Background to the dispute
1Prior to 1994, three casinos were operated in Greece, that of Mont Parnès, that of Corfu and that of Rhodes. The price of the admission ticket was set by a State body, Ellinikos Organismos Tourismou (EOT, Greek Tourism Office). That price, which was set at 2000 Greek drachmas (GRD) (approximately EUR6) for the casino of Mont Parnès and GRD1500 (approximately EUR4.50) for the casinos of Corfu and Rhodes, was increased to GRD2000 for the casino of Corfu in 1997. Nomos No2160/1993 (Law No2160/1993) (FEK A’ 118/19.7.1993) provided that those three casinos would continue to operate as EOT clubs until the competent authority granted them an operating licence.
2Nomos No2206/1994 (Law No2206/1994) (FEK A’ 62/20.4.1994) provided for the grant of a specified number of operating licences. Article2(10) of that law provided that the price of tickets for admission to the casinos in certain areas would be set by ministerial decision and that that same decision would determine the percentage of that price that would be paid to the State.
3In that regard, under paragraph1 of Apofasi tou Ypourgou Oikonomikon No1128269/1226/0015/POL.1292 (Decision No1128269/1226/0015/POL.1292 of the Ministry of Finance) of 16November 1995 (FEK B’ 982/29.11.1995) (‘the 1995 Ministerial Decision’), casino operators were obliged, as from 15December 1995, to issue an admission ticket to each person according to the provisions of the same decision. Under paragraph5 of that decision, the price of an admission ticket was set at GRD5000, converted to the sum of EUR15 pursuant to Article31(13) of Nomos No2873/2000 (Law No2873/2000) (FEK A’ 285/28.12.2000). Under paragraph6 of the 1995 Ministerial Decision, if persons on whom no price was imposed for reasons of promotion or social obligation were admitted to the gaming area, a ticket from a special batch was to be issued. The 1995 Ministerial Decision also provided, in paragraph7 thereof, that casino operators were to withhold 20% of the value of the admission ticket as ‘fees for issuing the ticket and covering expenses’, including the appropriate value added tax (VAT), while the remainder constituted ‘public fees’. Under the second subparagraph of paragraph7 of the said decision, where tickets were issued free of charge, public fees were to be paid by reference to the price of an admission ticket set pursuant to paragraph5 of the same decision.
4After 1995, the casinos of Mont Parnès, Corfu and Rhodes continued to operate as EOT clubs. EOT was subsequently replaced as operator of the casinos of Corfu and Mont Parnès by Elliniki Etaireia Touristikis Anaptyxis (ETA), a Greek tourism development company wholly owned by the Greek State. The casino of Corfu continued to charge an admission fee of EUR6 until its privatisation on 30August 2010 and, pursuant to the 1995 Ministerial Decision, continued to pay 80% of the relevant amounts to the State. Similarly, the casino of Rhodes was issued with an operating licence in 1996 and charged an admission fee of GRD5000 after its privatisation in April 1999. From the end of 2000 to 2003, the casino of Mont Parnès charged an admission fee of GRD1500, becoming EUR6 from 1January 2002, and, from the end of 2000, 80% of that fee was paid to the Greek State.
5Of the six new casinos established in Greece after 1995 pursuant to Law No2206/1994, namely the casinos of Chalkidiki, Loutraki, Thessaloniki, Rio (Achaea), Xanthi (Thrace) and Syros, all charged an admission fee of EUR15, except for the casino of Thessaloniki.
6The casino of Thessaloniki (operated by Regency Entertainment Psychagogiki kai Touristiki AE) charged an admission fee of EUR6 pursuant to Nomothetiko diatagma 2687/1953 peri ependyseos kai prostasias kefalaion exoterikou (Legislative Decree No2687/1953, concerning the investment and protection of foreign capital) (FEK A’ 317/10.11.1953), which provides that undertakings established with foreign capital are to receive treatment at least as favourable as that given to other similar domestic undertakings. The casino operator’s request that the price of a ticket for admission to the casino of Thessaloniki be set at the same level as that of the casino of Mont Parnès, that is to say at EUR6, was granted in accordance with Gnomodotisi 631/1997 tou Nomikou Symvouliou tou Kratous (Opinion No631/1997 of the Greek Legal Council of State) of 16October 1997. Paragraph7 of the 1995 Ministerial Decision, concerning public fees on admission tickets, was applied to the casino of Thessaloniki.
7On 8July 2009, the applicant, Koinopraxia Touristiki Loutrakiou AE OTA– Loutraki AE– Klab Otel Loutraki Kazino Touristikes kai Xenodocheiakes Epicheiriseis AE, a consortium operating the casino of Loutraki, submitted a complaint to the European Commission concerning the Greek legislation on the system of casino admission fees, arguing that such a system was tantamount to providing State aid to three economic operators, namely the casinos of Mont Parnès, Corfu and Thessaloniki (‘the 2009 complaint’).
8Following exchanges of observations, the Commission initiated the formal investigation procedure by decision of 6July 2010 (‘the 2010 opening decision’).
9The Commission received comments from the Greek authorities and interested parties.
10On 24May 2011, the Commission adopted Decision 2011/716/EU on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L285, p.25; ‘the 2011 final decision’). Articles1 and 2 thereof were worded as follows:
‘Article1
The State aid implemented by the Hellenic Republic and consisting of the fiscal discrimination put into place in favour of certain casinos through the implementation of several simultaneous, partially mandatory, legal provisions concerning
–the fixing of a uniform 80% levy on the price of admission tickets, and
–the setting of two unequal regulated prices of admission tickets at EUR6 and EUR15 respectively for publicly and privately owned casinos,
has been unlawfully put into effect by the Hellenic Republic in breach of Article108(3) [TFEU] and is incompatible with the internal market since it has placed the following beneficiary casinos: Regency Casino Mont Parnès, Regency Casino Thessaloniki and Corfu Casino (on the understanding that Rhodes Casino has stopped being a beneficiary in April 1999) at an undue competitive advantage.
Article2
1.The Hellenic Republic shall recover from the beneficiary casinos the incompatible aid referred to in Article1 which was granted since 21October 1999.
…’
11By application lodged at the Court Registry on 3August 2011, the Hellenic Republic brought an action for annulment against the 2011 final decision, which was registered as Case T‑425/11. Actions for annulment were also brought, respectively, by Etaireia Akiniton Dimosiou AE (ETAD), which was registered as Case T‑419/11, by Regency Entertainment Psychagogiki kai Touristiki, which was registered as Case T‑635/11, by Elliniko Kazino Parnithas AE, which was registered as Case T‑14/12, and by Athens Resort Casino AE Symmetochon, a shareholder in the casinos of Thessaloniki and Mont Parnès, which was registered as Case T‑36/12.
12By judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), the Court annulled the 2011 final decision, after having concluded that the Commission had not established the existence of State aid within the meaning of Article107(1) TFEU.
13On 22November 2014, the Commission brought an appeal against the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768). By order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727), the Court of Justice dismissed the Commission’s appeal and upheld that judgment. Consequently, by the orders of 19April 2016, ETAD v Commission (T‑419/11, not published, EU:T:2016:277), of 19April 2016, Regency Entertainment Psychagogiki kai Touristiki v Commission (T‑635/11, not published, EU:T:2016:299), of 19April 2016, Elliniko Kazino Parnithas v Commission (T‑14/12, not published, EU:T:2016:300), and of 19April 2016, Athens Resort Casino v Commission (T‑36/12, not published, EU:T:2016:301), the General Court found that the applications for annulment of the 2011 final decision lodged, respectively, by ETAD, by Regency Entertainment Psychagogiki kai Touristiki, by Elliniko Kazino Parnithas and by Athens Resort Casino had become devoid of purpose and that there was no longer any need to adjudicate on them.
14On 14April 2017, the applicant lodged a complaint with the Commission (‘the 2017 complaint’), in which it requested it, in essence, to adopt a decision finding that the implementation by the Hellenic Republic of State aid consisting in differentiated admission fees of EUR6 and EUR15, applied by public and private casinos, respectively, infringed Article108(3), TFEU and was incompatible with the internal market, in that it placed its beneficiaries, namely the casinos of Mont Parnès, Thessaloniki and Corfu, in a situation of unlawful competitive advantage, consisting in an attractiveness advantage linked to the lower price of admission tickets and to the effects of that measure on their turnover, as well owing to the particularly developed practice of issuing tickets free of charge.
15On 17November 2017, the Commission notified the Hellenic Republic of the 2017 complaint and invited it to submit its observations. On 26January 2018, the Hellenic Republic replied to the Commission.
16On 9August 2018, the Commission adopted Decision (EU) 2018/1575 on the measures to certain Greek casinos SA.28973– C 16/2010 (ex NN 22/2010, ex CP 318/2009) implemented by Greece (OJ 2018 L262, p.61) (‘the contested decision’). It concluded that the system of levies on admissions to casinos in Greece that existed until November 2012 did not constitute aid within the meaning of Article107(1) TFEU.
17In essence, the Commission relied on the order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727) and on the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) to assert, in recitals63 to 68 of the contested decision, that the measure at issue did not confer an advantage within the meaning of Article107(1) TFEU. It emphasised that that conclusion also applied to the practice of granting tickets free of charge. In recitals69 and 70 of the contested decision, the Commission took the view that, given that the system of admission fees to casinos in Greece did not itself confer an advantage on public casinos, any increased attractiveness or additional revenue from additional customers attracted by a lower admission fee could not be said by the applicant to give rise to an advantage. According to the Commission, in any event, even if such an advantage could be shown to exist, it was not granted through State resources within the meaning of Article107(1) TFEU.