Commission Decision (EU) 2018/612 of 7 April 2016 on State aid SA.28876 - 2012/C (ex CP 202/2009) implemented by Greece for Container Terminal Port of Piraeus (notified under document C(2018) 1978)Text with EEA relevance.

Article 2, paragraph 10 of law 3755/2009.

(5) Regarding the exemption from stamp duty for compensations paid by PPA to PCT, in the final decision, the Commission concluded that it entailed a selective advantage in favour of PCT in that it alleviated it from the payment of stamp duties in the case of: (a) compensation paid by PPA due to the activation of a penalty clause of the concession contract, and (b) other types of compensation paid by PPA, such as for damages related to the concession contract or for international breach of contract

See recitals 195-209 of the final decision, and in particular recitals 202-205.

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(6) Concerning in particular the case of compensation paid by PPA due to the activation of a penalty clause (i.e. under (a) in the immediately above recital) the Commission concluded that the advantage conferred to PCT consisted in its alleviation from the payment of a fixed stamp duty

See recitals 201-203 of the final decision.

in such cases. This conclusion was based on the consideration that according to the generally applicable framework, i.e. the stamp duty code

Presidential decree of 28-7-1931, OJ A239 1931.

as interpreted by circular 44/1987, the activation of an ancillary agreement related to a contract subject to VAT is subject to a fixed stamp duty

See recital 197 of the final decision.

.

(7) However, in its application for annulment of the final decision before the General Court, Greece indicated that fixed stamp duties have been generally abolished since 2001

According to Article 25 of law 2873/2000.

, i.e. before law 3755/2009 introduced the relevant exemption in favour of PCT.

1. ASSESSMENT OF THE MEASURE

(8) During the administrative procedure that led to the final decision, the Greek authorities never brought to the Commission's attention the fact that fixed stamp duties have been abolished since 2001, by virtue of Article 25 of law 2873/2000. The Greek authorities never mentioned this fact, although the opening decision had opened the formal investigation procedure of Article 108(2) TFEU with respect to the exemption of PCT from stamp duties in general (including fixed and proportional stamp duties), provided to PCT on the basis of Article 2(10) of the Law

See section 4.2.3.8 (recitals 194-203) of the opening decision.

. Therefore, on the basis of the information available to the Commission when the final decision was adopted, the Commission was entitled to conclude that Article 2(10) of the Law granted incompatible State aid to PCT by exempting it from both fixed and proportional stamp duties on compensation paid by PPA to PCT under the concession contract

See also Case C-390/06 Nuova Agricast EU:C:2008:224, para. 54.

.

(9) Even if the Greek authorities belatedly

For the first time with the application for annulment of the final decision before the General Court.

informed the Commission on the general abolishment of fixed stamp duties, the Commission, acting as a sound administration and although not obliged to modify the final decision, wishes however to modify that final decision, in order to fully reflect the present situation. Specifically, in view of Article 25 of law 2873/2000, the Commission has no longer any reason to consider that the exemption of Article 2(10) of the Law confers an advantage to PCT in case PPA pays compensations to PCT due to the activation of a penalty clause of the concession contract. According to the generally applicable rules for this type of compensation payment, no stamp duty was due at the time law 3755/2009 was adopted. Therefore, the relevant stamp duty exemption does not confer a selective advantage to PCT and, thus, does not constitute State aid, in this respect.