62007TJ0421_EN
Parties
Grounds
Operative part
Parties
In Case T‑421/07,
Deutsche Post AG, established in Bonn (Germany), represented by J. Sedemund and T. Lübbig, lawyers,
applicant,
v
European Commission,
represented initially by N. Khan and B. Martenczuk, and subsequently by Martenczuk and D. Grespan, acting as Agents,
defendant,
supported by
UPS Europe NV/SA,
established in Brussels (Belgium),
and
UPS Deutschland Inc. & Co. OHG, established in Neuss (Germany),
represented by T. Ottervanger and E. Henny, lawyers,
interveners,
APPLICATION for annulment of the Commission decision of 12 September 2007 to initiate the procedure laid down in Article 88 (2) [EC] in respect of State aid granted by the Federal Republic of Germany to Deutsche Post AG (C 36/07 (ex NN 25/07)),
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot, President, M.E. Martins Ribeiro and H. Kanninen (Rapporteur), Judges,
Registrar: T. Weiler, Administrator,
having regard to the written procedure and further to the hearing on 9 June 2011,
gives the following
Judgment
Grounds
Background to the dispute
1. On 8 June 1989, the Federal Republic of Germany adopted the Postverfassungsgesetz (the Law on the organisation of the post) (BGBl. 1989, part I, p. 1026, ‘the PostVerfG’). Pursuant to Paragraph 1(2) of the PostVerfG, the German postal administration, the Deutsche Bundespost, was divided into three distinct legal entities, namely Deutsche Bundespost Postdienst, Deutsche Bundespost Telekom, and Deutsche Bundespost Postbank (respectively, ‘DB‑Postdienst’, ‘DB-Telekom’ and ‘DB-Postbank’). According to Paragraph 65(2) of the PostverfG, those successor entities were to maintain the services previously offered by Deutsche Bundespost. Accordingly, DB-Telekom came to take over the telecommunications activities of Deutsche Bundespost, while DB‑Postdienst took over the activities in the postal sector, including the universal postal service.
2. On 14 September 1994, the Federal Republic of Germany adopted the Postumwandlungsgesetz (the Law on the reorganisation of the post) (BGBl. 1994, part I, p. 2339, ‘the PostUmwG’). In accordance with Paragraphs 1 and 2 of the PostUmwG, the three legal entities mentioned above were converted into public limited companies as from 1 January 1995. The activities of DB-Postdienst were taken over by the applicant, Deutsche Post AG. The activities of DB-Telekom and those of DB-Postbank were taken over, respectively, by Deutsche Telekom AG and Deutsche Postbank AG.
3. On 7 July 1994, the private parcel delivery company, UPS Europe NV/SA (‘UPS Europe’) brought a complaint (‘the 1994 complaint’) before the Commission of the European Communities against DB-Postdienst, based on Article 86 of the EC Treaty (now Article 82 EC) and Article 92 of the EC Treaty (now Article 87 EC). That complaint was followed by another complaint brought in 1997 by the association of private providers of messenger services and express mail and parcel delivery services, the Bundesverband Internationaler Express- und Kurierdienste e.V. (‘BIEK’).
4. In essence, UPS Europe and BIEK accused DB‑Postdienst of abusing its dominant position by applying a policy of selling below cost in the door-to-door parcel delivery sector which was open to competition, financed through income generated in the mail delivery sector (or letters post), in which it enjoyed a legal monopoly (the ‘reserved sector’), or through aid contrary to Article 87 EC.
5. By letter dated 17 August 1999, published in the Official Journal of the European Communities on 23 October 1999 (OJ 1999 C 306, p. 25), the Commission informed the Federal Republic of Germany of its decision to initiate the formal investigation procedure laid down in Article 88(2) EC with regard to various measures under which the appellant had received public funds (‘the 1999 decision to initiate the procedure’) and asked it to provide a number of documents and information.
6. On 20 March 2001, the Commission adopted Decision 2001/354/EC relating to a proceeding under Article 82 of the EC Treaty (Case COMP/35.141 – Deutsche Post AG) (OJ 2001 L 125, p. 27). It concluded that the applicant had abused its dominant position in the business-to-customer services sector, by making, from 1974 to 2000, the granting of fidelity rebates to its customers subject to those customers agreeing to grant all or a majority of their parcels to it and by pursuing, from 1990 to 1995, a policy of selling below cost.
7. On 19 June 2002, the Commission adopted Decision 2002/753/EC on measures implemented by the Federal Republic of Germany for the applicant (OJ 2002 L 247, p. 27, ‘the 2002 decision’).
8. The reasoning in the 2002 decision is presented, in essence, in four stages.
9. The Commission first pointed out that, in the 1999 decision to initiate the procedure, it had expressed the belief that the amount of compensation DB‑Postdienst and, at a later stage, the applicant received for their mandate of services of general economic interest had exceeded the specific net additional costs generated by that mandate, and thus expressed its intention to investigate five possible aid measures. Included in those measures were, first, State guarantees pursuant to which the Federal Republic of Germany would guarantee debts incurred by Deutsche Bundespost before its transformation into three joint stock companies – (the ‘State guarantees’), secondly, the existence of public funding of pensions of employees of DB-Postdienst and of the applicant, and, thirdly, possible State aid to the applicant (recitals 2, 4, 5 and 7 of the 2002 decision).
10. Next, the Commission set out the observations of the Federal Republic of Germany on the five alleged aid measures which were the subject of the 1999 decision to initiate the procedure. As regards financial aid from the State, it indicated that the Federal Republic of Germany had accepted that DB-Postdienst and the applicant had benefited from two public transfers, consisting of the grant of transfer payments made from 1990 to 1994 by DB-Telekom on the basis of Paragraph 37(3) of the PostVerfG, and of the waiver by DB-Telekom on 1 January 1995, of a debt against the applicant (‘the transfer payments made by DB‑Telekom’) on the basis of Paragraph 7 of the PostUmwG. The Commission stated that the German Government did not deny that those transfers were attributable to the State, but claimed however that they were indispensable to the applicant performing its mandate of services of general economic interest (recitals 16 to 20 of the 2002 decision).
11. Finally, the Commission stated that ‘in line with the complaints lodged by UPS [Europe] and BIEK, the [2002 decision] [was] concern[ed] with the coverage of costs in providing door-to-door parcel services open to competition’, the Commission’s investigation having mainly to focus on the applicant’s cost coverage in the two major door-to-door parcel services open to competition: the delivery service for parcels sent between business customers and door-to-door delivery service for mail-order companies (recital 21 of the 2002 decision).
12. In the second stage, the Commission stated that the Federal Republic of Germany had informed it that between 1990 and 1998 the applicant had registered profits in the reserved sector and losses in the sectors open to competition, registering an overall deficit, taking account of all sectors. It deduced from this that any deficit in the parcel sector could not be compensated for by profits in either the reserved sector or by revenue received by the sectors open to competition (recitals 66 to 69 and footnote on page 107 of the 2002 decision).
13. In the third stage, the Commission stated that the applicant’s losses in the parcel sector during the period from 1990 to 1998 had to be necessarily covered by means of public resources and it decided to investigate whether they were linked to its mandate of services in the general interest, pointing out that the applicant would derive an advantage within the meaning of Article 87(1) EC if they were not (recital 72 of the 2002 decision).
14. In that regard, the Commission stated that, from 1 February 1994, under Paragraph 2(2)(3) of the Postdienst-Pflichtleistungsverordnung (Postdienst Mandatory Services Ordinance) (BGBl. 1994 I, p. 86), the applicant was given the opportunity – but was not placed under the obligation – in the parcel sector to grant rebates to customers which resulted in prices below the uniform tariff laid down in Paragraph 1(1) of the Ordinance. It stated that, taking account of the rebates applied, from 1994 to 1999 the income was insufficient to cover the operating costs, which caused a deficit of DEM 1 118.7 million without a causal link with any mandate of services of general economic interest (recitals 75 to 79, 82, 86 and 88 of the 2002 decision).
15. Next, the Commission pointed out, firstly, that the resources used for the public financing of pensions fell within the control of the Federal Republic of Germany, secondly, as regards the State guarantees, that the Federal Republic of Germany directly exercised control over the debt instruments issued by the applicant and, thirdly, as regards the Federal Republic of Germany’s financial aid for the applicant, that the transfer payments made by DB-Telekom were attributable to that Member State (recitals 92 to 94 of the 2002 decision).
16. The Commission observed that without the transfer payments made by DB‑Telekom, the Federal Republic of Germany would have had to have recourse to general budget resources in order to support DB-Postdienst and the applicant (recital 95 of the 2002 decision).
17. Next, the Commission found the existence of a distortion of competition and of an effect on trade between Member States. It also found that the aid received was incompatible with the common market, in so far as it was not justified under Article 87(2) and (3) EC and that the net additional costs of DEM 1 118.7 million in the parcel sector could not be regarded as resulting from the obligation to operate services in the general interest within the meaning of Article 86(2) EC, (recitals 96 to 106 of the 2002 decision).
18. In the fourth stage, the Commission found that, to the extent that it reduced the costs normally inherent in the provision of door-to-door parcel services, compensation by the Federal Republic of Germany for the additional costs of a rebate policy constituted an advantage within the meaning of Article 87(1) EC and an aid incompatible with the common market amounting to EUR 572 million (recital 107 of the 2002 decision).
19. The operative part of Decision 2002/372 is worded as follows:
‘Article 1
The State aid totalling EUR 572 million (DEM 1 118.7 million) which [the Federal Republic of Germany] has granted to [the applicant] is incompatible with the common market.
Article 2
1. [The Federal Republic of Germany] shall take the necessary steps to recover from [the applicant] the aid referred to in Article 1, which was granted unlawfully.
…’.
20. By its judgment in Case T‑266/02 Deutsche Post
v Commission [2008] ECR II‑1233, the General Court annulled the 2002 decision. The appeal brought by the Commission against that judgment was dismissed by the judgment of the Court of Justice in Case C‑399/08 P Commission
v Deutsche Post [2010] ECR I-0000.
21. On 22 April 2004, UPS Europe lodged a complaint with the Commission on the basis of Article 82 EC, claiming that the applicant’s tariffs in the reserved sector were abusive. The Commission initiated an investigation in that regard in which it received some documents relating to decisions of the German authorities concerning those tariffs.
22. On 11 May 2004, UPS Europe lodged a new complaint with the Commission claiming that, in the 2002 decision, it had not examined all of the public measures mentioned in the 1994 complaint and that the advantages which the applicant received exceeded to a large extent the amount which the Commission had ordered to be recovered. In turn, on 16 July 2004, TNT Post AG & Co KG lodged a complaint alleging that the tariffs of the services invoiced by the applicant to its subsidiary, DB-PostBank, were excessively low and that those services were financed by means of income from the reserved sector. Following those complaints, the Commission sent requests for information to the Federal Republic of Germany to which the latter responded.
23. By letter dated 4 April 2006, the Commission informed UPS Europe that there was not a sufficient Community interest to act on its complaint lodged on the basis of Article 82 EC.
24. On 26 April 2007, UPS Europe formally requested the Commission to take the appropriate steps regarding its complaint of 11 May 2004.
25. By letter dated 13 June 2007, the Federal Republic of Germany consented to the information provided to the Commission in the investigation initiated following UPS Europe’s complaint of 22 April 2004 being used in State aid proceedings.
26. On 3 September 2007, UPS Europe and UPS Deutschland Inc. & Co. OHG (together ‘UPS’) brought an action before the General Court, under Article 232 EC, seeking a declaration that the Commission had unlawfully failed to act by not adopting a decision on the complaint lodged on 11 May 2004 (Case T‑329/07 UPS Europe and UPS Deutschland
v Commission ).
27. By letter dated 12 September 2007, the Commission informed the Federal Republic of Germany of its decision to initiate the procedure laid down in Article 88(2) EC in respect of State aid granted by the German authorities to Deutsche Post AG (aid C 36/07 (ex NN 25/07)) (‘the contested act’). The contested act was published in the Official Journal of the European Union
of 19 October 2007 (OJ 2007 C 245, p. 21) in the authentic language (German), preceded by a 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.
Operative part
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.