On 5 March 2008, the European Commission ("Commission") adopted its so-called Greek lignite decision ("Decision", C(2008)824 final), concerning the grant or maintenance by Greece of lignite extraction rights to Dimosia Epicheirisi Ilektrismou AE ("DEI").
Prior to the liberalisation of the electricity market, DEI enjoyed the exclusive right to produce, transport and supply electricity in Greece. Nowadays, DEI is a limited liability company controlled by the Greek State (which holds 51% of its shares). DEI holds approximately 97% of the market for the supply of lignite, i.e. a combustible used to fuel electricity plants, as well as more than 85% of the wholesale electricity market.
In its Decision, the Commission found that Greece had infringed Article 86(1) EC in combination with Article 82 EC (now Articles 106(1) and 102 of the TFEU) by granting and maintaining privileged rights in favour of DEI for the exploitation of lignite in Greece. In doing so, according to the Commission, Greece had created a situation resulting in an inequality of opportunity as regards access to primary combustibles for the purposes of producing electricity and it allowed DEI to maintain and reinforce its dominant position on the Greek wholesale electricity market by excluding or hindering new entrants.
By judgment of 20 September 2012 (Case T-169/08), the General Court annulled the Greek Lignite decision. 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.
The contested decision was thus annulled, without it being necessary to examine the other pleas raised by DEI and Greece.