Both the Greek authorities and Mont Parnès contest the existence of State aid. They both argue on the grounds that the State does not forgo any revenue (or that if it does, then the casinos do not gain any advantage).

The Greek authorities argue that the price differentiation is only a price regulation issue, since the tax raised is a uniform proportion of the respective value of the price of admission tickets issued.

As for the differences between the prices of different casinos, Greece argues that the economic and social circumstances of the various casinos are different and not comparable. The Greek authorities contend that the distinction between charges is justified on public policy grounds, including that ‘the conditions applying to each casino, justify and are fully in line with the practice of setting a different ticket price for casinos located near large urban centres … and for casinos in the countryside … which is mainly inhabited by rural populations who – in their majority – have lower incomes and educational levels and are more in need of being discouraged from playing games of chance than the inhabitants of urban areas’.

On the observation of the complainant (Loutraki) that the price of admission tickets for the casino of Corfu changed from EUR 6 to EUR 15 when it was privatised in 2010, which rather contradicts the public policy arguments, the Greek authorities respond that the remote geographical location of the island of Corfu makes it uncompetitive compared to all other Greek casinos (therefore it does not distort competition). The authorities further argue that it is imperative to make the price of admission tickets dissuasive for the sake of protecting the inhabitants of Corfu, because the change in the operating conditions of the casino following privatisation will inevitably lead to a dramatic increase in its operating hours, its activities in general and its attractiveness.

The Greek authorities and Mont Parnès contend that should there be an advantage to lower priced casinos (because they attract more customers) then by the same token there is no loss of State resources. Furthermore, it is not certain that with a higher ticket price these alleged beneficiaries would generate more revenue for the State, and the alleged loss of revenues is therefore hypothetical. The Greek authorities and Mont Parnès also point out that the benefit of the lower price of admission tickets is received by the customer, and that the proportion of the price kept by the casino is a higher amount in the casinos with a EUR 15 admission, which is therefore a benefit to them.

The Greek authorities and Mont Parnès also maintain that there is no effect on competition/trade on the basis that each casino serves a local market. They dispute the possibility of competition with other forms of gambling cited in the Opening Decision, noting that Internet gambling is currently illegal in Greece.

The authorities and Mont Parnès also contend that even if the view were taken that the reduced price of admission tickets of EUR 6 might have influenced or may influence the decision of a foreign company to invest in a casino business in Greece, the foreign company could always avail itself of Law 2687/1953, as did the company Hyatt Regency Hotels and Tourism (Thessaloniki) S.A. in the case of the Thessaloniki casino.

As regards the allegations of complainant that the beneficiaries are able to grant admission gratuitously, while the 80 % contribution still has to be paid and which therefore illustrates most clearly the aid character of the measure, the Greek authorities claim that the practice is ‘exceptional’, as casinos allegedly make use of this exception to offer free admission (as a courtesy) mainly to VIPs or famous customers and as this practice is contrary to tax law (Law 2238/1994), since the expenditure from paying 80 % of the ticket price to the State from own resources is not recognised as productive expenditure and cannot be deducted from the company’s revenues (which would expose the company applying this practice to substantial tax burdens).

The authorities and Mont Parnès further draw the attention of the Commission to other differences between casinos in terms of various fiscal/regulatory measures. Thus, these differences which allegedly favour Loutraki (the complainant) would counter-balance the advantages that the beneficiaries enjoy due to the lower price of admission tickets. The main measure invoked is that each casino pays a proportion of annual gross profits to the State but under the law the proportion is lower for Loutraki than for others. On this point however, the Commission firstly observes that these other measures invoked by the Greek authorities and Mont Parnès, in case of existence, might constitute a separate aid measure in favour of Loutraki, if all conditions provided by the applicable EU State aid law are met. In any event these measures are distinct from the measure under assessment and therefore they are not covered by the present Decision.

Finally, Greece has indicated that it is examining a potential change of the pricing policy of casinos, in order to eliminate discriminations between casinos. However, it has not yet informed the Commission of the implementation of any such change.

The Greek authorities and Mont Parnès did not submit any observations concerning the compatibility and the legality of the aid.

• The principle of reasonable confidence of the subject of administration: the issue of the price of admission tickets to the casinos, and particularly the extent to which this price of admission tickets is a financial burden on the casinos, was brought before the Council of State approximately 15 years ago43. The Council of State ruled, under national law, that the price of admission tickets did not have a fiscal nature, which indirectly shows that it was not a financial burden on the casinos. Therefore, the beneficiary casinos could reasonably base their conduct on the assumption that there could be no question of State aid arising from differentiation in these prices, which are not considered a financial burden under national law.

• The principle that a right should not be exercised abusively: the Greek authorities and Mont Parnès contend that because Loutraki only lodged a complaint with the Commission 15 years after the adoption of the measure in dispute (in 1995), it is an abusive exercise of its right to have recourse to the Commission to seek the defence of its interests (and rights) arising from the provisions on State aid in the TFEU.

In order to constitute State aid, a measure must confer on beneficiaries an advantage which relieves them of charges that are normally borne from their budgets.

Regarding this, the Greek authorities argued, firstly, that, as the level of the contribution that all casinos operating in Greece must pay to the State is uniform (i.e. 80 % of the value of each admission ticket), whereas the element of difference in treatment comes from the pricing policy set in 1994-95 by legal provisions (setting the level of the price of admission tickets at EUR 15 for casinos to be licensed under the provisions of Law 2206/1994), such measure may not be covered by State aid rules.

The Greek authorities also contended that the admission charge constitutes only a measure of administrative control, without having a fiscal character since, as, according to the Decision of the Greek Council of State 4025/1998 (the supreme administrative court), the setting of a price of admission tickets in casinos has a social character and does not constitute a tax measure.

It should however be noted first that the setting of prices by the Law 2206/1994 may not be easily qualified as a typical pricing policy, since all casinos appear to be free to charge consumers a lower price of admission tickets, or even grant free admission, though in all cases they remain subject to the obligation to pay to the State 80 % of the respective value of the admission tickets issued, regardless of what was actually charged to the consumers.

Anyway, in applying the EU rules on State aid, it is irrelevant whether the measure under assessment is of a pricing or tax nature, since Article 107 of the TFEU applies to aid measures ‘in any form whatsoever’ that provide an advantage. The fact that its primary aim was not to generate fiscal revenues is not in itself sufficient to allow such a measure to escape the qualification of State aid.

Even admitting that the setting of a price of admission tickets in casinos may have a social objective, the question of whether it constitutes an advantage amounting to State aid must be assessed in terms of effects, at the level of individual companies with a view to determining whether some companies contribute less to public revenues. The fact that the exemption from the application of the general price of admission tickets of EUR 15 was granted individually to specific casinos, and in particular the fact that the levy of 80 % is to be paid to the State on the basis of the lower price which those casinos must – in principle (see above) ask, shows that an advantage is granted to those casinos.

By this measure the Greek State relieves the public casinos from a burden that otherwise they should bear if a non-discriminatory and competitive-neutral taxation were enforced. This non-discriminatory and competitive neutral taxation was, in principle, established in Greece by Law 2206/1994 on the creation, organisation, functioning and control of casinos which set at EUR 15 the price of admission tickets and at 80 % of that level the admission tax burden due to the State. However, by not enforcing this non-discriminatory and competitive neutral taxation in respect of the public casinos (and the assimilated private casino of Thessaloniki) and instead allowing them to pay only EUR 4,8 as admission tax, the Greek State has favoured these undertakings. These casinos have effectively paid a lower fiscal burden per person out of their respective total income. The Commission notes that this total income includes not only their admissions revenue (revenues made solely from the price of admission tickets), but also that from their other sources of income, such as gambling, accommodation, bar and restaurant services, shows etc. (total revenues).

The Greek authorities observed that the direct beneficiary of a lower tax burden is the customer. However, even if it could be argued that the customer is also a beneficiary of a reduced tax burden per admission, since he pays a total lower price, this fact does not preclude the measure from providing an advantage to the relevant undertakings, in this case the beneficiary casinos, since they have to pay a lower amount of fiscal charges per customer received.

Furthermore, given the customary commercial practice followed by casinos in Greece to waive the price of the admission tickets while paying to the State the admission tax (80 % of the face value of the admission tickets), the advantageous effect of the fiscal discrimination in favour of the public casinos is further reinforced, since the cost of the admission is notably higher for the private casinos with a higher admission tax of EUR 12 than for the public ones that only have to finance EUR 4,8 out of total revenue of their business.

As concerns the argument made by Greece that this practice is contrary to national tax law, the Commission reminds that the permission to grant free entrance is expressly provided for in the national law concerning casinos, and it manifestly is applied by the beneficiary casinos.

As to the argument that the expenditure from paying 80 % of the ticket price to the State from own resources is not recognised as productive expenditure and cannot be deducted from the company’s revenues under Greek tax law, thus exposing the company applying this practice to substantial tax burdens, the Commission observes that this argument actually favours the arguments made by the complainant, as to the fact that because of the significant tax burden resulting from the payment of the tax out of own revenues, a private casino cannot in practice afford to grant free admission, and thus reinforces the argument that this constitutes an advantage to the lower priced casinos.

Greece also contended that because casinos keep 20 % of the unequal admission price, the advantage is for casinos with a higher price that cash in a net revenue of EUR 3, compared to the EUR 1,2 for the public casinos. This contention is however in fact misleading, since it ignores two key facts to understand in full the true anti-competitive effects of the measure. On the one hand, the setting by regulation of the prices of tickets, including the admission tax, at a lower level for certain casinos, makes them more attractive for customers, thus (i) deviating demand from the pattern that would prevail if casinos would compete only on their own merits based on the individual scope and quality of the services offered and (ii) all other things equal, increasing artificially their level of admissions. On the other hand, as previously explained, the revenues from admissions are only a limited proportion of the total revenues that a customer attracted by a casino generates for the undertaking and out of which the casinos have to pay the admission tax.

Finally, it is to be noted that the existence of advantage in the fiscal discrimination is even recognised by the relevant national provisions themselves. As described by the Greek authorities, the subjection of the casino of Thessaloniki to the regime of lower priced admission tickets and (lower) tax is made on the basis of a Law of 1953 which grants to undertakings established with foreign capital the most favourable treatment granted to national undertakings. It can be observed that although the Greek authorities maintain that the said regime is not advantageous, this Law is nevertheless applied by the Greek authorities to the Thessaloniki casino on grounds that it is the most favourable treatment to national undertakings, by contrast with the more onerous one applied to other private casinos.

In regard of all the above considerations, the Commission concludes that the measure under assessment, namely the fiscal discrimination produced by the joint effect of a uniform admission tax applied to unequal regulated prices, provides an advantage to the lowered priced casinos.

The advantage referred to above is imputable to the State and is financed by State resources.

As previously explained, the fiscal discrimination is the result of a series of administrative acts, decrees and regulations adopted by the Greek State, among which in particular: the Law 2206/1994; the Ministerial Decision of 1995; the Law 3139/30.4.2003, the Law 2687/1953; the decisions of the General Secretary of EOT (managing the public casinos) issued in accordance with Law 1624/1951 and Decree 4109/1960: EOT decision 535633/21.11.1991, setting the price of admission tickets to the Mont Parnès Casino at 2 000 drachmas; EOT decision 508049/24.3.1992 setting the price of admission tickets to the Corfu and Rhodes Casinos at 1 500 drachmas (later adjusted for the Corfu Casino to 2 000 drachmas by decision 532691/24.11.1997); the licenses granted to each casino under national law and confirming the respective price of admission tickets and the obligation to pay 80 % thereof as applicable to each casino.

Furthermore the fiscal discrimination under assessment is financed by State resources. If the State forgoes revenues which it would otherwise have to collect from an undertaking in normal circumstances, the relevant measure is financed by State resources.

In fiscal terms the fiscal advantage in this case results from the artificial reduction for the public casinos of the tax base on which the 80 % admission tax rate sits, from the general EUR 15 to the EUR 6 face value of the admission ticket in the public casinos.

Greece argued that, as the casinos with a lower price may thereby attract more customers, there is no certainty that the State forgoes revenue. Greece maintains that therefore the measure would not constitute State aid.

In fact the contention by the Greek authorities is erroneous in that the benchmark against which the Greek authorities test the effects of the fiscal discrimination on the State budget is biased by the advantage built in the measure. The Greek authorities introduce in their reasoning the dynamic effect of a reduction in price that might increase the demand and eventually the tax collected, since the latter is proportionate to the number of admissions. This comparison is however inaccurate, considering that it is the inequality itself created by the advantage, namely the fact that there is a lower price and the corresponding lower tax burden per admission, which makes the demand increase.

Anyway the Greek authorities have not provided any proof that the overall tax revenue of the admission tax on casinos is maximised with that pattern of unequal prices. In fact if the Commission were to follow the reasoning that a lowering of the admission price to EUR 6 produces an increase in tax collection, the tax revenue maximisation would take place at a level where all admission tickets are priced at EUR 6 for all casinos both private and public, contradicting the Greek contention that this point is reached with the fiscal discrimination resulting from the unequal prices.

Accordingly, the contested advantage is financed through State resources.

According to Article 107(1) of the TFEU, in order to constitute State aid, the measure must be specific or selective in that it favours ‘certain undertakings or the production of certain goods’.

Firstly, the Commission observes that in the case under review the general tax system is constituted by the regime applicable (in principle) to all casinos, as established by the Law 2206/1994 and the implementing Ministerial Decision of 1995 (as also confirmed by the Greek authorities – see paragraph 19 herein above).

Secondly, the Commission notes that the measure at issue constitutes a departure from the application of the general tax system. As confirmed by the Greek authorities, the special provisions applicable to the public casinos (and the assimilated private casino of Thessaloniki) are considered exceptions from the application of the general provisions of the Law 2206/1994 and the implementing Ministerial Decision of 1995 (see also paragraph 19 and the following herein above).

The Commission observes that the requirement to remit 80 % of the price of admission tickets did not apply to the casinos of Mont Parnès and Corfu until 2003. As noted above, as concerns the casinos of Thessaloniki and Rhodes, this requirement became applicable upon issuance of their license under the Law 2206/1994, namely since 1995 in the case of Thessaloniki, and since 1996 in the case of Rhodes. As concerns the price of admission tickets, it has remained at EUR 6 in the case of Mont Parnès and Thessaloniki until present, for Corfu until its privatisation in August 2010, and for Rhodes until its privatisation in 1999. However, both the requirement to remit 80 % and the price of admission tickets of EUR 15 applied to other casinos as of 1995 and have been in practice applied as such.

In consideration of all the above, the Commission considers that the measure is selective.

The Greek authorities stated that the individual circumstances of each casino are different, and that the prices of admission tickets are set in function of those circumstances, taking account of the objective of setting such a price which is to discourage persons of low income from gambling.

The Commission cannot accept these arguments. The argument that the level of the price is set according to and justified by the circumstances of each individual casino, taking account of the objective of discouraging persons of low income from gambling, cannot be reconciled with the fact that the casinos of Mont Parnès and Thessaloniki, which apply the price of EUR 6, are both close to major centres of population in Greece. Nor can it be reconciled with the explicit possibility to admit customers without payment provided that 80 % of the price is nonetheless remitted to the State.

Furthermore, the Commission also observes that it is not apparent why this lower price is necessary as concerns these casinos specifically and not in the case of other casinos, nor have the Greek authorities explained the economic calculation for setting the lower price of admission tickets at the specific level of EUR 6 and not another intermediary level, and if individual circumstances are concerned, which according to Greece mainly consist in the geographical situation of each casino, why all the beneficiary casinos are (in principle, see above) obliged to charge the same price of admission tickets and not a ‘personalised’ one, adapted to their individual situation. As an example, should the lower price of admission tickets be justified by the specificities of the individual geographical situation of each of the casinos, than such reasoning in any case would not apply to the casino of Thessaloniki who seems to enjoy this treatment not in consideration of its geographical situation, but in consideration of a national provision granting to undertakings established with foreign capital the most advantageous treatment applicable to national undertakings. Thus, the geographical situation of the casino of Thessaloniki does not appear to have been taken into consideration at any time in setting the price of its admission tickets. As a further example, in August 2010, the Corfu Casino passed to EUR 15 upon its privatisation. However, the Greek authorities have not satisfactorily explained why at that time the abovementioned special circumstances no longer applied and thus why the lower price of admission tickets was no longer necessary in consideration thereof.

In light of all the above, the Commission concludes that the selective character of the measure in review is not justified by the nature of the general system. Therefore, the contested measure is considered to include a discriminating element, in the form of a reduction in the tax base resulting in a fiscal advantage benefiting to individually determined casinos, discrimination which is not justified by the logic of the Greek general relevant tax system.

Accordingly, the Commission therefore concludes that the criterion of selectivity in the sense of Article 107(1) of the TFEU is met in the present case.

In order to constitute State aid the measure must affect competition and trade between Member States. This criterion supposes that the beneficiary of the measure exercises an economic activity, regardless of the beneficiary’s legal status or means of financing.

The contested measure alleviates the taxes that the beneficiaries have to pay with respect to the rest of casinos in Greece, thereby strengthening their comparative financial position and increasing the profitability of their investments as opposed to a situation where their profitability would be exclusively based on their own merits.

The Commission fully respects the right of Member States to set the objectives of their policy in the area of gambling provided that any restrictions on the freedom to provide services are suitable for achieving the objectives pursued, do not go beyond what is necessary in order to achieve those objectives and are applied in a non-discriminatory manner. However the Commission cannot accept that these arguments deprive the measure at issue of any effect of distortion of competition or on trade between Member States.

Furthermore, the overall economic crisis affects consumer habits and disposable income for entertainment purposes such as using casino services. In this particular context a differentiation in prices of admission tickets has an even more significant distortive impact on the choices made by consumers and thus is liable even more so to distort competition on the casino market.

As concerns the argument proposed by the authorities and Mont Parnès that even if the view were taken that the reduced price of admission tickets of EUR 6 might have influenced or may influence the decision of a foreign company to invest in a casino business in Greece, the foreign company could always avail itself of Law 2687/1953, the Commission observes that the application of the Law of 1953 is not automatic and would in fact allow the further granting of the more advantageous treatment granted to the beneficiary casinos (i.e. the lower price of admission tickets of EUR 6) to other undertakings. This measure would thus be liable to further propagate the fiscal discrimination under assessment. Furthermore, the Commission notes that although the Law 2687/1953 could have been invoked by other casinos, if they had brought in capital from abroad and had submitted the application in good time, its application is subject to certain specific arbitrary rules that make it a selective measure. In fact, the only one other example of potential application of this Law that has been brought to the attention of the Commission – namely concerning the casino on Syros, who submitted an application under this law – was refused because the application was submitted after the importing of the foreign capital (and not ahead of this).

The Commission notes, further, that when the casino of Mont Parnès was privatised, the possibility of a licence for a second casino with the same region was specifically provided for in the sale. Clearly the likelihood of investment in such an operation would depend on the conditions of competition with the existing operator. Since it can not be ruled out that casinos are competing with similar companies in another Member State, this requirement pursuant to Article 107(1) of the TFEU must be regarded as fulfilled.

Therefore the Commission concludes that the contested measure is liable to distort competition and affect trade between Member States by potentially improving the operating conditions of the beneficiaries being directly engaged in economic activities, which are liable to pay this tax on admissions in casinos in Greece.

Given all the above considerations, the Commission concludes that the criteria for the existence of aid within the meaning of Article 107 of the TFEU are met and that the measure constitutes State aid in favour of the casinos with a lower price of admission tickets. These casinos are Mont Parnès, Corfu, Thessaloniki and Rhodes. In the case of Rhodes, the Commission understands that the casino is no longer a beneficiary (as it stopped practicing the lower price of admission tickets upon its privatisation in April 1999). The Commission considers that neither the Greek authorities nor Mont Parnès have advanced any argumentation which would be sufficiently articulated to alter this conclusion.