HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 258/74
EN
Official Journal of the European Union
4.10.2011
DECISIONS
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,
(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
Having regard to the Treaty on the Functioning of the European
brought forward. The Greek authorities replied on
Union, and in particular the first subparagraph of Article 108(2)
4 March 2003.
thereof,
Having regard to the Agreement on the European Economic
(5) On
27
January
2003
Commission
staff
met
the
legal
Area, and in particular Article 62(1)(a) thereof,
representative of the complainant.
Having called on interested parties to submit their comments
(6)
On 12 February 2003 and 22 August 2003 the legal
pursuant to the provisions cited above and having regard to
representative of the alleged beneficiary submitted
their comments ( 1 ),
supporting documents to the Commission services.
Whereas:
(7)
By letters of 31 March 2003 and 16 May 2003 the
complainant submitted supplementary information to
DG Competition.
1. PROCEDURE
(1) By
letter
of
23
June
2002,
Egnatia
AE,
which
following
a
merger has since been taken over by Athinaiki Techniki
(8) On
10
April
2003
Commission
staff
met
the
represen
and which is a member of the Casino Attikis consortium
tative of the alleged beneficiary.
(‘CA’ or ‘the complainant’), submitted a complaint to the
European Commission about an alleged breach of EU
internal market rules, concerning an allegedly non-trans
(9) During the period between 15 July 2003 and
parent and discriminatory tender procedure followed by
16 September 2003 the Commission had several
the Greek authorities in the sale of 49 % of the capital of
exchanges with the complainant regarding the separate
Elliniko Kazino Parnithas AE (‘Mont Parnès casino’) to the
assessment of the State aid issues, and it drew the
successful bidder, the Hyatt Regency consortium (‘HR’ or
attention of the complainant to its decision-making
‘the alleged beneficiary’) ( 2 ).
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
(2) By
letter
of
3
October
2002
the
European
Commission’s
Internal Market Directorate-General (‘DG Internal
carried out transparently and without discrimination.
Market’) transferred a copy of the file to the Competition
Consequently, the Commission informed the complai
Directorate-General (‘DG Competition’) for a parallel
nant that it would not take a position until DG
analysis of the case under EU State aid rules.
Internal Market had completed its examination of the

procedure for the award of the public contract.
(3) By
e-mail
of
9
December
2002
the
legal
representative
of
the complainant provided the relevant Commission
(10) By
letters
of
22
January
2004
and
4
August
2004
DG
departments with additional explanations on the case.
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
( 1 ) OJ C 233, 28.8.2010, p. 11.
( 2 ) The successful bidder in the tender was the consortium Hyatt
informed the complainant that it had closed the State
Regency (70 %) — Elliniki Technodomiki (30 %).
aid complaint pursuant to Article 20(2) of Council

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EN
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Journal
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European
Union L
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Regulation (EC) No 659/1999 of 22 March 1999 laying
complainant supplied further information to the
down detailed rules for the application of Article 93 of
Commission in several exchanges.
the EC Treaty ( 3 ).
(19) By letter dated 21 October 2009 the Commission
requested additional information from Greece. By letter
(11) On
18 February 2005 the complainant brought an
of 13 November 2009 Greece asked for more time to
action for annulment of the Commission’s decision to
respond, which was granted by the Commission by e-
close the case before the Court of First Instance (now
mail of 18 November 2009. On 11 and 14 January
the General Court).
2010 Greece replied to the Commission.
(20) By
judgment of 6 May 2010 the Court of Justice
(12) By order of 26 September 2006, the Court of First
Instance dismissed the action as inadmissible since it
responded to a request for a preliminary ruling under
considered that the letter did not constitute an act
Article 234 EC (now Article 267 TFEU) from the
open to challenge under Article 230 of the Treaty estab
Simvoulio tis Epikreatias (‘Council of State’), in particular
lishing the European Community (EC Treaty) (now
concerning the application of the EU public procurement
Article 263 of the Treaty on the Functioning of the
rules to the tendering procedure in question. The Court
European Union (TFEU)) (
of Justice concluded, inter alia, that, taken as a whole, a

4 ).
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
(13) On
18
December
2006
the
complainant
brought
an
noted that this conclusion did not preclude the fact that
appeal against the order of the Court of First Instance
such a contract must observe the basic rules and general
before the Court of Justice.
principles of the Treaty, in particular those on freedom of
establishment and free movement of capital.
(14) By
judgment
of
17
July
2008
( 5 ), the Court of Justice set
(21) By
letter
of
6
July
2010 the
Commission
informed
aside the order; it found that the contested act did
Greece that it had decided to open the procedure laid
constitute an act open to challenge that was not in
down in Article 108(2) TFEU in respect of the measure
conformity with the Commission’s obligations under
(the ‘opening decision’).
the Procedural Regulation, and referred the case back
to the Court of First Instance.
(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
(15) By letter of 26 September 2008 DG Competition
comments on the measure.
withdrew the closure letter of 2 June 2004 and
reopened the case.
(23) Following the opening of the procedure, the Commission
received comments from two interested parties, namely
the representatives of the alleged beneficiary (Athens
(16) By order of 29 June 2009 the Court of First Instance
Resort Casino Holdings (
found that since the letter had been withdrawn there was

9 ), on behalf of HR) ( 10 ) and
from representatives of the complainant (Club Hotel
no longer any need to issue a decision ( 6 ). This order of
Casino Loutraki, on behalf of CA) (
the Court of First Instance was appealed by the

11 ). By letter of
6 August 2010, Greece submitted its comments. The
complainant on 7 September 2009, on the grounds
comments of both interested parties were sent by letter
that the Court should have deemed the withdrawal of
of 29 October 2010 to Greece, which reacted by letter of
the letter unlawful and should have annulled it.
25 November 2010.
( 7 ) Joined Cases C-145/08 and C-149/08 Club Hotel Loutraki and Others
(17) By e-mail of 11 September 2009 the complainant
(OJ C 179, 3.7.2010, p. 2). The Court observed that the contract
had as its main object the acquisition of 49 % of the capital of
supplied further information to the Commission.
Mont Parnès casino and as ancillary object, indivisibly linked with
that main object, the supply of services and the performance of
works.
( 8 ) See footnote 1.
(18) On
14
October
2009
Commission
staff
met
represen
( 9 ) The company constituted under private law Athens Resort Casino
tatives of the complainant. After this meeting, the
AE which, as licence-holder, currently operates Mont Parnès casino,
was set up in 2003 by the eventual successful bidder in the tender
(Hyatt Regency — Elliniki Technodomiki). 70 % of Athens Resort
( 3 ) OJ L 83, 27.3.1999, p. 1.
Casino is owned by Regency Entertainment Psychagogiki kai Tour
( 4 ) Case T-94/05 Athinaiki Techniki AE v Commission [2006] ECR II-73.
istiki AE (formerly Hyatt Regency Xenodocheiaki kai Touristiki
( 5 ) Case C-521/06 Athinaiki Techniki AE v Commission [2008] ECR
Thessaloniki AE) and the remaining 30 % by Ellaktor AE
I-5829.
(formerly Elliniki Technodomiki AE).
( 6 ) Case T-94/05 Athinaiki Techniki AE v Commission (OJ C 233,
( 10 ) By letter of 4 August 2010.
26.9.2009, p. 14).
( 11 ) By e-mail from their legal representative of 29 September 2010.

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EN
Official Journal of the European Union
4.10.2011
(24) On
16
December
2010
( 12 ), the Court of Justice ruled
80 075 000. However, the envelope of the latter
that the General Court (formerly the Court of First
contained, apart from its bid, a statement disputing the
Instance) had been wrong in determining that there
lawfulness of the participation by the CA consortium in
was no case to answer in the original challenge to the
the tendering procedure. CA objected to this statement,
Commission’s ‘administrative closure’ of the case.
claiming that the formulation of reservations rendered
HR’s financial bid inadmissible. CA’s objection was
rejected by the Objections Committee, which considered
that HR’s statement did not affect the validity of its bid.
2. DESCRIPTION OF THE MEASURE
(25) In October 2001 the Greek authorities initiated a
procedure for the award of a public contract with a
(28) In
the
second
round,
HR
submitted
in
a
sealed
envelope
view to disposing of 49 % of the capital of Mont
its bid of EUR 92 105 888, again accompanied by the
Parnès casino ( 13 ). There were two competing applicants,
same written statement. After the completion of the
namely ‘Kazino Attikis’ (Casino Attikis or CA) and the
second round, the legal representative of CA submitted
consortium named Hyatt Regency — Elliniki Tech
an envelope with the financial bid for the third round,
nodomiki (the Hyatt Regency consortium or HR), both
and also submitted a separate statement to the Board of
of which were selected to participate in the second stage
Directors of ETA on violation of the terms of the tender
of the tendering procedure ( 14 ), under the terms of the
with regard to the validity requirements of the tender.
relevant national provisions. Following proceedings
The Tender Committee rejected this submission on the
which it is alleged were invalid, the contract was
grounds that it would be admissible only if submitted in
awarded to HR. The following paragraphs 26 to 29
the form of an objection, falling within the competence
describe the events leading to this award, according to
of the Objections Committee. The legal representative of
the information available to the Commission.
CA then asked the Committee for a 5-minute extension
in order to decide upon their next actions. The extension
was granted and they removed from the Committee’s
table both the written statement and the bid envelope.
When they returned within the 5 minutes, they stated
that they did not intend to submit an objection and they
submitted their bid. Subsequently, HR submitted an
(26) According
to the applicable national provisions, the
objection and requested that the third round of bids be
winning candidate would be declared through bidding
deemed inadmissible on the grounds that CA had
(ascending price auction), the initial sale price having
submitted a bid which they had withdrawn and then
been set at EUR 80 million. The Tender Committee
re-submitted. HR’s objection was accepted by the
would unseal the envelopes submitted by the candidates,
Objections Committee and CA’s bid ( 16 ) was excluded
containing each candidate’s financial bid, and would
from the procedure.
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
(29) After excluding CA’s third-round bid, the Tender
separate rounds, until one of the bidders withdrew, in
Committee forwarded ( 17 ) to the Board of Directors of
which case the last bidder would be declared the provi
ETA a copy of the minutes of its eighth meeting, at
sional highest bidder. The minutes naming the provi
which it had named HR first provisional highest bidder
sional highest bidder would be submitted by the
(with a bid of EUR 92 105 888) and CA second provi
Tender Committee to the Board of Directors of the
sional highest bidder. The Tender Committee appears not
Hellenic Tourism Development Authority (ETA).
to have unsealed the third round bid of CA and did not
return the sealed envelope to the latter, but delivered it to
ETA to be kept in its safe ( 18 ). The Board of Directors of
ETA convened an extraordinary general meeting.
Thereafter, on 5 June 2002, the Managing Director of
ETA and the legal representative of Kantor Capital,
(27) During the first round, the two candidates submitted
economic adviser in charge of the proceedings, were
their bids at the same time, in sealed envelopes, on
authorised to ask HR to improve its bid. HR subsequently
31 May 2002, at the headquarters of ETA. CA’s bid
raised the proposed amount to EUR 110 million. On
was EUR 91 183 652, whereas the HR’s bid was EUR
12 June 2002, CA submitted to the Board of Directors
of ETA a letter containing a bid of EUR 162 million, but
it was subsequently rejected because it was made after
( 12 ) Case C-362/09 P Athinaiki Techniki AE v Commission (OJ C 55,
19.2.2011, p. 12).
( 13 ) ‘Elliniko Kazino Parnithas AE — Invitation to tender for privati
( 16 ) CA states that its bid was EUR 107 million.
sation — October 2001’ (the original invitation to tender).
( 17 ) Under cover of letter ref. 38/3.6.2002.
( 14 ) Supplementary invitation to stage 2 of the tender (April 2002).
( 18 ) According to the information provided by the Greek authorities, the
( 15 ) As was clarified after the opening decision, which referred to a
sealed envelope is still in the ETA safe, in order to protect the right
percentage of 10 %.
of CA to exhaust all national and European legal remedies.

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European
Union L
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the tender procedure had closed. Finally, the HR bid was
in the tender procedure, and thus HR’s financial bids
improved still further, rising to the sum of EUR
were quite rightly deemed lawful by the Objections
120 million ( 19 ).
Committee.
3. DECISION TO OPEN THE FORMAL INVESTIGATION
(34) The
Greek
authorities
further
argue
in
more
detail
that
(30) The Commission opened the formal investigation
the bid submitted by CA in the third round of the
because it was not able to allay its doubts as to
tendering procedure, which the complainant claims was
whether the stake of 49 % in the capital of Mont
EUR 107 million, was excluded because the envelope had
Parnès casino was sold by the Greek State to the
been removed from sight of the Tender Committee. In
highest bidder in a sale procedure that met the
these circumstances, the Committee could not be sure
requirements of openness, transparency and non-
that the bid had not been changed. In any case, the re-
discrimination. In particular, the Commission was not
submission of the bid would mean a second submission
sure whether or not during the sale procedure there
in the same round, which was against the rules.
was any preferential treatment unlawfully granted to
the buyer and consequently whether a market price
was or was not paid. The Commission considered that
the exclusion of CA from the tender, and of CA’s bid of
EUR 162 million made after the tender procedure, might
be evidence of a sale below value and therefore of the
existence of aid in the form of foregone State resources.
(35) The
Greek
authorities
explain
that
the
second-round
bid
made by HR of EUR 92 105 888, up from the initial bid
of EUR 91 183 652 made by CA in the first round, was
in line with the tender rules, since according to the terms
of the invitations to tender, each new bid had to be
increased by 1 %, not 10 % as was assumed in the
Commission’s opening decision. Therefore, the rules of
4. COMMENTS FROM GREECE
the tender were respected in this regard.
(31) By letter of 6 August 2010 Greece submitted its obser
vations. Greece contests the existence of State aid on the
grounds that the tender procedure for the sale of its stake
in the capital of Mont Parnès casino was run in
accordance with the applicable legislation, and that the
49 % stake in the casino was sold at market price.
(36) The
Greek
authorities
also
argue
that
CA’s
last
bid
of
EUR 162 million — the amount which the CA claimed
it was prepared to pay — is invalid, because it was made
after and outside the tender procedure. To accept this bid
would have meant breaching the principle of legality,
given that the purpose of a public bidding procedure is
(32) The
Greek
authorities
first
of
all
emphasise
that
the
not only to serve the financial interest of the State, but
selection of the participants in the tender and the
also to serve the broader public interest, i.e. to secure the
whole tendering procedure was entirely lawful and
highest possible price while observing the principle of
conducted in accordance with the rules on invitations
legality (i.e. the rules of law laid down in the rules on
to tender (
invitations to tender and tender dossiers and other

20 ), which are governed by the legislation in
force, and that those invitations to tender had been
applicable legislation).
accepted by both candidates in the tender without reser
vation.
(37) The
Greek
authorities
further
explain
that
they
did
not
simply cancel the tender and start a new one because to
(33) The
Greek
authorities
also
explain
that
the
statement
by
do so would have meant re-running the whole procedure
HR, contained in the envelope of HR’s financial bid in
for the fourth time in 8 years, which would have
both the first and second rounds of the bidding
damaged Greece’s international reputation, with no
procedure, did not affect the validity of its financial
certainty that a re-running of the tender procedure
bids, but concerned only the participation per se of CA
would have secured a price of EUR 162 million. In this
respect, Greece even questions the credibility of the EUR
162 million bid, since CA was aware that its acceptance
( 19 ) According to information received after the opening of the bids, see
footnote 24 below.
would only have triggered the cancellation of the
( 20 ) The initial invitation and the supplementary invitation for stage 2.
procedure and the launch of a new one.

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Official Journal of the European Union
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(38) Furthermore,
the
Greek
authorities
confirm
( 21 ) that the
the findings of the national courts, confirming the
price finally paid (EUR 120 million) was reasonable as it
correctness of the tender, the Greek authorities refer
was 25,5 % higher than the expert valuation of EUR
more particularly to the following:
95,4 million that had been made prior to the tendering
procedure by the independent appraiser and kept sealed
until the end of the procedure. They state that this
valuation — even though not necessary because of the
(a) Litigation before the civil courts:
tendering procedure — was requested to safeguard
Greece’s interests even further ( 22 ).
(42) In
its
judgement
8118/2002
( 24 ), the Athens Court of
First Instance rejected an application made by CA and
ruled that:
(39) As regards the assertions by the complainant that the
original terms of the invitations to tender were
— The Tender Committee and the Objections
improved by the subsequent Law No 3139/2003
Committee rightly held that HR’s first- and second-
confirming the privatisation, the Greek authorities
round bids were in conformity with the invitations to
explain that the notices of invitation to tender were
tender. HR’s statement attached to its bids had not
not amended either by Law 3139/2003 or in any
affected the unconditional nature of its bids,
other way. According to Greece, that Law simply
regulates various authorisations linked to the investment
and to the running of the casino, and includes measures
for the protection of workers after the privatisation. HR
— CA submitted a bid at 15.30, i.e. at the beginning of
was not relieved by that Law of the obligation to invest
the third round, as laid down by the Tender
EUR 44
million in Mont Parnès casino, and the
Committee at the end of the second round. The bid
contractual clause in the contract on the return to HR
was taken back by CA’s representative, of his own
of 70 % of the price in the event of an operating licence
will and motion, even though the chairman of the
being granted to another casino before 2012 was already
Tender Committee tried to deter him from doing so.
an explicit provision of the invitations to tender.
If the chairman of the Tender Committee had
explicitly warned CA’s representative about taking
back the bid, this would have resulted in discrimi
natory treatment in favour of CA and against HR.
(40) The
Greek
authorities
therefore
observe
that
the
sale
price represents the market value of the 49 % stake in
the capital of Mont Parnès casino.
— CA’s second bid in the third round was rightly
considered inadmissible by the Objections
Committee. Each bidder could tender only one bid
in each round. Moreover, if CA’s second bid in the
third round had been deemed admissible, this would
have resulted in a violation of the principle of trans
(41) To
reinforce
their
claim
that
no
irregularities
occurred
in
parency. CA’s representative took back CA’s first
the tender procedure, the Greek authorities point to
sealed envelope, left the venue where the tender
several rulings by national courts which analysed the
was taking place and on his return presented a
lawfulness of the tender procedure under national law.
sealed envelope, which could not be verified as
To date, the national courts have found no irregularities
being the same as the first envelope ( 25 ).
in the tender and have therefore rejected the various
applications made by CA on the subject ( 23 ). Among
( 24 ) Judgment 8118/2002 of the First Instance Court of Athens,
rejecting an application made by CA, where CA argued essentially
( 21 ) Also with reference to a financial report of August 2002 made by
that the declaration of HR as provisional highest bidder was the
Kantor (financial expert), sent by the Greek authorities after the
result of the unlawful decisions of the Tender Committee and the
opening decision.
Objections Committee, whereby HR’s first- and second-round bids
( 22 ) The Greek authorities sent a copy of that valuation to the
were deemed admissible and, on the other hand, CA’s third-round
Commission after the opening decision.
bid inadmissible.
( 23 ) The Greek authorities referred to the following national court
( 25 ) The Commission notes that another case is currently still pending
decisions: judgment 8118/2002 of the single-member First
before national civil courts, concerning an action by the members
Instance Court of Athens; judgment 3350/2002 of the multi-
of CA against ETA and HR, seeking a declaration of inapplicability
member First Instance Court of Athens; judgment 1649/2007 of
of the contract signed between ETA and HR, and also damages of
the Areios Pagos (Supreme Civil Court); judgment 8101/2009 of
approximately EUR 50 million. The case is currently on the case list
the multi-member First Instance Court of Athens; judgment
of the Athens Court of Appeals — appeal against judgement
754/2002 of the Committee for Suspensions of the Council of
8101/2009 of the Court of First Instance, heard on 7 April
State; judgment 3243/2004 of Council of State (Chamber D);
2011; the case is still pending; once delivered, this judgment may
judgment 606/2008 of Council of State (Plenary Session); order
be further contested before the Areios Pagos (Supreme Civil Court).
437/2007 of the Council of Court of Appeals Judges of Athens;
The Commission observes that, as presented, this case does not
judgment 1531/2008 of the Areios Pagos; order 800/2009 of the
appear to affect the findings of judgment 8118/2002 of the First
Council of Court of Appeals Judges of Athens; extracts of judgment
Instance Court of Athens; so far, this pending case appears to have
466/2011 of the Appeal Court of Athens (three-member chamber
discussed mainly procedural issues (e.g. administrative or civil juris
for felonies).
diction, legal standing of the applicants).

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(b) Litigation before the administrative courts
— The decisions of the Tender Committee were not
unlawful and the members of the Tender
(43) According to the Greek authorities, a case is currently
Committee did not treat the two bidders differently;
before the Council of State (Supreme Administrative
furthermore the Tender Committee was obliged,
Court) concerning another application made by CA
according to the terms of the invitations to tender,
alleging the unlawfulness of the tender procedure ( 26 ).
to adhere to the findings of the Objections
The final judgment is currently pending; however the
Committee.
Greek authorities observe that the Judge Rapporteur has
proposed that CA’s application should be dismissed as
inadmissible on grounds of jurisdiction and unfounded
on grounds of substance ( 27 ).
— ETA’s representative did not infringe the relevant
national provisions by asking the first provisional
highest bidder (HR) to increase its financial bid;
(c) Criminal litigation
ETA’s representative was not authorised to enter
into negotiations and did not have the power to
(44) Following an action filed in 2002 by CA against
cancel or call off the bidding procedure.
members of the Tender Committee, the Objections
Committee, ETA, the evaluation consultant (American
Appraisal Hellas Ltd) and the financial advisor (Kantor),
concerning their behaviour during the tender procedure,
the Council of Court of Appeals Judges, to which the
(45) The
above
acquitting
order
was
further
challenged
before
case was forwarded for adjudication, issued an acquitting
the national courts ( 29 ) and very recently the Appeal
order ( 28 ) and found, more particularly, that:
Court of Athens delivered a judgment acquitting all the
persons charged (judgment 466/2011). The full text of
this judgment is not yet available.
— Neither the first nor the second decision of the
Objections Committee were unlawful and no
adequate evidence was found of any misconduct on
the part of its members. The members of the
(46) In
conclusion,
in
consideration
of
all
the
above
obser
Objections Committee, by overruling CA’s objection
vations, the Greek authorities maintain that the measure
in the first and second round and accepting on the
under assessment does not involve State aid within the
other hand HR’s objection in the third round, did not
meaning of Article 107 TFEU.
infringe the terms of the invitations to tender and did
not treat the two bidders differently.
( 26 ) This pending case concerns an application by CA for annulment of
5. COMMENTS FROM INTERESTED PARTIES
the act of the Inter-ministerial Committee on Privatisation by which
the tender was awarded to HR. It alleges that the Tender had been
(47) By letter of 4 August 2010, representatives of the alleged
initiated by ETA without legal authorisation; the decisions of the
committees of the tender procedure, whereby HR’s first- and
beneficiary (i.e. Athens Resort Casino Holdings on behalf
second-round bids were deemed admissible and CA’s third-round
of HR) intervened in the Commission proceedings as an
bid inadmissible, were unlawful; the tender was unlawfully awarded;
interested party. The alleged beneficiary submitted the
ETA unlawfully negotiated the terms of the contract with HR; the
same comments as Greece, which are summarised in
principle of fair treatment of the bidders had been violated to the
the Section 4.
detriment of CA; the contract between ETA and HR should have
been audited before being signed by the Court of Auditors; the
contract between ETA and HR was not ratified by law. The appli
cation for annulment was heard on 22 November 2010. The
judgment is pending; once delivered, this judgement cannot be
subject to any other national judicial review.
(48) In addition, the alleged beneficiary states that the price
( 27 ) The Commission notes that another administrative case has been
actually paid for the stake in the casino was EUR
dealt with by the Council of State concerning an application by the
120 million, EUR 10 million higher than previously
members of CA for the annulment of an order by the National
Radio and Television Council (ESR), on the basis of which the
understood ( 30 ). It was also therefore even further above
signing of the contract between ETA and HR was permitted
the professional valuation of EUR 95,4 million that had
(alleging incompatibility/ineligibility criteria under national law).
been made (but not made known) before the tendering
The plenary session of the Council of State delivered judgment
procedure was launched.
606/2008 and referred the case to the Court of Justice of the EU
for a preliminary ruling. The main issue Court of Justice dealt with
was whether the contract in question (contract between ETA and
( 29 ) Further appeal by the Public Prosecutor of the Areios Pagos
HR) fell within the scope of EC Directives on public procurement.
(25/2007); partially accepted by the Areios Pagos (judgment
The Court found that the contract fell outside the scope of the EC
1531/2008) and case referred back to the Council of Court of
Directives (Joined Cases C-145/08 and C-149/08, see footnote 10).
Appeals Judges. The Council of Court of Appeals Judges referred
The case was recently heard again before the plenary of the Council
the case to the Appeal Court of Athens (order 800/2009). The
of State (11 March 2011); the judgment is pending; once delivered,
Appeal Court of Athens recently delivered a judgment acquitting
this judgment cannot be subject to any other national judicial
all the persons charged (judgment 466/2011).
review.
( 30 ) As confirmed e.g. by a financial report of August 2002 by Kantor
( 28 ) Order 437/2007 of the Council of Court of Appeals Judges of
(financial expert), sent by the Greek authorities after the decision to
Athens.
open proceedings, see footnote 24 above.

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L 258/80
EN
Official Journal of the European Union
4.10.2011
(49) The
alleged
beneficiary
further
argues
that
ETA
was
not
(53) In accordance with the settled case law of the Court of
only not obliged, but also had no right to call on the
Justice of the EU ( 33 ) and Commission rules and practice
provisional second highest bidder, because that would
on State aid in the context of privatisations ( 34 ), when a
have meant beginning new rounds of bidding, in
Member State purchases or sells shares of undertakings,
breach of the terms of the invitations to tender. It
no advantage is present if the Member State’s behaviour
further claims that the bid of EUR 162 million by CA
is consistent with that of a private market economy
outside the tendering procedure was at no risk of being
investor.
taken seriously, and was submitted only to trigger the
cancellation of the tender procedure. It confirms that it
would certainly have contested any decision to accept
this bid, risking the cancellation of the entire procedure.
In this respect, it also points to the opinion of the Legal
Council of State, which confirmed that the CA bid could
(54) In
particular,
when
the
sale
of
shares
takes
place
on
the
not be taken into account or be accepted ( 31 ).
stock exchange, it is generally assumed to be on market
conditions and not to involve any advantage. However,
when the disposal is carried out through a trade sale, it
can be assumed that no advantage is involved if the
following conditions are fulfilled: first, the shareholding
is sold by a competitive tender that is open to all comers,
transparent and non-discriminatory; second, no
(50) The alleged beneficiary also calls into question the
conditions are attached which are not customary in
supposition made by the Commission in the opening
comparable transactions between private parties and
decision, regarding distortion of competition and effect
which are capable of potentially reducing the sales
on trade, that gambling is a worldwide business and the
price; third, the shareholding is sold to the highest
companies in this field exercise an economic activity in
bidder; and fourth, bidders must be given enough time
an international market. The alleged beneficiary claims
and information to carry out a proper valuation of the
that Mont Parnès is not active internationally but
assets at the basis of their bid.
operates only locally and is therefore not in competition
with casinos abroad.
(55) In
other
words,
when
the
privatisation
is
carried
out
by
trade sale, the benchmark for assessing whether a trans
action concerning State assets involves an advantage is
whether a market economy operator placed in a similar
(51) By
letter
of
29
September
2010,
Club
Hotel
Casino
situation would have behaved in the same way, i.e. would
Loutraki AE (on behalf of CA) ( 32 ) intervened in the
have sold the company at the same price. Non-economic
Commission proceedings as an interested party. In that
considerations, such as for example industrial policy
letter it argues that, as regards the quantification of the
reasons, employment considerations or regional devel
alleged aid, account should also have been taken of the
opment objectives, which would not be entertained by
difference between the bids and the impact of the
a market economy operator, cannot be taken into
ratifying law on the obligations of the purchaser under
account as reasons for accepting a lower price and, on
the terms of the public tender procedure.
the contrary, point to the existence of an advantage.
This principle has been repeatedly explained by the
Commission and consistently confirmed by the
Court ( 35 ).
6. ASSESSMENT OF THE MEASURE
6.1. The existence of State aid in the disposal of
shares by trade sale
(56) Therefore,
if
any
of
the
above
requirements
are
not
met,

the Commission considers that the public sale must be
(52) Article 107(1) TFEU states that, save as otherwise
examined for possible aid implications and, thus, must
provided in the Treaty, any aid granted by a Member
be notified. By respecting these requirements, it is
State or through State resources which distorts or
threatens to distort competition by favouring certain
( 33 ) See for example Court of First Instance in Case T-296/97 Alitalia v
undertakings or the production of certain goods is
Commission [2000] ECR II-03871; Court of First Instance in Joined
incompatible with the internal market, in so far as it
Cases T-228/99 and T-233/99 WestLB v Commission [2003] ECR II-
affects trade between Member States.
00435; Court of First Instance in Case T-366/00 Scott SA v
Commission [2007] ECR II-01763; Court of Justice in Joined Cases
C-328/99 and C-399/00 Italy and SIM 2 Multimedia v Commission
( 31 ) Opinion 422/2002/EC of the Legal Council of State sitting in
[2003] ECR I-4035; Court of First Instance in Case T-358/94 Air
plenary session.
France v Commission [1996] ECR II-02109.
( 32 ) Club Hotel Loutraki was a member of CA and took part in the
( 34 ) Twenty-third Report on Competition Policy, 1993, p. 255.
tender procedure.
( 35 ) See footnote 33.

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EN
4.10.2011 Official
Journal
of
the
European
Union L
258/81
possible to ensure that the State obtains the highest price,
Commission, among other factors, in its assessment
i.e. the market price for its assets and therefore that no
under EU State aid rules that the bidding procedure
advantage is involved.
was open, unconditional and non-discriminatory.
(62) As
regards
the
question
raised
in
the
opening
decision
that one of the bids seemed to breach the rule in the
6.2. The sale of the 49 % stake in the capital of Mont
invitation to tender concerning the minimum increase
Parnès casino
over the previous bid, the Commission notes that this
(57) When
opening
the
proceedings
under
Article
108(2)
issue has been resolved, since the required increase was
TFEU, the Commission had doubts whether the sale of
1 % and not 10 % as the Commission had been given to
Mont Parnès casino was conducted within an open,
understand. Therefore the Commission considers that the
transparent and non-discriminatory tender procedure.
rules of the tender procedure were complied with in this
According to the information available at that stage,
regard.
the Commission considered that there were significant
difficulties in determining whether any preferential
treatment was unlawfully granted and also whether a
(63) As regards the alleged different treatment of the various
market price was or was not paid. The Commission
objections made during the tender procedure, the
was concerned that irregularities in the tendering
Commission also notes that the Greek authorities have
procedure might have resulted in State aid.
given an acceptable explanation for the exclusion of CA’s
bid from the tender procedure in light of the applicable
rules that forbid a second submission in the same
bidding round.
(58) The
Commission
then
carried
out
an
assessment
of
the
relevant facts within the framework of the formal inves
tigation. This assessment is based on the body of
(64) As regards the alleged unequal treatment of the various
evidence available in respect of the measure.
bids made after the tender procedure, the Commission
considers that the difference in treatment between
negotiating the price upwards with the successful
bidder while refusing to consider the complainant’s bid
of EUR 162 million may, given the existing doubts about
(59) During the various stages of the procedure, the
the latter’s legality, be accepted as permissible practice in
Commission has received information about the many
a tender procedure. Furthermore, the Commission cannot
legal actions at national level that vindicate the original
lend credibility to the complainant’s inadmissible bid of
tendering procedure. The Commission notes that, to date,
EUR 162 million because it was made only after the
the various court rulings at national level do not appear
tender procedure and in breach of its procedural rules.
to support the observations made by the complainant

about irregularities and unequal treatment in the tender
procedure (see also paragraphs 41 to 46 above). The
national courts rather appear to have so far confirmed
the lawfulness and the non-discriminatory nature of the
(65) As regards the suggestion that the whole procedure could
tender procedure, based on national rules.
have been cancelled, it has been stated by the Greek
authorities that this would have meant re-running the
procedure, potentially risking a further reduction in the
price to be obtained.
(60) Although the Commission’s assessment is not dependent
on the findings of national courts, it may take such
findings into consideration as one factor in its analysis.
(66) The
Greek
authorities
have
also
stated
that
the
terms
of
The Commission however notes that the present
reference of the public procurement contract were not
assessment is not in any way intended to interpret
amended by Law 3139/2003 or in any other way.
national law, which is solely the competence of the
Member State.
(67) As regards the price obtained, the Commission notes that
the price finally paid for the casino of EUR
120 million ( 36 ), while still short of the inadmissible bid
(61) In this
context, the Commission considers that the
of EUR 162 million that the complainant claims to have
lawfulness of the tender procedure under national law,
been ready to make after its exclusion from the
as described and justified through the extensive in-depth
procedure, is however higher than both the highest bid
examination performed by the various national courts so
far, constitutes a significant indication of the correctness
and the non-discriminatory nature of the tender
( 36 ) According to documentation provided by the Greek authorities (see
footnote 21 above), the price actually paid for the stake in the
procedure. This apparent validation of the tender under
casino was further improved to EUR 120 million, EUR 10 million
national rules can be taken into account by the
higher than previously understood.

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L 258/82
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Official Journal of the European Union
4.10.2011
of EUR 107 million the complainant appears to have
7. CONCLUSION
tendered and, by an even greater margin (25,5 %), the
expert valuation of the stake at EUR 95,4 million made
(69) The Commission finds that the sale by the Greek State of
in advance of the procedure.
its 49 % stake in the capital of Mont Parnès casino does
not constitute aid,
HAS ADOPTED THIS DECISION:
6.3. Conclusion
Article 1
(68) Following
the
opening
of
the
formal
investigation,
the
Greek authorities addressed the preliminary doubts
The sale by the Greek State of its 49 % stake in the capital of
expressed by the Commission in the opening decision
Mont Parnès casino does not constitute aid within the meaning
in a satisfactory manner. In particular, the Commission
of Article 107(1) of the Treaty on the Functioning of the
has not found evidence that allows the conclusion that
European Union.
preferential treatment was given to the alleged beneficiary
leading to the granting of any advantage. By selling its
share in the casino to the highest bidder in an open,
Article 2
unconditional and non-discriminatory bidding procedure,
This Decision is addressed to the Hellenic Republic.
Greece is assumed to have obtained the highest price on
the market and not to have foregone State resources. The
Commission can therefore accept that, under similar
circumstances, a market economy operator would have
Done at Brussels, 24 May 2011.
sold the relevant stake in the Casino at a similar price.
Consequently, the Commission considers that the sale by
For the Commission
the Greek State of its 49 % stake in the capital of Mont
Parnès casino does not entail any advantage and hence
Joaquín ALMUNIA
does not constitute State aid.
Vice-President

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