# C_2010328EN.01001701.xml

| 4.12.2010 | EN | Official Journal of the European Union | C 328/17 |
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4.12.2010

EN

Official Journal of the European Union

C 328/17

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Appeal brought on 27 September 2010 by Deutsche Post AG against the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08 Deutsche Post AG v European Commission

(Case C-463/10 P)

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2010/C 328/32

Language of the case: German

Parties

Parties

Appellant: Deutsche Post AG (represented by: J. Sedemund and T. Lübbig, Rechtsanwälte)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

| — | Set aside in its entirety the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08; |
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Set aside in its entirety the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08;

| — | reject the plea of inadmissibility raised by the Commission before the General Court; |
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reject the plea of inadmissibility raised by the Commission before the General Court;

| — | annul the decision of the European Commission of 30 October 2008 concerning the ‘information injunction’ pursuant to Article 10(3) of Regulation (EC) No 659/1999 in the proceedings ‘State aid C 36/2007 — Germany; State aid to Deutsche Post AG’; |
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annul the decision of the European Commission of 30 October 2008 concerning the ‘information injunction’ pursuant to Article 10(3) of Regulation (EC) No 659/1999 in the proceedings ‘State aid C 36/2007 — Germany; State aid to Deutsche Post AG’;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

This appeal has been brought against the order of the General Court dismissing as inadmissible the appellant’s action against the Commission’s information injunction of 30 October 2008 addressed to the Federal Republic of Germany in proceedings concerning State aid to the appellant.

The main issue in the present appeal is whether, and under what conditions, an information injunction of the Commission pursuant to Article 10(3) of Regulation (EC) No 659/1999 may be challenged. In the appellant’s view, an action against a decision requesting information to be supplied that is available only to the appellant is admissible if it casts doubt on compliance with the procedural requirements of Article 10(3) of Regulation No 659/1999 and on the necessity of the information required.

By contrast, the General Court denied that such an action is admissible, in essence, on the basis that an information injunction has no legal consequences. It is merely an interim measure which is only preparatory to a final decision.

The appellant puts forward five grounds of appeal.

| 1. | The General Court is said to have failed in the order under appeal to recognise that, as legally binding acts of the European Union, information injunctions are subject to review by the Courts of the Union. The Member State is under a binding obligation, under Article 10(3) of Regulation No 659/1999 in conjunction with the fourth paragraph of Article 288 TFEU, and in accordance with the principle of sincere cooperation under Article 4(3) TEU, to supply the information required. Since the Member State is obliged to implement the decision, the duty to provide information is passed directly to the appellant who (alone) is in possession of the information requested. |
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1.

The General Court is said to have failed in the order under appeal to recognise that, as legally binding acts of the European Union, information injunctions are subject to review by the Courts of the Union. The Member State is under a binding obligation, under Article 10(3) of Regulation No 659/1999 in conjunction with the fourth paragraph of Article 288 TFEU, and in accordance with the principle of sincere cooperation under Article 4(3) TEU, to supply the information required. Since the Member State is obliged to implement the decision, the duty to provide information is passed directly to the appellant who (alone) is in possession of the information requested.

| 2. | Furthermore, the General Court failed to recognise that it would be incompatible with the guarantee of judicial protection under European Union law if a Member State and a directly affected undertaking were obliged to supply whatever information the Commission might request under Article 10(3) of Regulation No 659/1999, without any consideration being given as to whether the procedural requirements of Article 10(3) had been complied with and as to whether the information was in any way related to the purpose of the State aid control procedure. |
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2.

Furthermore, the General Court failed to recognise that it would be incompatible with the guarantee of judicial protection under European Union law if a Member State and a directly affected undertaking were obliged to supply whatever information the Commission might request under Article 10(3) of Regulation No 659/1999, without any consideration being given as to whether the procedural requirements of Article 10(3) had been complied with and as to whether the information was in any way related to the purpose of the State aid control procedure.

| 3. | The General Court misinterpreted Article 10(3) and the third sentence of Article 13(1) of Regulation No 659/1999 in that it failed to recognise that the information decision has direct legal consequences for the legal position of the Member State and the undertaking concerned not least because the third sentence of Article 13(1) of Regulation No 659/1999 enables the Commission to take a decision concerning possible State aid on the basis of the information available if a Member State fails to comply with an information injunction. The consequent relaxation of the Commission’s burden of proof has the effect of considerably worsening the procedural position of the undertaking concerned, which is effectively forced to supply the information sought in order to protect its rights. |
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3.

The General Court misinterpreted Article 10(3) and the third sentence of Article 13(1) of Regulation No 659/1999 in that it failed to recognise that the information decision has direct legal consequences for the legal position of the Member State and the undertaking concerned not least because the third sentence of Article 13(1) of Regulation No 659/1999 enables the Commission to take a decision concerning possible State aid on the basis of the information available if a Member State fails to comply with an information injunction. The consequent relaxation of the Commission’s burden of proof has the effect of considerably worsening the procedural position of the undertaking concerned, which is effectively forced to supply the information sought in order to protect its rights.

| 4. | The General Court also erred in law in so far as it denied that the information decision had any legal consequences, maintaining that it is merely an interim measure preparatory to the final decision. The General Court thereby failed to recognise that that does not preclude the liability of the measure to be set aside if the purported interim measure — such as the decision under Article 10(3) of Regulation No 659/1999 — itself has damaging legal consequences. |
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4.

The General Court also erred in law in so far as it denied that the information decision had any legal consequences, maintaining that it is merely an interim measure preparatory to the final decision. The General Court thereby failed to recognise that that does not preclude the liability of the measure to be set aside if the purported interim measure — such as the decision under Article 10(3) of Regulation No 659/1999 — itself has damaging legal consequences.

| 5. | Finally, the General Court failed to recognise that Commission infringements with respect to the adoption of the information decision cannot be adequately considered in the context of an action against the final decision, particularly as it is not possible at that stage to appeal the incompleteness of the factual basis of the case. At the same time, provisional compliance with an unlawful information injunction could, however, as in the present case, entail considerable time and expenditure for the undertaking concerned. |
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5.

Finally, the General Court failed to recognise that Commission infringements with respect to the adoption of the information decision cannot be adequately considered in the context of an action against the final decision, particularly as it is not possible at that stage to appeal the incompleteness of the factual basis of the case. At the same time, provisional compliance with an unlawful information injunction could, however, as in the present case, entail considerable time and expenditure for the undertaking concerned.

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