Action brought on 25 November 2005 — Olympic Airways Services S.A. v Commission of the European Communities

(Case T-423/05)

(2006/C 74/42)

Language of the case: Greek

Parties

Applicant: Olympic Airways Services S.A. (Athens, Greece) (represented by: P. Anestis, T. Soames, D. Geradin, S. Mavroghenis and S. Jordan, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

When the Greek state airline Olympic Airways was privatised, a new company (‘NOA’) began operating, taking over the flight operations, while the applicant (‘OA’) retained all other activities, principally ground handling, maintenance and aircraft repair. In the contested decision, the Commission found that Greece had granted to NOA and the applicant State aid that was incompatible with the Treaty, inter alia by reason of:

By its action, the applicant contests first of all the part of the decision that relates to the supposed overvaluation of NOA's assets when it was set up. The applicant pleads infringement of Article 87(1) and (3) EC and Article 253 EC (duty to state reasons). It submits that the ‘private investor’ test was misapplied since the Hellenic Republic acted as any well-advised private businessman would act. It further contends that methodology and conclusions were mistaken in relation to the calculation of the amount of the supposed benefit. It also argues that the reasoning with regard to fulfilment of the conditions required in order for Article 87(1) EC to apply was deficient.

So far as concerns the payment of sums by the State in respect of its debts, the applicant does not dispute that those payments were made, but considers that they do not involve elements of State aid and pleads in this regard that Article 87(1) EC has been infringed. More specifically, the applicant pleads that continuance of State aid, of which those payments by the Greek State form part, had been accepted by the Commission, and by the contested decision the Commission argues the contrary under a mistaken legal assessment. In the same context, the applicant contends that the Commission manifestly erred in its assessment in relation to the payments that were made before the alteration of certain guarantees and to the classification of certain payments by the State as State aid. The applicant also pleads, in relation to this part of the decision too, infringement of an essential procedural requirement, that is to say of the duty to state reasons.

In relation to the finding in the contested decision that Greece displayed ‘continuous forbearance’ towards OA, the applicant submits that Community law was infringed as regards the meaning of State aid, because the Commission did not examine Greece's conduct in the light of the ‘private creditor’ test and failed to satisfy the burden of proof. It further pleads that there was a manifest error of assessment in relation to the calculation and the quantification of the supposed benefit and that the reasons stated were insufficient.

Finally, the applicant pleads infringement of general principles of Community law, that is to say, first of all, the right to be heard, which it considers to have been infringed because of the Commission's refusal to grant the Hellenic Republic, and by extension the applicant itself as a directly affected party, access to the findings drawn up by a firm of auditors appointed by the Commission. The applicant further pleads infringement of the principle ‘non bis in idem’ because the contested decision has imposed interest, on the basis of the Community rate of interest, on the sums of aid which must be recovered, but the latter already include fines, interest and additional charges on the basis of the national provisions.