July 2012, 22August 2012 and 7December 2012, and by its letters of 4May 2012 and 14January 2013, to which the Greek authorities replied on 20April 2012, 26April 2012, 3October 2012, 13November 2012, 15November 2012, 7December 2012, 24December 2012 and 18January 2013. Meetings between the Commission services and representatives of the Greek authorities took place on 30April 2012 and 11September 2012 in Athens (Greece) and on 25January 2013 in Brussels (Belgium).
6By letter of 6March 2013, the Commission notified the Hellenic Republic of its decision to initiate the formal investigation procedure provided for in Article108(2) TFEU in respect of various measures, such as State guarantees granted to Larco for the years 2008, 2010 and 2011, a capital increase in 2009, a debt settlement agreement signed in 1998 and the possibility of submitting letters of guarantee amounting to EUR1.5million in lieu of paying a tax fine of EUR190million.
7The Commission then invited the Greek authorities and interested parties to submit their comments on those measures.
8The Commission received comments only from the Greek authorities on 30April 2013.
9On 27March 2014, the Commission adopted Decision 2014/539/EU on the State aid SA.34572 (13/C) (ex 13/NN) implemented by Greece for Larco General Mining & Metallurgical Company S.A. (OJ 2014 L254, p.24), Articles2 to 5 of which provide that the measures at issue are unlawful and incompatible with the internal market, that the aid must be recovered from Larco, and that information must be provided to the Commission, in particular as regards the measures already taken or planned to comply with that decision.
10Furthermore, since the Hellenic Republic had informed the Commission of its intention to sell certain of Larco’s assets by two separate calls for tender, the Commission adopted, on the same day, the decision on State aid SA.37954 (2013/N) relating to that sale (‘the decision on the sale of certain assets of Larco’). In the latter decision, the Commission states that, according to the information provided by the Hellenic Republic, the two tendering procedures would be conducted by the State and Larco respectively as owners of the assets affected by each call for tenders. In particular, the first call for tenders concerned the Larymna (Greece) smelting plant and 40% of the rights over the Agios Ioannis (Greece) laterite ore mining area, while the second relates to 73% of the Evia (Greece) laterite ore mining rights and all of the Kastoria (Greece) laterite ore mining rights. Following the two tender procedures and irrespective of their outcomes, Larco would be put into bankruptcy in accordance with national law, and its remaining assets would be sold as part of the liquidation procedure.
11In the light of that information, the Commission took the view, in the decision on the sale of certain assets of Larco, that provided that a series of provisions and conditions were complied with, that sale, first, did not constitute State aid and, second, would not lead to economic continuity between Larco and the owner or owners of the assets to be sold. The Commission considered that, in those circumstances, the question of recovery of the unlawful and incompatible State aid which had been paid to Larco would not concern the new owners of the assets intended for sale.
12The two-month time limit set by Article5 of Decision 2014/539 for the Hellenic Republic to provide information as to measures adopted to recover the aid in question expired on 28May 2014, without the Commission having received any information in that connection.
13By letter of 23June 2014, the Commission reminded the Greek authorities of their obligations under Decision 2014/539 and asked to be informed, within 20 working days, of the arrangements made for implementing that decision. Those authorities replied, by an email of 18July 2014, that they were not in a position to provide the Commission with information within that timeframe.
14Furthermore, the Commission also reminded the Hellenic Republic that it was required to comply with the time limit of four months set by Article4(2) of Decision 2014/539. That time limit expired, however, on 28July 2014, without the Commission having obtained information on the implementation of that decision.
15By letters of 6October 2014 and 18December 2015, the Commission requested that that Member State provide it with that information and organise an exchange of views concerning the arrangements for recovery of the aid in question. However, the Member State did not reply to those letters. During a meeting held in Athens between the Commission and the Greek authorities, the latter failed to put forward any argument capable of justifying the lack of measures taken to implement Decision 2014/539.
16On 2September 2016, taking the view that the Hellenic Republic had failed to comply with its obligations under Decision 2014/539, the Commission brought an action against that Member State, pursuant to Article108(2) TFEU, for failure to fulfil obligations, seeking a declaration that that Member State had failed to adopt, within the time limit prescribed, all the measures necessary to comply with that decision or, in any event, had not sufficiently informed the Commission of the measures adopted, contrary to the requirements of Article5 of that decision.
17On 9November 2017, by the judgment establishing the failure to fulfil obligations, the Court held that the Hellenic Republic had failed to adopt, within the prescribed period, all measures necessary to ensure implementation of Decision 2014/539 and had failed to inform the Commission of the measures taken pursuant to that decision.
Pre-litigation procedure
18Following delivery of the judgment establishing the failure to fulfil obligations, on 15November 2017 the Commission sent a letter to the Greek authorities asking them to recover the unlawful aid incompatible with the internal market, to which the latter authorities failed to reply.
19On 13November 2018, by letter sent to the Greek Minister for Finance, the Commission requested information on the status of the procedure for recovery of the aid in question and stated that it could bring an action for failure to fulfil obligations under Article260 TFEU. That letter also remained unanswered.
20On 25January 2019, finding that Decision 2014/539 had yet to be implemented, the Commission sent a letter of formal notice to the Hellenic Republic, in accordance with Article260(2) TFEU, inviting it to submit its observations within two months.
21On 29March 2019, that Member State replied to the letter of formal notice, explaining, in particular, the difficulties that it faced and its willingness to cooperate.
22It was in those circumstances that the Commission decided to bring the present action.
Developments during the course of the present proceedings
23On 14February 2020, the Hellenic Republic passed Law No4664/2020. Article21 of that law provides that Larco be placed under a special administration scheme, which is to lead, by means of a simplified and expeditious procedure, to the liquidation of that company (‘special administration’).
24Following an application by that Member State acting in its capacity as creditor of Larco, the Monomeles Efeteio Athinon (Court of Appeal (single judge), Athens, Greece), by Decision No1407/2020 of 28February 2020, put that company under special administration, which did not lead to that company ceasing operations. By the same decision, that court appointed a special administrator responsible for making an inventory of all of the assets and liabilities of that company and required to carry out a public tendering procedure for the purposes of the divestiture of that company’s assets.
25On 13March 2020, the Greek authorities, first, requested that Larco pay, within 30 calendar days, the amount corresponding to the aid declared unlawful and incompatible with the internal market, plus the applicable interest, and, second, informed the Commission of the special administration applicable to Larco.
26On 26March 2020, the Court of Justice, by its judgment in Larko v Commission (C‑244/18P, EU:C:2020:238), upheld the appeal brought by Larco against the judgment of the General Court of 1February 2018, Larko v Commission (T‑423/14, EU:T:2018:57), by which the General Court had dismissed the action brought by that company seeking annulment of Decision 2014/539. The Court of Justice set aside the judgment of the General Court in so far as the latter had rejected the first part of the first plea in law, which relates to the guarantee granted in 2008 by the Greek State to Larco in relation to a loan of EUR30million granted to that company by ATE Bank (‘measure No2’).
27Following the judgment of the Court of Justice, Larco raised objections to the amount of the aid relating to measure No2, which is to be recovered.
28On 7April 2020, Larco’s special administrator brought proceedings against the Hellenic Republic seeking arbitration of the dispute concerning the system of ownership of the Larymna smelting plant.
29By letter of 27April 2020, the Greek authorities informed the Commission of Larco’s objections concerning measure No2, to which the Commission replied by letter of 6May 2020.
30On 14May 2020, those authorities sent the Greek tax authorities a letter by way of which they requested full recovery of the aid in question from Larco.
31Following a request for information from the Court of Justice on the basis of Article62(1) of the Rules of Procedure of the Court of Justice, the Hellenic Republic produced documents concerning the recovery of the aid at issue.
32It is apparent from the reply to that request for information, first, that, on 22March 2021, Larco was still under special administration, in the light of the time required for the arbitration award relating to the system of ownership of the Larymna smelting plant to be delivered and of the fact that that special administration was to come to an end following a period of 12months which ran from the date on which it was implemented or a period of nine months which ran from the date of delivery of that award.
33Second, by that award, delivered on 24September 2020 and rectified on 8October 2020, the arbitration tribunal recognised the Greek State’s right of ownership over the Larymna smelting plant and mining complex. Larco continued to lease those assets from the Greek State.
34Third, further to that award, the two calls for tenders referred to in paragraph10 of the present judgment, by way of which the Hellenic Republic stated its intention to sell certain assets of Larco, were updated and the special administrator proceeded with the final preparations of the inventory of all of Larco’s assets and liabilities.
35Fourth, the procedures relating to those calls for tenders were conducted in parallel and were to be completed at the latest by 8July 2021.