62002TO0358_EN
Parties
Grounds
Operative part
Parties
In Case T-358/02,
Deutsche Post AG,
established in Bonn (Germany),
DHL International Srl,
established in Rozzano (Italy),
represented by J. Sedemund and T. Lübbig, lawyers,
applicants,
v
Commission of the European Communities,
represented by V. Di Bucci, J. Flett and V. Kreuschitz, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by
Italian Republic,
represented initially by U. Leanza, and subsequently by I. Braguglia, acting as Agents, with an address for service in Luxembourg,
and by
Poste Italiane SpA,
established in Rome (Italy) represented by B. O’Connor, Solicitor, and A. Fratini, lawyer,
interveners,
APPLICATION for annulment of Commission Decision 2002/782/EC of 12 March 2002 on the aid granted by Italy to Poste Italiane SpA (formerly Ente Poste Italiane) (OJ 2002 L 282, p. 29),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
composed of J. Pirrung, President, V. Tiili, A.W.H. Meij, M Vilaras and N.J. Forwood, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Facts, procedure and forms of order sought by the parties
1. Between 1994 and 1999, Poste Italiane, a limited liability company governed by Italian law (the Italian postal operator), which had been continually recording losses, received from the Italian authorities State resources of a total of ITL 17 960 000 million (EUR 9 280 million) which served to offset those losses.
2. On 12 March 2002, the Commission, at the end of the procedure laid down in Article 88(2) EC, adopted Decision 2002/782/EC on the aid granted by Italy to Poste Italiane SpA (formerly Ente Poste Italiane) (OJ 2002 L 282, p. 29). In that decision, which was addressed to the Italian Republic, the Commission held inter alia that payment of the abovementioned sum did not constitute State aid within the meaning of Article 87(1) EC (‘the contested decision’). In recital 128 in the preamble to the decision, the Commission stated that the Italian postal operator was only ‘marginally’ active outside the area of general economic interest services, and added, in recital 61, that that competitive activity represented around 10% of the Italian postal operator’s turnover. The Commission also stated that ‘[t]here was some competition in the postal sector in Italy’ and that ‘[i]n particular, express mail services, parcel services dedicated to business customers and logistical services have been developed in Italy by private undertakings, some of which are based in other Member States’ (recital 115). In that respect, footnote 40 states that ‘TNT and DHL can be cited as examples of foreign-controlled undertakings’.
3. The applicant companies – namely Deutsche Post, a limited company governed by German law (the German postal operator; ‘DP’) and DHL International, a limited liability company governed by Italian law (‘DHL’), in which DP has had a holding since 1998, and a majority holding since 2002 – are both active on the Italian market for postal services which have been opened up to competition. In respect of the competitive position of the companies affiliated to the Deutsche Post group, it should be pointed out that DHL operates on the Italian market in national and international express document and parcel delivery, that Deutsche Post Srl offers in Italy national and international parcel and logistical/storage services, that Deutsche Post Global Mail GmbH holds a licence to supply inter alia services in the collection, transportation, sorting and delivery of letters and parcels sector, and that Danzas Italia SpA offers land, air and sea integrated logistical services to the Italian market.
4. By application lodged at the Court Registry on 5 December 2002, the applicants brought the present action for annulment of the contested decision.
5. The applicants allege, in essence, that the Commission has infringed the general prohibition of discrimination, since it has accorded the Italian postal operator preferential treatment by approving the aid granted by the Italian authorities, whereas similar aid granted by the German authorities to DP was declared incompatible with the common market by Commission Decision 2002/753/EC of 19 June 2002 on measures implemented by the Federal Republic of Germany for Deutsche Post AG (OJ 2002 L 247, p. 27; ‘the decision relating to DP’).
6. By document lodged at the Court Registry on 22 January 2003, the Commission raised an objection of inadmissibility and pointed out that there was a fundamental difference between the procedure relating to DP and that relating to the Italian postal operator.
7. By document lodged at the Court Registry on 7 March 2003, the applicants submitted their observations on that objection.
8. By order of the President of the Second Chamber, Extended Composition, of 26 June 2003, the Italian Republic and the Italian postal operator were given leave to intervene in these proceedings in support of the forms of order sought by the Commission. By documents lodged on 8 and 5 September 2003 respectively, they expressed their views on the objection of inadmissibility. On 26 and 27 November 2003 respectively, the applicants and the Commission lodged their observations on the document submitted by the Italian postal operator.
9. The Commission, the Italian Republic and the Italian postal operator contend that the Court should:
– dismiss the application as inadmissible;
– order the applicants to pay the costs.
10. The applicants claim that the Court should:
– dismiss the objection of inadmissibility;
– in the alternative, reserve its decision on the objection for the final judgment;
– annul the contested decision;
– order the Commission to pay the costs.
Law
11. In support of its objection, the Commission raises two pleas of inadmissibility. First, the contested decision, which was addressed to the Italian Republic, does not concern the applicants individually within the meaning of the fourth paragraph of Article 230 EC. Secondly, the applicants cannot show a legal interest in bringing proceedings.
12. Under Article 114(1) of the Rules of Procedure of the Court of First Instance, if one of the parties so requires, the Court will rule on inadmissibility without going to the substance of the case. Under Article 114(3), the remainder of the proceedings shall be oral, unless the Court otherwise decides. In the present case, the Court of First Instance considers that it has sufficient information from the documents before it and that there is no need to open the oral procedure.
13. In that regard, it is necessary to consider, first, whether the applicants are individually concerned by the contested decision.
Arguments of the parties
14. The Commission points out that neither DP nor DHL participated in the administrative procedure which preceded the adoption of the contested decision. The Commission draws the conclusion that the applicants are concerned by the decision in the same way as all the other undertakings which compete with the Italian postal operator on one or other of the markets in question. In that regard, the Commission states that the applicants are concerned by the contested decision in their capacity as undertakings carrying out their activity in the express services sector, that is to say, a commercial activity which may be performed at any time by any other person and which therefore does not make it possible to distinguish them.
15. In that connection, the Commission refers to recitals 32 and 39 in the preamble to the contested decision, according to which the Italian postal operator was responsible not only for providing postal services but also for collecting post office savings and providing a payment system; it was also allowed to provide in open competition other postal, telecommunication, financial, insurance and distribution services. The applicants themselves state that several undertakings in their group compete with the Italian postal operator or with undertakings in its group in various sectors, such as express postal services and distribution of parcels to business clients in Italy.
16. According to the Commission, the Italian postal operator has several other competitors in those sectors. On the postal services market they are, in particular, TNT (controlled by the Netherlands postal operator), Consigna (controlled by the British postal operator), United Parcel Service (UPS), Rinaldi, Swiss Post Italy (SPI), IMX, Mail Express and Easy Mail. The Commission notes that the Italian postal operator and the other undertakings in its group also offer banking, insurance and telecommunication services, and points out that a large number of other operators are active on all of those markets, where there is keen competition. Consequently, it can hardly be considered that all those competitors of the Italian postal operator are entitled, without having participated in the administrative procedure, to bring an action against a decision in respect of the aid granted to the Italian postal operator.
17. The Commission adds that it adopted the contested decision at the end of the formal investigation procedure, so that interested third parties enjoyed the procedural safeguards provided for in Article 88(2) EC. The Commission submits that only if it refused to open that procedure would the applicants be individualised within the meaning of the fourth paragraph of Article 230 EC. Consequently, the applicants cannot be regarded, merely because they are interested third parties, as individually concerned by the contested decision. If the applicants had the standing to bring this action, even though they did not participate in the administrative procedure, they would submit to the Court observations in reality concerning an administrative procedure before the Commission.
18. In its statement in intervention, the Italian postal operator considers that the view expressed by the applicants fails to have regard to the economic situation on which the contested decision is based. The structure and development of the Italian express postal services market show, for the period in question, that the applicants’ position is wholly identical to that of many other operators on the market. It is also clear that the measures adopted by the Italian State in favour of the Italian postal operator have had no effect on the applicants’ competitive position.
19. The Italian postal operator points out that express postal services constitute one market in the broad postal services sector. Its turnover on that particular market represents between 2 and 3% of its turnover on its trading operations in areas open to competition. Between 1994 and 1999, its average total turnover was over EUR 5 500 million, whereas its turnover on the express postal services market was only between EUR 15 and 36 million for the years 1994 to 1998 (in 1999 its turnover was EUR 125 million, at group level, owing to the takeover of SDA).
20. The Italian postal operator concludes that the applicants cannot claim to be individually concerned, since they cannot be distinguished from the rest of its current or potential competitors on each of the 30 or so relevant markets on which it operates. Its submits that if the applicants’ arguments are accepted, each of the Italian postal operator’s competitors belonging to the ‘leading group’ of any market on which that postal operator is active should be regarded as individually concerned. Paradoxically, the result in the present case is that 200 undertakings would have locus standi on the ground that they were in a competitive relationship with the Italian postal operator, which is comparable to the competitive relationship raised by DP in support of its action.
21. Furthermore, it continues, even if the examination were restricted to the Italian express postal services market, the applicants’ position on that market does not support the conclusion that they are individually concerned as opposed to all the other competitors. The applicants have neither proved that they suffered actual and certain damage as a consequence of the payment of the disputed aid nor established a direct link between that aid and the damage possibly suffered. Quite the contrary, they have increased their market shares and recorded a percentage growth higher not only than that of the market but also than that of the Poste Italiane group.
22. The applicants counter by saying that the Commission’s argument fails to have regard to the structure of the various markets on which the Italian postal operator is active. By that argument, the Commission shows that it has not taken the trouble to define the relevant markets with precision and has not considered the specific repercussions of the disputed aid on competition.
23. Reiterating that they were in competition with the Italian postal operator primarily in the liberalised express parcel transport market, the applicants point out that, until 1998, the Italian postal operator had a 5% share of that market, which it was able to increase substantially by acquiring the private express parcel company, SDA. Thus, the market shares of the various undertakings operating in Italy in 1998 were as follows: TNT (Netherlands postal operator): 21%, UPS: 15%, SDA: 9%, DHL: 8%, Executive: 8%, Postacelere (Italian postal operator): 5%. The number of undertakings active on the Italian express postal package market was therefore limited, at that time, to a ‘leading group’, easy to distinguish, of three foreign companies (TNT, DHL and UPS) which were in competition with the Italian postal operator and SDA; SDA is now an integrated subsidiary of the Italian postal operator and Executive was bought by the British postal operator in 2000. The Commission’s claim that it was a commercial activity which ‘anyone could carry on at any time’ is therefore based on a failure to have regard to the true economic situation.
24. Moreover, the contested decision is itself based on a clear separation of each of the activities of the Italian postal operator. In recitals 116 and 117 in the preamble to the decision, the Commission examines the activities of the Italian postal operator in the financial and banking sector and finds that the Italian postal operator was competing with a number of national and foreign banks and financial institutions; in that context, the Commission does not name any competitors in particular. In recital 115, on the other hand, the Commission considers the services on the Italian postal market which have been liberalised in the meantime, namely express mail services, parcel services dedicated to business customers and logistical services, which have been developed by private undertakings.
25. In that regard, the Commission expressly referred to the fact that ‘some’ of those undertakings ‘are based in other Member States’. In footnote 40, which refers to recital 115 of the contested decision, TNT and DHL are even expressly named as ‘foreign-controlled companies’. The Commission therefore referred specifically to the situation of some leading competitors on the Italian market, namely the companies TNT and DHL.
26. The applicants maintain that this description of the competitive situation is also the same as the one which emerges from the Italian competition authority’s previous practice in taking decisions. They refer in that regard to the authority’s decisions of 10 July 1998, 8 February 2001 and 20 December 2002. The last- mentioned decision mentions only the following undertakings as operators on the express services market (indicating their respective market shares in 2001): Bartolini: 22.4%, Italian postal service/SDA: 21.9%, TNT: 18.5%, Executive: 13.1%, DHL: 6.6%, UPS: 3.6%, Rinaldo Rinaldi: 2.9%.
27. The Italian postal service has a 20% shareholding in Bartolini and there is a strategic partnership between Bartolini and SDA. Market conditions are therefore stable in the sense that, for over four years, the Italian competition authority identified a group – which could be clearly differentiated and distinguished – of undertakings as competitors on the Italian express postal services market. DHL is named in all three decisions as a significant competitor of the Italian postal operator.
28. The applicants submit that the Commission cannot object to the fact that, in the present legal proceedings, they rely on evidence which, according to the Commission, they should have adduced during the administrative procedure. The main pleas in law raised in the present case relate specifically to the differences between the contested decision and the decision in respect of DP. However, the latter decision was given three months after the decision challenged in the present case, so that the applicants could not have raised, during the administrative procedure which culminated in the contested decision, the pleas it has put forward before the Court.
29. In reply to the statement in intervention submitted by the Italian postal operator, the applicants state that, to establish locus standi, they do not need to formulate a detailed complaint in respect of each of the markets to which the contested decision refers. They are challenging the contested decision only in so far as it refers to the express mail services market. On that market, they belong to a ‘leading group’, easy to distinguish, of three foreign undertakings. In any event, the fact that the Italian postal operator enjoys a unilateral benefit undoubtedly has an effect on the market of that favoured undertaking’s direct competitor, namely DHL. The applicants’ continued growth on the market in question does not therefore preclude their having locus standi.
30. Finally, the parties question the relevance to the result of this case of, inter alia, the judgments in Case T-442/93 AAC and Others v Commission
[1995] ECR II‑1329, Case T-435/93 ASPEC and Others v Commission
[1995] ECR II-1281, Case T-266/94 Skibsværftsforeningen and Others v Commission
[1996] ECR II‑1399, Case T-149/95 Ducros v Commission
[1997] ECR II- 2031, Case T-11/95 BP Chemicals v Commission
[1998] ECR II-3235, and Case T-114/00 Aktionsgemeinschaft Recht und Eigentum v Commission
[2002] ECR II-5121.
Findings of the Court
31. Since the applicants are not the addressees of the contested decision, this action for annulment cannot be declared admissible under the fourth paragraph of Article 230 EC unless the decision concerns them directly and individually.
32. As regards the question whether the applicants are directly concerned, it need only be pointed out that, since the contested decision declares that certain payments do not constitute State aid, it is of direct concern to the applicants (see by analogy Ducros v Commission, paragraph 32).
33. As regards the matter of whether the applicants are individually concerned, it is settled law that persons other than the addressees of a decision cannot claim to be individually concerned unless they are affected by that decision by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguished individually just as in the case of the person addressed (Case 25/62 Plaumann
v Commission
[1963] ECR 95, 107, and BP Chemicals v Commission, paragraph 71).
34. Since the contested decision was adopted at the end of the formal investigation procedure laid down by Article 88(2) EC, it should be pointed out that it is also apparent from the case-law that such a decision is of individual concern to undertakings if they are at the origin of the complaint which leads to the opening of the investigation procedure, if their views are heard during that procedure and if the conduct of the procedure is determined by their observations, provided, however, that their position on the market is significantly affected by the aid which is the subject of the contested decision (Case 169/84 COFAZ and Others v Commission
[1986] ECR 391, paragraphs 24 and 25, and BP Chemicals v Commission, paragraph 72).
35. In the present case, the conditions laid down by that case-law are not satisfied, since none of the applicants initiated the administrative procedure before the Commission or lodged observations in connection with that procedure which might have determined its conduct.
36. The fact remains that, even if an undertaking has not played an active role in the administrative procedure before the Commission, it may demonstrate by other means that it is individually concerned ( BP Chemicals
v Commission, paragraph 72, and the case-law cited therein) but it must in any case show that the measure approved by the decision is capable of significantly affecting its position on the market in question.
37. The mere fact that the decision in question may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that decision does not constitute that significant effect (see to that effect Joined Cases 10/68 and 18/68 Eridania and Others v Commission
[1969] ECR 459, paragraph 7). An undertaking cannot therefore rely solely on its status as a competitor of the undertaking to which the measure in question applies but must additionally show the magnitude of the prejudice to its position on the market (see to that effect Case C-106/98 P Comité d’entreprise de la Société française de production and Others
v Commission [2000] ECR I-3659, paragraphs 40 and 41).
38. As regards the present case, it must be stated that the applicants have not adduced any evidence to show the particularity of the competitive situation on the Italian postal market of Deutsche Post Srl, Deutsche Post Global Mail GmbH and Danzas Italia SpA, members of the Deutsche Post group.
39. As for the applicant DHL, the fact that it was referred to by name in footnote 40 of the contested decision is not enough to establish that its competitive position has been significantly affected. In that passage, the Commission merely states that there was ‘some competition’ in the postal sector in Italy, adding that some services had ‘been developed in Italy by private undertakings, some of which are based in other Member States’; it was in that context that the Commission maintained that ‘TNT and DHL [could] be cited as examples of foreign-controlled undertakings’. There is nothing in that passage to support the conclusion that DHL’s position on the market is significantly affected by the measures enjoyed by the Italian postal operator and approved by the contested decision.
40. The applicants maintain, however, that DHL belongs to a ‘leading group’ of three foreign undertakings which compete with the Italian postal operator on the Italian express mail transport market. They are seeking to establish the individuality of DHL’s position by pointing out that its market share was 8% in 1998 and 6.6% in 2001, as against the respective market shares of 14% and 21.9% held by the Italian postal operator (including through its shareholding in SDA).
41. However, as the Italian postal operator has rightly pointed out, there were several other operators on the market, some of which had higher market shares than DHL, namely TNT (21% in 1998 and 18.5% in 2001), UPS (15% in 1998), Executive (8% in 1998 and 13.1% in 2001), and Bartolini (22.4% in 2001). Furthermore, the applicants have used the same figures when referring to the market shares of other undertakings (see paragraphs 23 and 26 above). Those figures do not, as such, establish that DHL’s competitive position, compared with that of the Italian postal operator’s other competitors, was significantly affected by the contested decision.
42. It should be added that the Italian postal operator has submitted data relating to the development of the Italian express mail services market, which shows that, between 1994 and 1999, DHL had an annual growth rate (23.9%), which was higher than the market growth rate (12.1%) and that, from 1998 to 2001, DHL increased its turnover and its market share and achieved an annual growth rate (20.3%) higher than the market growth rate (11.6%), and even higher than the rate achieved by the Poste Italiane group after taking over SDA (17.7%).
43. In reply to those specific and targeted arguments concerning DHL’s position, the applicants have merely argued, in general terms, that ‘[t]he fact that a direct competitor enjoys a unilateral benefit undoubtedly has an effect on the market of that favoured undertaking’s direct competitor’. They have added that their continued growth on the market ‘did not preclude their standing to bring proceedings, but only emphasise[d] the special position which they occup[ied] on the market and the fact that they consequently had locus standi to challenge measures which the Italian State ha[d] adopted in favour of a competitor and which ha[d] caused distortion of competition’. However, the applicants have not even adduced concrete evidence to show that DHL’s competitive position would have been significantly improved if the measures in question had not been approved.
44. In those circumstances, the applicants have not managed to establish that the measures approved by the contested decision were likely to have a significant effect on their position on the market in question. In that regard, it was not enough that those measures – as is the case with any financial measure which unilaterally favours a single undertaking – might have some influence on the competitive relationships existing on that market.
45. This conclusion does not contradict the reasoning of the Court in Ducros v Commission, which had led it to declare admissible an action which, according to the applicants, had been brought in circumstances similar to those of the present case. Unlike DP and DHL, Ducros had lodged a complaint against aid granted to a competitor and had been the sole undertaking to participate in the administrative procedure (paragraph 35 of that judgment). Furthermore, a particular feature of the market in question in that case was that the market shares of the undertakings concerned were difficult to quantify (paragraph 38 of the judgment). Finally, the complaint and subsequent action lodged by Ducros had been prompted by the fact that Ducros and the recipient of the aid in question participated in the same tender procedure for a public-works contract and that that contract had been awarded to the recipient of that aid and not to Ducros; the public-works contract in question was of considerable importance to Ducros because it represented a considerable part of its annual turnover (paragraphs 4, 5 and 39 of the judgment). Those specific features, which distinguished Ducros, are lacking with respect to the applicants in the present case.
46. Since the contested decision was adopted at the end of the formal investigation procedure laid down by Article 88(2) EC, the applicants’ reference to Aktionsgemeinschaft Recht und Eigentum v Commission, paragraphs 53 and 54 – according to which an action brought by an association is admissible only if some of its members are direct competitors of the beneficiary of the aid at issue – is irrelevant, since the decision in question in that case had been adopted at the end of a purely preliminary investigation. In the present case, the applicants cannot therefore place any reliance on a precedent according to which, when the Commission, without opening the formal investigation procedure, finds, during the course of a preliminary investigation, that State aid is compatible with the common market, the parties concerned within the meaning of Article 88(2) EC, who are entitled to the guarantees of the formal investigation procedure if it is applied, must be regarded as individually concerned by the decision which gives effect to that finding ( BP Chemicals v Commission, paragraphs 82 and 89).
47. In any event, the applicants have not been deprived of their procedural rights under Article 88(2) EC, since the Commission duly invited the parties concerned to submit their observations in the course of the formal investigation procedure. However, in spite of the two invitations published for that purpose in the Official Journal of the European Communities
of 27 November 1998 (OJ 1998 C 367, p. 5) and 3 February 1999 (OJ 1999 C 28, p. 5), the applicants failed to participate in that procedure. Finally, the fact that the applicants are parties concerned within the meaning of the aforementioned provision is not enough in itself to distinguish them individually just as in the case of the addressee of the contested decision ( BP Chemicals v Commission, paragraph 73).
48. It is apparent from the foregoing that the applicants have not managed to show that they are individually concerned by the contested decision, that is to say that the decision affects them in a manner which differentiates them from other economic operators, as if they were addressees of that decision.
49. Consequently, the action must be dismissed as inadmissible, without it being necessary to consider whether the applicants show a legitimate interest in bringing proceedings.
Costs
50. Under Article 87(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must, in addition to their own costs, be ordered to pay those of the Commission, as the latter has pleaded. Since the Italian postal operator has asked for the costs of its intervention to be awarded against the applicants, the applicants must also be ordered to pay the costs incurred by that intervener.
51. Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene in proceedings are to bear their own costs. The Italian Republic must therefore bear its own costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicants are ordered to bear their own costs as well as those incurred by the Commission of the European Communities and Poste Italiane SpA. The Italian Republic shall bear its own costs.
Luxembourg, 27 May 2004.