Substance
55The applicant relies on two pleas in law in support of its action.
56As its principal claim, the applicant argues that the part of the contested decision in which the Commission examined whether the alleged State aid measure confers an ‘attractiveness advantage’, as defined in the 2017 complaint, must be regarded as a decision not to raise objections, adopted following the preliminary examination stage. Should this line of argument be accepted, the applicant claims that the Commission ought to have initiated the formal investigation procedure because there were serious doubts as to the existence of an attractiveness advantage financed through State resources.
57In the alternative, should the Court find that the part in question of the contested decision was adopted following the formal investigation procedure, the applicant argues that the Commission nevertheless had an obligation to reopen that procedure by virtue of the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768). In any event, the Commission was, as a matter of principle, obliged to give the parties concerned, including the applicant, notice to submit their comments before the adoption of the contested decision.
First plea in law, concerning the failure to initiate the formal investigation procedure
58In the first place, the applicant submits that recital69 of the contested decision must be characterised as constituting a decision not to raise objections following the preliminary examination stage. According to the applicant, in order to adopt a decision on the basis of a formal investigation procedure, the Commission must not only give notice to the parties concerned to submit their comments, but also examine in depth the alleged State aid measure, which it did not do in the present case. On the contrary, it adopted the contested decision solely on the basis of the formal procedure that it had initiated in connection with the 2011 final decision, which, however, had consisted exclusively in analysing whether the alleged State aid measure constituted an advantage for the beneficiary undertakings by virtue of the fact that their tax burdens were lower for each customer admitted. According to the applicant, the assessment that led to the adoption of the 2011 final decision was therefore conducted without any economic analysis of the attractiveness of the lower-priced admission ticket, as was also acknowledged in the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768).
59The applicant asserts that, in that context, the Commission could not legally adopt recital69 of the contested decision without first initiating a separate formal investigation procedure given the serious doubts as to the compatibility of the aid measure.
60In the second place, should the line of argument set out in paragraphs58 and 59 above be upheld, the applicant submits that there were serious difficulties in the case at hand. It submits that the notion of serious difficulties is an objective one. The Commission erred in law in holding that it was impossible to establish legally an attractiveness advantage financed through State resources and due to the length and incomplete nature of the examination of the alleged state aid measure.
61First, the applicant asserts, with regard to the existence of an attractiveness advantage, that a significant difference in price between admission tickets for public casinos and those for private casinos could lead to such an advantage. This is recognised by Legislative Decree No2687/1953, concerning the investment and protection of foreign capital, since it provides that undertakings established with foreign capital must receive treatment at least as favourable as that given to other, similar domestic undertakings. Second, according to the applicant, there were serious difficulties in determining whether public resources had been used to finance the attractiveness advantage, which should have led to the initiation of the formal investigation procedure, irrespective of whether the Commission’s assessments were erroneous in law or in fact. The applicant considers that that measure had a direct negative impact on the State budget. Third, the applicant submits that the duration of the examination carried out by the Commission following the order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727) demonstrates the existence of serious difficulties. Fourth, the fact that the Commission did not carry out any economic analysis means that the examination is incomplete, which also constitutes evidence of the existence of serious difficulties.
62The applicant maintains that the contested decision must be annulled, since the Commission did not initiate a formal investigation procedure to give the parties concerned the possibility to submit comments and, more specifically, to provide it with an economic analysis substantiating the attractiveness advantage.
63The Commission and the interveners refute the applicant’s claims.
64In that regard, first, it should be noted that, as has already been stated in paragraph35 above, the 2010 opening decision covered all aspects of the aid measures at issue, including the attractiveness advantage and the free tickets.
65Second, as regards the 2011 final decision, on the one hand, as has been held in paragraph48 above, it cannot be deemed to have definitively answered the question of the attractiveness advantage and the questions relating to the free tickets. On the other hand, that decision was annulled by the Court in the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), upheld by the order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727).
66In those circumstances, it should be recalled that, pursuant to Article266 TFEU, the institution whose measure has been declared void is required to take the necessary measures to comply with the annulling judgment.
67In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (see judgment of 6July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph64 and the case-law cited).
68The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (see judgment of 6July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph65 and the case-law cited).
69According to settled case-law, the annulment of an EU measure does not necessarily affect the preparatory acts which preceded it. The annulment of a measure concluding an administrative proceeding which comprises several stages does not necessarily entail the annulment of the entire procedure regardless of the grounds, procedural or substantive, of the annulling judgment (see judgment of 6July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph66 and the case-law cited).
70In the case at hand, it should be noted that the Commission was in no way required to initiate a new formal investigation procedure after the annulment of the 2011 final decision, given that a formal investigation procedure relating to all the questions at issue had already been initiated in 2010 and that that procedure was not covered by the grounds of the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768).
71Moreover, there is nothing in the 2017 complaint to suggest that the attractiveness advantage referred to is different from that mentioned in the 2009 complaint, which was the subject of the 2010 opening decision, and in relation to which the applicant had submitted its comments even before the 2011 final decision. The same considerations apply to the free tickets (see paragraph36 above). Indeed, as is apparent from paragraphs24 to 28 and 31 of the 2017 complaint, the applicant requested the Commission to establish, following an economic analysis, the effects of the attractiveness advantage and the free tickets, which was already covered, in essence, by the 2009 complaint. In paragraphs24 and 31 of that complaint, the applicant refers, moreover, to the factual evidence submitted by the Hellenic Republic during the procedure which gave rise to the 2011 final decision and, in paragraphs26 and 27 thereof, it makes reference to recitals81 to 102 of the 2011 final decision, as regards inter alia the general factual context and certain elements constituting State aid.
72In those circumstances, the 2017 complaint is clearly within the scope of the formal investigation procedure initiated in 2010, such that the contested decision constitutes a new decision bringing that formal procedure to an end. Consequently, contrary to what is argued by the applicant, the decision cannot be regarded in part as a decision not to raise objections adopted at the end of the preliminary examination stage. The applicant’s first plea in law must therefore be rejected as unfounded.
Second plea in law, concerning the obligation to reopen the formal investigation procedure
73The applicant submits, in the alternative, that, should the Court find that the contested decision was adopted following a formal investigation procedure, it must be held that the Commission was under an obligation to reopen that procedure following the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768). The failure to comply with that obligation amounts to a breach of its procedural rights, which should lead to the annulment of the contested decision.
74In essence, the applicant submits, first, that, in the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768), the Court did not examine the existence of an attractiveness advantage. Second, it did not exclude the possibility of proving that such an advantage could be granted through State resources provided that it was substantiated by means of an economic analysis. Third, the Commission’s formal investigation, which was supposed to enable it to be fully informed of the facts of the case, did not, according to the applicant, contain any economic analysis relating to the existence of an attractiveness advantage. Fourth, the 2017 complaint concerned exclusively the issue of the attractiveness advantage. Fifth, the Commission also breached the essential procedural requirement consisting in giving notice to the parties concerned to submit their comments and did not gather information enabling it to carry out an economic analysis.
75According to the applicant, in view of all of those considerations as well as the serious difficulties in examining the existence of an attractiveness advantage and the use of State resources, the Commission was under an obligation to reopen the formal investigation procedure. Having failed to do so, it did not base its decision on an analysis of the specific facts of the case, but dismissed the existence of State aid on the basis of a legal analysis. In any event, it should have given notice to the parties concerned to submit their comments.
76In the reply, the applicant maintains, with regard to the obligation to reopen the formal investigation procedure, that it should be assumed that the Commission regarded its 2017 complaint as a formal complaint. The applicant adds, first, that the fact that, in the 2010 opening decision, the Commission had raised concerns regarding the existence of an attractiveness advantage and had referred to its arguments advanced in the 2009 complaint was irrelevant, since that decision preceded the initiation of the formal investigation procedure. Second, the Commission cannot escape its obligation to reopen a formal investigation procedure on the sole ground that it had taken into account a complaint when it adopted a decision. According to the applicant, the purpose of the observations submitted in the context of the formal investigation procedure is different from that of a complaint. Moreover, in the case at hand, at no stage did the Commission take account of the claims made in the 2017 complaint or examine the attractiveness advantage. According to the applicant, an effective examination of them was required. Third, the 2017 complaint was lodged due to the Commission’s inaction following the order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727). According to the applicant, if the Commission was of the view that the 2017 complaint did not observe the formal requirements, that institution should have called upon it to submit comments in that regard within a prescribed period. In any event, the correct characterisation of the 2017 complaint has no bearing on the case, since the Commission accepted, by letter of 12June 2017, the 2017 complaint. It thus initiated a new preliminary investigation and annulled the 2010 opening decision.
77Finally, the applicant maintains that, while its first plea in law concerns the conditions that must be fulfilled for a formal investigation procedure to be deemed to have been opened, its second plea in law concerns, on the one hand, the obligation to reopen such procedure following the annulment of the 2011 final decision and, on the other, the obligation of the Commission to allow the parties to submit their comments. The failure, further to the concerns mentioned in the 2010 opening decision relating to the attractiveness advantage, to conduct an analysis on that issue constitutes a change of the applicable legal framework that prevented the parties from effectively participating in the procedure.
78The Commission and the interveners refute the applicant’s claims.
79It should be noted, as a preliminary point, that no provision of Council Regulation (EU) 2015/1589 of 13July 2015 laying down detailed rules for the application of Article108 [TFEU] (OJ 2015 L248, p.9) specifies the cases in which the Commission is obliged to reopen the formal investigation procedure.
80According to the case-law, in order to comply with its obligations under Article266 TFEU and conduct the new analysis required by the Court in a judgment annulling a measure, the Commission may, depending on the circumstances of the case, be compelled to reopen the formal investigation procedure, first, in order to gather the information necessary for that new analysis and, second, to give interested third parties the opportunity to put forward their arguments on that new analysis (judgment of 6July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph70).
81Thus, the assessment of the need to reopen the formal investigation procedure can be based only on a joint examination of the grounds of the annulment judgment and of the circumstances of the case (see, to that effect, judgment of 6July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph71).
82In that regard, it must be recalled that it is in no way apparent from the case-law that annulment on the grounds of errors of law or manifest errors of assessment, and not on the ground of a failure to state reasons, necessarily entails reopening the formal investigation procedure. The case-law does not make the possibility of not resuming the entire procedure preceding the adoption of a measure adopted to replace another conditional on the latter having been annulled for procedural defects (see judgment of 6July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph69 and the case-law cited).
83Moreover, it is apparent from settled case-law that the Commission is not under an obligation to conduct an exchange of views and arguments with a complainant in a State aid case (see, to that effect, judgments of 2April 1998, Commission v Sytraval and Brink’s France, C‑367/95P, EU:C:1998:154, paragraph58, and of 12December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, T‑95/03, EU:T:2006:385, paragraph140). Furthermore, the Commission is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (judgment of 2April 1998, Commission v Sytraval and Brink’s France, C‑367/95P, EU:C:1998:154, paragraphs62 to 64).
84In the case at hand, the Commission was right to consider that it was not obliged to reopen the formal investigation procedure.
85First, it was under no obligation to gather on its own initiative the information necessary for a new analysis (see, to that effect and by analogy, judgment of 29April 2021, Achemos Grupė and Achema v Commission, C‑847/19P, not published, EU:C:2021:343, paragraph50), nor that of allowing interested third parties to put forward their arguments on new analyses. It was entitled inter alia to base its analysis on the information already available to it at the time of the adoption of the 2011 final decision and following its annulment, the applicant having availed itself of the opportunity to provide information, both in response to the 2010 opening decision and after the annulment of the 2011 final decision, which the Commission did not consider sufficiently probative to reopen the procedure. That is particularly so since nothing in the 2017 complaint constitutes new concrete evidence requiring a new examination. It is apparent inter alia from the file that the applicant had requested the Commission, in the context of the 2017 complaint, to take into account all the information provided by the Greek authorities during the procedure leading to the adoption of the 2011 final decision. Moreover, in that complaint, the applicant reiterated, in essence, the claims made previously, in particular without putting forward any claims relating to economic analyses. It should also be borne in mind that, in recitals56 to 58 and 69 of the contested decision, the Commission took the applicant’s claims into consideration.
86Second, the reopening of the formal investigation procedure was also not required within the meaning of the order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727) or the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) since, contrary to the applicant’s interpretation of them, neither that order nor that judgment requires the Commission to carry out an economic assessment of the attractiveness advantage or indeed of the effects of the free tickets. It followed only that, had the Commission envisaged determining that those elements constituted State aid, it would then have been required to carry out such additional analyses or demonstrations (judgment of 11September 2014, Greece v Commission, T‑425/11, EU:T:2014:768, paragraph66).
87Those findings are not called into question by the applicant’s arguments.
88First, with regard to the claims of the applicant according to which the Commission was not adequately informed in this case (see paragraphs74 and 75 above), it must be held that the Commission was entitled to consider that it had at its disposal the information necessary to take a decision, particularly since the applicant had had the opportunity to submit all the information it considered necessary following the 2010 opening decision and since the Commission considered that, in any event, the attractiveness advantage had no connection with the State budget.
89In those circumstances, in the absence of sufficiently conclusive evidence from the applicant concretely demonstrating a need to carry out additional investigations, it cannot be considered that the Commission was obliged on its own initiative to gather information other than that already in its possession in the context of the formal investigation procedure initiated in 2010. Moreover, it must be held that it is not apparent from the 2017 complaint that the specific matters put forward by the applicant had not been the subject of that formal procedure. Nor did the applicant specify at the hearing, in response to a request from the Court to that effect, which elements in its view required an additional specific analysis by the Commission. It cannot be considered sufficient, in that regard, to present general criticisms without numerical assessments in support of them or even general references to the principle of sound administration. If no prima facie evidence was presented, the Commission could not be obliged to act on its own initiative by carrying out additional analyses, especially since it considered, in any event, that there was no link with State resources (see paragraph85 above).
90Accordingly, it is also necessary to reject the applicant’s argument that, had it had the opportunity to submit additional comments following the annulment of the 2011 final decision, the contested decision might have been different. In the 2017 complaint, it did not submit any evidence capable of corroborating such a claim. It should be added that, according to settled case-law, the Commission’s main interlocutors in State aid cases are the States and not the complainant undertakings (see, to that effect and by analogy, judgment of 11March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18P, EU:C:2020:192, paragraphs70 to 75 and the case-law cited).
91Furthermore, it is also apparent from the contested decision and from the Commission’s reply to the measures of organisation of procedure that that institution received observations from the Hellenic Republic on the 2017 complaint, including the attractiveness advantage and the free tickets (see paragraph15 above). Thus, both the applicant, through its 2017 complaint, and the Greek authorities, through their observations on that complaint, in fact submitted comments to the Commission following the annulment of the 2011 final decision, those elements being added to those already in its possession in the context of the formal investigation procedure initiated in 2010.
92Second, in so far the applicant had been put in a position to respond to the initiation of the 2010 formal investigation procedure, the Commission cannot be considered to have failed to fulfil its procedural obligations in not reopening the formal procedure following the 2017 complaint, irrespective of the categorisation of the 2017 complaint as a ‘new complaint’ and irrespective of whether the applicant met its obligation to use the complaint form or whether the Commission requested it to carry out an additional formalisation.
93Irrespective of how it was named by the applicant and interpreted by the Commission, the 2017 complaint was clearly part of the formal procedure initiated in 2010 and did not provide new elements that would have required an additional investigation on the part of the Commission. Moreover, in the 2017 complaint, the applicant expressly referred to the 2011 final decision as regards the factual situation and merely requested the Commission to adopt a new decision following the annulment of the 2011 final decision, and not to initiate a new formal investigation procedure. Nor did the applicant allege the existence of a new or different aid measure in its 2017 complaint. Rather, it referred to the existing file and to the formal investigation procedure that had led to the adoption of the 2011 final decision.
94Third, contrary to what the applicant submits, there was no change in this case of the applicable legal framework after the 2010 opening decision. Thus, the arguments of the applicant based on the obligation to allow it to submit its comments on what it claims was a new legal framework are also unfounded.
95Fourth, the applicant also cannot reasonably argue that, had it known from the outset that the Commission intended to adopt the 2011 final decision without examining the question of attractiveness, the content of the observations it submitted in response to the 2010 opening decision would have been different and that the Commission should therefore have reopened the formal procedure.
96First of all, on the one hand, it is common ground that the applicant had the opportunity to submit its observations following the 2010 opening decision. On the other hand, the applicant has not specified the legal basis for its argument that it had to be given a further opportunity to submit observations, whereas the Commission, in the 2011 final decision, had not taken a definitive position on the attractiveness advantage or the free tickets, but had adopted the said decision on the basis of the accounting effects of the alleged State aid.
97Next, in the contested decision, the Commission was not obliged to revisit the entirety of the applicant’s reasoning set out in the 2009 complaint, despite the fact that did not regard the elements disputed by the applicant as constituting State aid and that, in the contested decision, it indicated the bases underpinning its reasoning.
98Last, the applicant cannot rely on paragraph34 of the judgment of 12November 1998, Spain v Commission (C‑415/96, EU:C:1998:533). In the present case, it is not apparent from the order of 22October 2015, Commission v Greece (C‑530/14P, not published, EU:C:2015:727) or from the judgment of 11September 2014, Greece v Commission (T‑425/11, EU:T:2014:768) that the 2011 final decision was annulled due to the incomplete nature of the Commission’s analysis.
99In those circumstances, the Commission was not obliged to give the applicant or, as the case may be, other interested parties notice to submit their comments, or to reopen the formal investigation procedure in order to assess the differentiated admission fee system in view of the increased attractiveness. In the light of the case-law cited in paragraph83 above, that conclusion is not affected by the applicant’s claim that, during the administrative procedure, the Commission did not provide it with the observations submitted by the Hellenic Republic on the 2017 complaint.
100Furthermore, since the Commission was not obliged to open a new formal investigation procedure after the annulment of the 2011 final decision (see paragraph70 above), the 2010 opening decision not being affected by the annulment of the 2011 final decision, all the applicant’s claims regarding the existence of serious doubts are ineffective. The question of the presence or absence of serious doubts is a relevant factor only when it is necessary to decide whether to initiate a formal investigation procedure by the Commission.
101Accordingly, the applicant’s second plea in law must also be rejected and, consequently, the action must be dismissed in its entirety.