19.12.2009

EN

Official Journal of the European Union

C 312/13

—

(Case C-362/09 P)

2009/C 312/21

Language of the case: French

Parties

Appellant: Athinaïki Techniki AE (represented by: S.A. Pappas, lawyer)

Other parties to the proceedings: Commission of the European Communities, Athens Resort Casino AE Symmetochon

Form of order sought

—Set aside the order under appeal;

—grant the form of order sought at first instance;

—order the Commission to pay the costs.

Pleas in law and main arguments

The appellant puts forward four pleas in support of its appeal.

By the first plea, it is claimed that the Court of First Instance misinterpreted the earlier case-law of the Court of Justice with regard to the conditions governing the unlawfulness of the withdrawal of an administrative act. In order for the withdrawal to be valid, the unlawfulness of the act must have been established and it must have been revoked within a reasonable period. However, in the present case, the Commission’s act was withdrawn more than four years after its adoption and without any reasons being given.

By its second plea, Athinaïki Techniki submits that the Court of First Instance erred in law by failing to rule on the issue which it had raised concerning the misuse of powers. By withdrawing the decision at issue, the Commission was seeking not to withdraw the act in question so as to comply with the principle of legality, but to avoid review by the Community judicature.

Third, the appellant states that it still has an interest in obtaining a judgment annulling the decision of the Commission that is at issue, contrary to what was held in the order under appeal. The consequences of the Commission’s withdrawal of the act in question are not, in fact, confined merely to the reopening of the preliminary investigation procedure. A judgment annulling a decision gives rise to an obligation on the part of the Commission either to open the formal State aid investigation procedure, or to invite the Member State concerned to cancel or modify the aid in question. The Court of First Instance therefore erred in law when it took the view that the only consequence of annulment of the decision at issue was the obligation to reopen the preliminary investigation procedure.

Finally, the appellant takes the view that the Court of First Instance failed to have regard to the force of res judicata attaching to the judgment of the Court of Justice in the related Case C-521/06 P. It is apparent from that judgment that the Commission could not persist in its failure to take administrative action in the context of the State aid investigation procedure. However, by withdrawing the decision at issue, the Commission effectively did just that — failed to act — and the Court of First Instance committed a further error of law by failing to criticise the Commission at all.

—