Judgment — ECLI:EU:T:2011:720
Date: 2011-12-08
Language of the case: German
Court formation: Eighth Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment - inadmissible
Origin: Germany

summary in the other official languages. 28 By letter lodged with the Registrar of the General Court on 8 November 2007, UPS withdrew its action in Case T‑329/07, paragraph 26 above. By order of the General Court of 11 December 2007, in Case T‑329/07 UPS Europe and UPS Deutschland v Commission, not published in the ECR, that case was removed from the register. 29 The contested act is divided into several sections. 30 In section 1 of the contested act, the Commission recalled the procedures initiated against the applicant pursuant to Articles 82 EC and 87 EC following the 1994 complaint. It referred to the need to carry out a comprehensive investigation into all of the distortions of competition which resulted from the public funds granted to the applicant and its predecessor and stated that the procedure initiated by the 1999 decision to initiate the procedure would be supplemented in order to incorporate the newly submitted information and to adopt a definitive position on the compatibility of those funds with the EC Treaty (recitals 1 to 15 of the contested act). 31 The Commission noted that the ‘supplementary investigation’ which it intended to carry out ‘w[ould] by no means substitute the 2002 [d]ecision’, which found that ‘State aid of EUR 572 million had been used to cross subsidise that business, but had left open the question of whether [the applicant and its predecessor] had been overcompensated [for providing services of general economic interest] through State resources’. The Commission explained that it intended, in its investigation, to determine whether there had been overcompensation beyond that EUR 572 million, and announced that it would investigate all public measures granted in favour of those undertakings from 1 July 1989, when DB-Postdienst was set up, to 31 December 2007, which is the presumed termination date of the applicant’s mandate of providing services of general economic interest (recital 15 of the contested act). 32 At section 3 of the contested act, entitled ‘Description of the State measures in favour of [DB-]Postdienst and [the applicant]’, firstly, the Commission stated, in essence, that DB-Postdienst and the applicant had benefited from transfer payments made by DB-Telekom as well as from State guarantees (recitals 25 to 31, 38 and 39 of the contested act). 33 Secondly, the Commission investigated the existence of public financing of pensions. As regards the period from 1989 to 1994, it stated that it had no information that DB-Postdienst had contributed to financing the pensions of its employees, which accordingly was assumed to have been the responsibility of the German State alone. For the period from 1995 to 1999, the applicant had paid an amount to the postal employees’ pension fund established on 1 January 1995 pursuant to Paragraph 16(1) of the Gesetz zum Personalrecht der Beschäftigen der Früheren Deutschen Bundespost (Postpersonalrechtsgesetz, Law on staff of the former Deutsche Bundespost of 14 September 1994, BGBl. 1994 I, p. 2325). The German State had covered the deficit of that fund. Finally, the amount of contributions paid by the applicant to that fund was reduced in 2000 to 33% of the currently employed civil servants’ net salaries, and, for the following years, the Commission had no precise information (recitals 40 to 48 of the contested act). 34 In section 6 of the contested act, entitled ‘Assessment of the existence of aid’, firstly, the Commission stated that any selective advantage granted to DB‑Postdienst and the applicant would distort competition and affect trade between Member States. Secondly, the Commission observed that the transfer payments made by DB-Telekom and the State guarantees constituted State aid within the meaning of Article 87(1) EC (recitals 72 to 75 of the contested act). Thirdly, it noted that the public financing of pensions constituted a transfer of public resources. It stated that, for the period from 1989 to 1995, ‘DB-Postdienst clearly had not contributed to the financing of any pension payments … [of its] civil servants …’ and that, for the period from 1995 to 1999 it ‘wondered whether the conditions under which the early retirements took place …, had granted [the applicant] an economic advantage’. In particular, the Commission stated that it intended to investigate to what extent the public financing for pensions ‘had been more advantageous [for the applicant] than … other undertakings …’, after pointing out that the Federal Republic of Germany had claimed that, since 1995, the applicant had ‘…higher pension costs than its competitors’ (recitals 76 to 78 of the contested act). 35 In section 7 of the contested act, entitled ‘Compatibility of the aid with the common market’, the Commission stated that it would investigate to what extent the compensation granted to the applicant and its predecessor was necessary to ensure the fulfilment of the universal service obligations which they had to support between 1989 and 31 December 2007 (recitals 80 and 81 of the contested act). The Commission set out the methodology of calculation which it intended to use in that respect as well as the income which it proposed to take into account (recitals 84 to 104 of the contested act). 36 In section 8 of the contested act, entitled ‘Decision’, the Commission requested the Federal Republic of Germany to ‘submit its comments within one month of receipt of the [contested act]’ and ‘to provide all necessary information for the legal assessment of the measures in the light of the provisions on state aid’. Procedure and forms of order sought by the parties 37 By application lodged at the Registry of the Court on 22 November 2007, the applicant brought the present action. 38 By letter lodged at the Registry of the Court on 29 February 2008, UPS requested leave to intervene in support of the form of order sought by the Commission. 39 By order of 9 July 2008 the President of the First Chamber of the General Court granted UPS’s application for leave to intervene. 40 As the composition of the Chambers of the General Court had been altered, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was therefore assigned. 41 Acting upon the report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure and put questions to the parties in the context of measures of organisation of the procedure under Article 64 of the Rules of Procedure of the General Court. The parties replied to those questions within the prescribed period. 42 The parties presented oral argument and replied to the questions put by the Court at the hearing on 9 June 2011. 43 The applicant claims that the General Court should: – annul the contested act; – order the Commission to pay the costs. 44 The Commission, supported by UPS, contends that the General Court should: – dismiss the application as inadmissible or, in the alternative, as unfounded; – order the applicant to pay the costs. Law 45 Without formally raising an objection of inadmissibility under Article 114 of the Rules of Procedure, the Commission, supported by UPS, contends that the application is inadmissible. 46 In support of its position, the Commission relies upon two main arguments. First, it claims in its defence that a decision to initiate the formal investigation procedure constitutes a challengeable act only if it concerns the question whether an aid must be considered to be new or existing. By contrast, that decision cannot be a challengeable act if it concerns the categorisation of a measure as State aid. Neither the applicant nor the Federal Republic of Germany claimed in due time that the measures investigated in the contested act were existing aid. 47 Second, the Commission claims, in its written response to a question raised by the General Court and at the hearing, that the adverse effects on the applicant that may result from the contested act had already been caused by the 1999 decision to initiate the procedure. According to the Commission, the subject-matter of that decision was all the measures provisionally categorised as new aid in the contested act. If that act were annulled, those measures would continue to be the subject-matter of a formal investigation procedure open since 1999. Therefore, the applicant has no legal interest in bringing proceedings in this case. 48 The applicant submits that the action is admissible. In that regard, it claims that the measures referred to in the contested act must be dealt with as existing aid given that they had already been the subject-matter of a procedure terminated in all aspects by the 2002 decision. Therefore, in so far as they are categorised as new aid in the contested act, the action is admissible. In the alternative, the applicant claims that the decision to initiate the procedure is challengeable as soon as the categorisation of a measure as aid is challenged. 49 According to settled case-law, only a measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision against which an action for annulment may be brought under Article 230 EC. More specifically, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review as a rule only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 9 and 10, and Case T‑64/89 Automec v Commission [1990] ECR II‑367, paragraph 42, and judgment of 25 March 2009 in Case T‑332/06 Alcoa Trasformazioni v Commission, not published in the ECR, paragraph 34). 50 As regards a decision to initiate the formal investigation procedure into State aid, it is however clear from the case-law that where the Commission classifies a measure in the course of implementation as new aid, such a decision entails independent legal effects, particularly in relation to the suspension of the measure under consideration (Case C‑400/99 Italy v Commission [2001] ECR I‑7303, paragraph 62; Joined Cases T‑346/99 to T‑348/99 Diputación Foral de Álava and Others v Commission [2002] ECR II‑4259, paragraph 33 and Alcoa Trasformazioni v Commission, paragraph 49 above, paragraph 34). That is plainly the case not only where a measure in the course of implementation is regarded by the authorities of the Member State concerned as existing aid, but also where the authorities take the view that the measure to be formally investigated does not fall within the scope of Article 87(1) EC (see, Alcoa Trasformazioni v Commission, paragraph 49 above, paragraph 35 and the case-law cited). 51 A decision to initiate the formal investigation procedure in relation to a measure in the course of implementation and classified by the Commission as new aid necessarily alters the legal implications of the measure under consideration and the legal position of the recipient firms, particularly as regards the continued implementation of the measure. Until the adoption of such a decision, the Member State, the recipient firms and other economic operators may think that the measure is being lawfully implemented as a general measure not falling within the scope of Article 87(1) EC or as existing aid. On the other hand, after its adoption there is at the very least a significant element of doubt as to the legality of the measure which, without prejudice to the possibility of seeking interim relief from the court, must lead the Member State to suspend its application, since the initiation of the formal investigation procedure excludes the possibility of an immediate decision that the measure is compatible with the common market, which would enable it to continue to be lawfully implemented. Such a decision might also be invoked before a national court called upon to draw all the consequences arising from infringement of the last sentence of Article 88(3) EC. Finally, it is capable of leading the firms which are beneficiaries of the measure to refuse in any event new payments or new advantages or to hold the necessary sums as provision for possible subsequent financial compensations. Businesses will also take account, in their relations with those beneficiaries, of the uncertainty cast on the legal and financial situation of the latter (see Diputación Foral de Álava v Commission, paragraph 50 above, paragraph 34 and Alcoa Trasformazioni v Commission, paragraph 49 above, paragraph 36). 52 It is apparent from the contested act that it was taken with the purpose of initiating the formal investigation procedure with regard to three measures, namely the transfer payments made by DB-Telekom, the State guarantees and the State financing of pensions (‘the measures at issue’). 53 As was stated at paragraph 34 above, in the contested act the Commission categorised the transfer payments made by DB-Telekom and the State guarantees as new State aid. As to the public financing of pensions, the Commission expressed its doubts on the question of the extent to which that financing had granted an economic advantage to the applicant (recitals 76 to 78 of the contested act). 54 According to the case-law cited at paragraphs 49 to 51 above, it is necessary to examine whether the contested act entailed independent legal effects against which actions may be brought. 55 To that end, it must be borne in mind that the contested act was preceded by a decision to initiate the formal investigation procedure, namely the 1999 decision to initiate the procedure. Therefore, it is necessary to investigate whether the legal effects allegedly resulting from the contested act had not, in any event, already been caused by the 1999 decision to initiate the procedure, as the Commission claims in its argument on the inadmissibility of the action (see paragraph 47 above). 56 It is not disputed by the parties that the formal investigation procedure initiated by the 1999 decision to initiate the procedure already concerned the measures at issue, which are, moreover, considered in the 2002 decision. 57 On that point it should be noted that the Commission stated at recital 37 of the 1999 decision to initiate the procedure that, according to UPS Europe and the BIEK, the applicant’s debts were, in accordance with Paragraph 40 of the PostVerfG, covered by a State guarantee limited, since 2 January 1995, to debts existing on that date. At recital 62 of the 1999 decision to initiate the procedure, the Commission stated that a preliminary examination of that measure did not lead to the conclusion that it did not constitute State aid. 58 Next, at recital 40 of the 1999 decision to initiate the procedure, the Commission stated that according to the BIEK, the Federal Republic of Germany had covered at its own cost the deficit of the postal pension fund, which constituted State support in favour of the applicant. At recital 65 of the 1999 decision to initiate the procedure, the Commission stated that the costs linked to the pensions of former employees of the applicant and its predecessor were supported by that fund and it noted that the Federal Republic of Germany had covered the large deficit in it. The Commission also noted that a preliminary examination of that measure did not lead to the conclusion that it did not constitute State aid. 59 Finally, at recital 63 of the 1999 decision to initiate the procedure, the Commission stated that the transfer by the State of immoveable property or other assets to the applicant had in principle to be considered as State aid, and, therefore, to be justified. At recital 80 of that decision, the Commission asked the German authorities to provide detailed information on State financial support granted to the applicant’s activities, citing, amongst other measures, any subsidies being beneficial to it, in so far as they are significant for the purposes of the EC Treaty provisions on State aid. 60 In response to the Commission’s request, the German authorities informed it in detail of the existence of the transfer payments made by DB-Telekom (see recitals 16 to 20 of the 2002 decision). The Commission stated in response to a question of the General Court that that information had been provided to it on 16 September 1999. The Federal Republic of Germany also notified the Commission of the observations on the question whether those transfers constituted State aid. 61 Accordingly, since (i) the contested act concerns the same measures as those which formed the subject-matter of the 1999 decision to initiate the procedure, (ii) in the context of that decision and the procedure which followed it, the Commission had already stated that the measures at issue could fall within the scope of the prohibition of Article 87(1) EC and (iii) the independent legal effects relating to that formal investigation procedure have, consequently, already been produced following that decision to initiate the procedure, the contested act is not capable of giving rise to such effects and cannot therefore constitute a decision against which an action for annulment may be brought. Following the 1999 decision to initiate the procedure, there was at least already a significant doubt as to the lawfulness of the measures at issue, since the initiation of that procedure excluded an immediate decision holding the measure compatible with the common market which would have enabled the lawful pursuit of those measures and the benefit of them. 62 The applicant claims however that the formal investigation procedure initiated with regard to the measures at issue by the 1999 decision to initiate the procedure had been closed in all aspects by the 2002 decision. The Commission, on the other hand, contends that that decision closed that procedure only in part. 63 It is necessary therefore to consider whether that procedure had been terminated as regards the measures at issue before the adoption of the contested act. 64 As provided in Article 7(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] EC (OJ 1999 L 83, p. 1), applicable to the procedure on illegal aid by virtue of Article 13(1) of that regulation, the formal investigation procedure is to be closed by means of a decision as provided for in paragraphs 2 to 5 of that same article (save in cases of withdrawal of the notification by the Member State concerned). 65 It is apparent from Article 7(2) to (5) of Regulation No 659/1999 that a decision closing the formal investigation procedure may have four different types of content, namely that the notified measure does not constitute aid (paragraph 2), that the measure is compatible with the common market (positive decision, paragraph 3), that it constitutes aid compatible with the common market in so far as some conditions and obligations are respected (conditional decision, paragraph 4), or, finally, that it is aid not compatible with the common market (negative decision, paragraph 5). 66 It follows from those provisions that the formal investigation procedure must be closed by a decision which expressly categorises the measure at issue under one of the provisions of Article 7(2) to (5) of Regulation No 659/1999. 67 However, it is apparent from the 2002 decision, in particular its recitals cited at paragraphs 9 to 16 above, that the Commission did not expressly categorise the measures at issue under those provisions beyond the EUR 572 million referred to in the operative part of the decision at issue. It merely stated, first, that those measures included a transfer of public resources in favour of the applicant and, second, that those resources must have been used to cover the deficit generated by the applicant’s policy of selling below cost in the parcel sector, quantified as DEM 1 118.7 million, equivalent to EUR 572 million, in so far as the applicant could not finance the deficit at issue by means of own resources. 68 At the hearing, the Commission accepted that the 2002 decision did not include explanations stating that it was a definitive decision in part concerning the measures at issue and that the formal investigation procedure remained open in part. According to the Commission, that decision must, however, be interpreted as a whole, its operative part being read in the light of its recitals. 69 In that regard, it should be noted that, as was stated at paragraph 11 above, the Commission pointed out, at recital 21 of the 2002 decision, that that decision dealt with covering the costs in the door-to-door parcel services sector open to competition. 70 In that recital, the Commission stated that the analysis which it had carried out in the 2002 decision to evaluate the compatibility of the measures at issue with the common market concerned the parcel sector only. Accordingly, at section II F of the 2002 decision, entitled ‘The infrastructure costs attributable to door-to-door parcel services’, the Commission analysed only any additional costs caused by a mandate to provide services of general economic interest in that sector. At section II G of the 2002 decision, entitled ‘The scope of the public service mission entrusted to [the applicant] in the parcels sector’ it did not examine the applicant’s other tasks of providing services of general economic interest. At section II H of the 2002 decision, entitled ‘The “historical burden” of [the applicant] as a former state-owned enterprise’, the Commission analysed just the impact in the parcel sector of the costs pleaded by the Federal Republic of Germany and the applicant. Section III of the 2002 decision, entitled ‘Comments from third parties’ primarily concerns comments from third parties with regard to the financial situation, the commercial conduct and costs and additional costs linked to a mandate of providing services of general economic interest of DB-Postdienst and the applicant in the parcel sector alone. 71 Similarly, in the 2002 decision, the Commission analysed the existence of an advantage for the applicant and DB-Postdienst as regards solely covering their losses in the parcel sector (recitals 66 to 91 of the 2002 decision). Only the questions of the existence of a distortion of competition, the effect on trade between Member States and the compatibility with the common market of that advantage were then examined (recitals 96 to 106 of the 2002 decision). 72 Finally, when the Commission held in the 2002 decision that a measure forming the subject-matter of the formal investigation procedure initiated in 1999 was not State aid, it did so expressly. 73 Indeed, the Commission stated at recital 64 of the 1999 decision initiating the procedure that a complainant had pleaded that the applicant had acquired part of Deutsche Postbank from the Federal Republic of Germany in 1998 by deducting from the sale price a non-existent debt with regard to the German State. The Commission found that an initial investigation of the conditions in which that acquisition had taken place did not lead to the conclusion that thereby the Federal Republic of Germany had not granted a State aid to the applicant. However, at recital 65 of the 2002 decision, the Commission stated that the acquisition of DB-Postbank by the applicant had not led to the grant of State aid. 74 It must therefore be noted that the Commission, in the 2002 decision, analysed the measures at issue only in so far as they concerned the financing of some of the applicant’s activities in the parcel sector. Therefore, it must be held that the Commission neither excluded, nor confirmed, in the 2002 decision, that those measures constituted State aid incompatible with the EC Treaty beyond the EUR 572 million referred to in the operative part of that decision. 75 It follows from the above that, when the contested act was adopted, the formal investigation procedure initiated in 1999 with regard to the measures at issue had not been closed by the 2002 decision beyond the EUR 572 million referred to in the operative part of the latter decision. 76 It is true that in the 2002 decision, the Commission could have explained more clearly the extent to which it closed the formal investigation initiated by the 1999 decision. However, that finding is not relevant to the analysis of the admissibility of the action. 77 The finding set out at paragraph 75 above is not called into question by Deutsche Post v Commission, paragraph 20 above, in which the General Court annulled the 2002 decision after the introduction of the action in the present case. In that judgment, the General Court did not rule on the question whether the formal investigation procedure initiated in 1999 with regard to the measures at issue had been closed. 78 Consequently, it must be held that, at the time of its adoption, the contested act neither altered the legal scope of the measures at issue nor the applicant’s legal situation. 79 It should be added that, according to settled case-law, the judgment in Deutsche Post v Commission, paragraph 20 above, took effect ex tunc and therefore had the effect of retroactively eliminating the 1992 decision from the legal system (see Case T‑171/99 Corus UK v Commission [2001] ECR II-2967, paragraph 50 and case-law cited). Therefore, that judgment can in no way affect the finding that the 2002 decision had no effect on the existence of any independent legal effects resulting from the contested act. 80 It follows from all the above that the contested decision does not constitute a decision that is open to challenge under Article 230 EC. Accordingly, the application must be dismissed as inadmissible. Costs 81 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 82 UPS shall bear its own costs pursuant to the third subparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action as inadmissible; 2. Orders Deutsche Post AG to bear its own costs and to pay those incurred by the European Commission; 3. Orders UPS Europe NV/SA and UPS Deutschland Inc. & Co. OHG to bear their own costs. Truchot Martins Ribeiro Kanninen Delivered in open court in Luxembourg on 8 December 2011. [Signatures] * Language of the case: German.