EUROPEAN
COMMISSION
Brussels, 29.6.2016
C(2016) 4012 final
of 29.6.2016
on intervention before the International Court of Arbitration as a non-disputing party
in case no. 18675/GZ/MHM/AGF/ZF between Hellenic Shipyards S.A., Privinvest
Holding SAL, Privinvest Shipbuilding SAL Holding and Hörn-Beteiligungs GmbH and
the Hellenic Republic
[Page 2]
of 29.6.2016
on intervention before the International Court of Arbitration as a non-disputing party
in case no. 18675/GZ/MHM/AGF/ZF between Hellenic Shipyards S.A., Privinvest
Holding SAL, Privinvest Shipbuilding SAL Holding and Hörn-Beteiligungs GmbH and
the Hellenic Republic
Having regard to the Treaty on the Functioning of the European Union, as well as Article
29(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for
the application of Article 108 of the Treaty on the Functioning of the European Union.1
Whereas:
(1) The Commission has been informed of arbitration procedures before the International
Court of Arbitration of the International Chamber of Commerce in case no.
18675/GZ/MHM/AGF/ZF between Hellenic Shipyards S.A., Privinvest Holding SAL,
Privinvest Shipbuilding SAL Holding and Hörn-Beteiligungs GmbH (the "Claimants")
and the Hellenic Republic.
(2) On 2 July 2008, the Commission adopted a decision in the case concerning State aid to
Hellenic Shipyards ("Recovery Decision").2 With the Recovery Decision, the
Commission concluded that Greece granted incompatible aid to Hellenic Shipyards
("HSY") and ordered the recovery of that aid including recovery interest to be
calculated until the date of actual repayment of the aid.3 The incompatible aid relates
to public support measures in favour of HSY in various forms between 1997 and 2009
and it is not related to the contractual obligations into which Greece and the company
have entered. The Commission's Recovery Decision has been confirmed by the Courts
of the European Union and has by now become final.4
(3) Following the adoption of the Recovery Decision, Greece invoked national security
interests under Article 346 TFEU and sought that recovery is implemented only with
respect to the civil part of the yard. By letter of 1 December 2010 (the so-called
"Military Decision"), the Commission accepted the Greek proposal for the
implementation of certain commitments to be considered as a way of implementing
the Recovery Decision. The "Military Decision" had to be implemented within six
months. It has also become final.5 To date, the "Military Decision" has not been
implemented.
1 OJ L 248, 24.9.2015, p. 9. ↩
2 OJ L 225, 27.08.2009, p. 104. ↩
3 The aid principal was calculated at approximately EUR 256 million. ↩
4 On 15 March 2012, the General Court rejected the application for annulment filed by the Hellenic ↩
Shipyards against the recovery decision (Case T-391/08). The Court of Justice rejected the appeal of the
Hellenic Shipyards against that judgment on 28 February 2013 (Case C-246/12P).
5 On 19 October 2012, the General Court rejected the application for annulment of the Hellenic Shipyards ↩
(Case T-466/11) and on 12 September 2013 the Court of Justice also rejected the appeal of the Hellenic
Shipyards against the order of the General Court (Case C-616/12P).
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(4) On 28 June 2012, the Court of Justice condemned Greece under Article 108(2) TFEU
for the non-implementation of the Commission's decisions (Case C-485/10). In that
judgment, the Court concluded that Greece should have implemented the Recovery
Decision by 13 December 2008. The Court also held that the "Military Decision" did
not replace the Recovery Decision but only set out one way of implementing it.
(5) In the absence of implementation of the Commission's decisions, the Commission sent
a Letter of Formal Notice to Greece on 27 November 2014 under Article 260(2)
TFEU. Implementation by way of the "Military Decision" failed in particular because
of HSY's lack of cooperation in the sale of civil assets.
(6) Nevertheless, in order to implement the Recovery Decision, on 4 December 2015 the
Greek authorities sent a recovery order to HSY for the amount of EUR 524 million;
corresponding to about 80% of the amount to be recovered. HSY submitted an
application for the annulment of that national recovery order on 5 February 2016
before the Athens Administrative Court. In March and April 2016, the Greek tax
authorities adopted acts for the enforcement of the abovementioned national recovery
order. HSY submitted an application for the annulment of those enforcement acts on
13 April 2016 before the Athens Administrative Court. Furthermore, on 23 May 2016,
HSY requested the suspension of the national recovery order and of the relevant
enforcement acts of the tax authorities until the main cases are decided (interim relief).
(7) To the Commission's knowledge, the Claimants in the proceedings of the case before
the International Court of Arbitration allege inter alia that Greece did not "negotiate"
well enough the "Military Decision". The Claimants have also requested interim relief
against the recovery order issued by Greece pursuant to the Recovery Decision.
(8) In order to safeguard the Union's interest in ensuring the uniform and effective
application of State aid rules, it is proposed that the Commission should decide to
request leave to intervene as a non-disputing party in the arbitration proceedings (both
in the main case and in the interim relief case before the International Court of
Arbitration) and that it should submit written observations and take part, if invited, in
any oral hearing.
HAS DECIDED AS FOLLOWS:
The Commission shall request leave to intervene before the International Court of Arbitration
as a non-disputing party in case no. 18675/GZ/MHM/AGF/ZF between Hellenic Shipyards
S.A., Privinvest Holding SAL, Privinvest Shipbuilding SAL Holding and Hörn-Beteiligungs
GmbH and the Hellenic Republic.
The Legal Service shall implement this Decision.
Done at Brussels, 29.6.2016
For the Commission
Jean-Claude Juncker
The President