# C_2023083EN.01002601.xml

| 6.3.2023 | EN | Official Journal of the European Union | C 83/26 |
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6.3.2023

EN

Official Journal of the European Union

C 83/26

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Action brought on 13 December 2022 — Zásilkovna v Commission

(Case T-784/22)

(2023/C 83/33)

Language of the case: English

Parties

Applicant: Zásilkovna s. r. o. (Praha, Czech Republic) (represented by: R. Kubáč, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission decision C(2022) 5136 final of 25 July 2022, in case SA.55208 (2020/C) — Compensation to Czech Post implemented by Czechia for the provision of the universal postal service obligation for the period 2018-2022, declaring the State aid to be compatible with the internal market; |
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annul Commission decision C(2022) 5136 final of 25 July 2022, in case SA.55208 (2020/C) — Compensation to Czech Post implemented by Czechia for the provision of the universal postal service obligation for the period 2018-2022, declaring the State aid to be compatible with the internal market;

| — | order the Commission to bear its own costs and to pay those of the applicant. |
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order the Commission to bear its own costs and to pay those of the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging that the Commission infringed the essential procedural requirement as its decision is not duly reasoned. In particular, the Commission has limited its reasoning to simple statements without any details and disregarded all other requirements laid down by the relevant case law. Thus, the Commission has not sufficiently substantiated this deviation from the case law and from its expressed preliminary views. Therefore, the Commission infringed the applicant’s essential procedural right, since all EU institutions are obliged to state the reasons for the measure in question to ensure its reviewability before the courts. |
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1.

First plea in law, alleging that the Commission infringed the essential procedural requirement as its decision is not duly reasoned. In particular, the Commission has limited its reasoning to simple statements without any details and disregarded all other requirements laid down by the relevant case law. Thus, the Commission has not sufficiently substantiated this deviation from the case law and from its expressed preliminary views. Therefore, the Commission infringed the applicant’s essential procedural right, since all EU institutions are obliged to state the reasons for the measure in question to ensure its reviewability before the courts.

| 2. | Second plea in law, alleging the Commission made a manifest error of assessment in concluding that the Czech Post allocates costs separately for universal postal service obligations (‘UPSO’) and non-UPSO (commercial) activities. However, the applicant is convinced that costs for the infrastructure investment and network operation are not proportionally shared between the service of general economic interest (‘SGEI’) and other commercial business activities of the Czech Post, as some of the same relevant costs within the UPSO (such as personnel, equipment including cars, databases, etc.) are in practice used also for non-UPSO commercial activities. The Commission’s conclusion that the net avoided cost (‘NAC’) calculation includes only the necessary costs to discharge the UPSO does not automatically mean that the Czech Post does not use the same costs (e.g., for personnel, equipment including cars, databases, etc.) also for non-UPSO commercial activities. Therefore, the Commission has incorrectly applied the State aid rules and thereby infringed the TFEU. |
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2.

Second plea in law, alleging the Commission made a manifest error of assessment in concluding that the Czech Post allocates costs separately for universal postal service obligations (‘UPSO’) and non-UPSO (commercial) activities. However, the applicant is convinced that costs for the infrastructure investment and network operation are not proportionally shared between the service of general economic interest (‘SGEI’) and other commercial business activities of the Czech Post, as some of the same relevant costs within the UPSO (such as personnel, equipment including cars, databases, etc.) are in practice used also for non-UPSO commercial activities. The Commission’s conclusion that the net avoided cost (‘NAC’) calculation includes only the necessary costs to discharge the UPSO does not automatically mean that the Czech Post does not use the same costs (e.g., for personnel, equipment including cars, databases, etc.) also for non-UPSO commercial activities. Therefore, the Commission has incorrectly applied the State aid rules and thereby infringed the TFEU.

| 3. | Third plea in law, alleging that the Commission made a manifest error of assessment in completely disregarding or not addressing sufficiently certain objections of the applicant regarding the presence of Czech Post’s overcompensation, in particular that (i) the UPSO can be performed by private operators on the commercial basis without any aid; (ii) the depreciation periods for the purposes of entrustment period are completely unfounded; and (iii) there are wrong assumptions in the counterfactual scenario. Therefore, the Commission has incorrectly applied the State aid rules and thereby infringed the TFEU. |
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3.

Third plea in law, alleging that the Commission made a manifest error of assessment in completely disregarding or not addressing sufficiently certain objections of the applicant regarding the presence of Czech Post’s overcompensation, in particular that (i) the UPSO can be performed by private operators on the commercial basis without any aid; (ii) the depreciation periods for the purposes of entrustment period are completely unfounded; and (iii) there are wrong assumptions in the counterfactual scenario. Therefore, the Commission has incorrectly applied the State aid rules and thereby infringed the TFEU.

| 4. | Fourth plea in law, alleging that the Commission made a manifest error of assessment in concluding that the Czech Post’s cross-subsidization does not constitute State aid. However, according to the applicant, the Czech Post’s cross-subsidization constitutes a stand-alone incompatible State aid under Article 107(1) TFEU taking place already at least in the 2013-2017 period (but very likely even before), which the Commission should thus have thoroughly assessed in separate administrative proceedings, and not as an ancillary issue within the proceedings in case SA.55208 (2020/C) limited to the 2018-2022 period. However, the Commission wrongly concluded that this cross-subsidization does not constitute State aid at all. This conclusion is incorrect from both factual and legal perspective. In addition, it is in stark contrast of the established case law of the Commission as well as the Court of the Justice of the EU. Therefore, the Commission has incorrectly applied the State aid rules and thereby infringed the TFEU. |
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4.

Fourth plea in law, alleging that the Commission made a manifest error of assessment in concluding that the Czech Post’s cross-subsidization does not constitute State aid. However, according to the applicant, the Czech Post’s cross-subsidization constitutes a stand-alone incompatible State aid under Article 107(1) TFEU taking place already at least in the 2013-2017 period (but very likely even before), which the Commission should thus have thoroughly assessed in separate administrative proceedings, and not as an ancillary issue within the proceedings in case SA.55208 (2020/C) limited to the 2018-2022 period. However, the Commission wrongly concluded that this cross-subsidization does not constitute State aid at all. This conclusion is incorrect from both factual and legal perspective. In addition, it is in stark contrast of the established case law of the Commission as well as the Court of the Justice of the EU. Therefore, the Commission has incorrectly applied the State aid rules and thereby infringed the TFEU.

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