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Dimosia Epicheirisi Ilektrismou AE (DEI) v European Commission.

Country/Territory
European Union
Type of court
International court
Date
Sep 20, 2012
Source
UNEP, InforMEA
Court name
European Court of Justice
Judge
Soldevila Fragoso, S.
Kanninen (Rapporteur), H.
Wahl, N.
Reference number
T‑169/08
Language
English
Subject
Mineral resources
Keyword
Mining Business/industry/corporations
Abstract
Greek lignite reserves amount to approximately 4 million tonnes of which about half can be exploited by DEI, the Greek Public Power Company. No such rights have been assigned for the remaining 50% of the lignite reserves, and DEI operates all power plants in Greece that use lignite. The Commission found the exclusive rights for lignite contrary to Article 106(1) in connection with 102 TFEU. The prohibitions laid down by Article [106(1) TFEU] are addressed to Member States, whereas Article [102 TFEU] is addressed to undertakings, prohibiting them from abusing a dominant position. In the case of the combined application of those two provisions, infringement of Article [106(1) TFEU] by a Member State cannot be established unless the State measure is contrary to Article [102 TFEU]. The question therefore arises as to the extent to which an abuse, even if only potential, of the dominant position by an undertaking must be identified, that abuse having a link with the State measure According to the Commission, the granting and maintenance of quasi-monopolistic rights to lignite exploitation to DEI has created an inequality of opportunity between electricity producers intending to supply the Greek market. This led the Commission to find that the Greek authorities […] ‘by granting and maintaining quasi-monopolistic rights in favour of the public undertaking which is the applicant over the exploitation of lignite, [have] guaranteed the applicant privileged access to the most attractive combustible which existed in Greece for the purposes of producing electricity. [Greece] thus gave that undertaking the possibility of maintaining a dominant position on the wholesale electricity market in a situation of quasi-monopoly, excluding or hindering any new entrants. Consequently, it allowed the applicant to protect its quasi-monopolistic position on the market despite the liberalisation of the wholesale electricity market and thus maintained and reinforced its dominant position on that market’. The General Court of the European Union annulled the two European Commission decisions of the 'Greek lignite' case following applications for annulment filed by the Public Power Corporation.The main reason for annulment of these decisions from the General Court of the European Union was that the European Commission did not prove that PPC abuses its dominant position in the market. The Court ruled that the Commission could not "base its argument solely on the question whether the inequality of opportunities between economic operators, thereby distorting competition, is the result of a "State measure". Instead, the Court agreed with DEI and Greece that for such infringement to be established, the Commission must also establish a real or potential abuse of dominance resulting from such measures. By reference to its case law, the Court emphasised that the abuse of a dominant position by an undertaking enjoying an exclusive or special right may either result from the possibility of exercising that right in an abusive way or be a direct consequence of that right, e.g., if the mere exercise of the right gives rise to a situation where the undertaking is manifestly unable to meet demand or is induced to charge disproportionate prices. By contrast, the mere fact that the undertaking in question finds itself in an advantageous position in comparison with its competitors, by reason of a State measure, is in itself insufficient to constitute an abuse of a dominant position. As for the various precedents cited by the Commission, the Court found that the Commission had relied on formulations from other judgments without, however, taking into account the context of those judgments.
Full text
Dimosia Epicheirisi Ilektrismou AE (DEI) v. Hellenic Republis.pdf
Website
curia.europa.eu