JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
15 October 2020 (*)
(State aid – Postal sector – Universal service obligation – Decision not to raise any objections – Safeguarding procedural rights – Duration of the procedure – Complete and sufficient examination of the case by the Commission – Compensation for the discharge of the universal service obligation – Service of general economic interest – Directive 97/67/EC – Net avoided cost methodology – Obligation to state reasons)
In Case T‑316/18,
První novinová společnost a.s., successor in law to Mediaservis s.
r.
o., established in Prague (Czech Republic), represented by D. Vosol and C. Schneider, lawyers,
applicant,
v
European Commission, represented by L. Flynn, D. Recchia and K. Blanck, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, J. Vláčil, T. Müller and I. Gavrilová, acting as Agents,
and by
Česká pošta s. p., established in Prague, represented by P. Kadlec, lawyer,
interveners,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2018) 753 final of 19 February 2018, State aid SA.45281 (2017/N) and State aid SA. 44859 (2016/FC), declaring that the compensations granted by the Czech Republic to Česká pošta for the performance of its postal activities under a universal service obligation for the period 2013 to 2017 constitute State aid compatible with the internal market, pursuant to Article 106(2) TFEU,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, V. Valančius (Rapporteur) and L. Truchot, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 23 January 2020,
gives the following
Judgment
Background to the dispute
1        By decision of 22 February 2013, the Český telekomunikační úřad’ (Czech Telecommunications Regulatory Authority) designated the second intervener, Česká pošta s. p., which is wholly owned by the first intervener, the Czech Republic, as the postal service provider under the universal service obligation (‘the USO’) until 31 December 2017.
2        By that decision, the second intervener was required, until that date, to ensure on a permanent basis universal accessibility to all basic postal services, such as inter alia those referred to in Article 3(4) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3) (‘the Postal Directive’).
3        In order to provide compensation for the costs generated by the discharge of the USO, the Czech Government initially envisaged granting the second intervener compensation in the form of a compensation fund for the years 2013 and 2014 and a direct subsidy for the years 2015 to 2017 (‘the initial compensation proposal’).
4        On 30 July 2015, the Czech authorities notified to the European Commission an aid proposal in the form of a direct subsidy, registered under case number SA.42756 (2015/N), for the discharge of the USO by the second intervener for the period 2015-2017.
5        On 18 and 25 September 2015, the Commission informed the Czech authorities of certain difficulties and requested additional information.
6        On 4 November 2015, the Czech authorities replied to the Commission and on 8 December 2015, a meeting took place between them.
7        On 16 December 2015, the Commission again informed the Czech authorities of certain concerns and requested additional information. In particular, it explained that it had doubts about the compatibility of the compensation fund for the years 2013 and 2014.
8        On 19 January 2016, the Czech authorities replied to the Commission’s questions.
9        On 11 March 2016, Mediaservis s.
r.
o., a private provider of postal services operating on the Czech territory, lodged a complaint with the Commission in which it claimed, inter alia, that the USO compensation provided for in favour of the second intervener constituted incompatible State aid (‘the complaint’). That complaint was registered under case number SA.44859 (2016/FC).
10      On 16 March 2016, the Commission requested additional information from the Czech authorities. Furthermore, it reiterated its doubts regarding the compensation fund for the years 2013 and 2014.
11      On 30 March 2016, the Commission forwarded the complaint to the Czech authorities.
12      On 27 April 2016, the Czech authorities sent their observations on the complaint to the Commission.
13      On 29 April 2016, the Czech authorities formally withdrew their notification of 30 July 2015.
14      On 29 April 2016, the Czech Republic also gave prior notification (pre-notification) of a direct subsidy for the years 2015 to 2017 (‘the first pre-notification’).
15      On 17 June 2016, the Commission held a meeting with Mediaservis, during which the issue of the exemption from value added tax (VAT) of certain services of the second intervener was inter alia discussed.
16      On 20 June 2016, Mediaservis sent the Commission observations supplementing the complaint.
17      On 22 June 2016, the Commission held a telephone meeting with the Czech authorities.
18      On 24 June 2016, the Commission sent by email to the Czech authorities a summary of the telephone meeting of 22 June 2016, setting out the issues which had been discussed.
19      As regards, first of all, the compensation fund, the Commission expressed its concerns relating to the lack of a clear definition of interchangeable services under Czech postal law, the probably very limited amount of
contributions that could be collected, the significant efforts needed to make the fund compatible and the litigation risks at both national and EU level, so that it invited the Czech authorities to abolish that fund, referring in a substantiated manner to a similar mechanism in Poland.
20      As regards, next, the alleged VAT exemptions, the Commission requested the Czech authorities to send it the earlier versions, from 2004 onwards, and the versions in force of the Czech VAT and postal laws, as well as additional clarifications concerning possible exemptions from VAT for services not covered by the USO
or under individually negotiated contracts.
21      Finally, as regards the direct subsidy for the years 2015 to 2017, the Commission took note of the launch of a tender to select a consultant to perform the calculation of the weighted average capital cost for the factual and counterfactual scenarios in the context of the calculation of the net avoided costs by non-performance of the USO (‘the NACs’) and invited the Czech authorities to provide it with an updated description of their method of calculating the NACs according to the model followed in the context of a decision relating to Poste Italiane adopted in 2015.
22      The Commission also invited the Czech authorities to draw up a list of all the services provided by the second intervener remunerated by the State, indicating whether these were services of general economic interest (SGEIs) or non-economic activities or whether they conferred no advantages, because they had been the subject of prior calls for tenders, while specifying that, if any remuneration for those services amounted to aid, it had to be compatible and that, in any event, there could be no overcompensation.
23      Further to the meeting of 22 June 2016 and the Commission’s email of 24 June 2016, on 1 July 2016 the Czech authorities sent the Commission additional information concerning the compensation fund and the alleged VAT exemptions.
24      On 11 July 2016, the Commission held a meeting with the Czech authorities during which it asked them for additional information concerning the NAC calculation and again expressed its concerns regarding the compensation fund.
25      On 27 July 2016, the Commission sent a letter to the Czech authorities in which it confirmed and substantiated its concerns, expressed in its summary of the meeting of 22 June 2016, regarding the compensation fund, in particular in the light of its Communication on the European Union framework for State aid in the form of public service compensation (OJ 2012 C 8, p. 15; ‘the 2012 SGEI Framework’) and of the Postal Directive.
26      On 31 August 2016, the Czech authorities sent information to the Commission in response to its requests for information concerning the method of calculating the NACs for the years 2013 to 2016 further to the meeting of 11 July 2016.
27      On 26 September 2016, Mediaservis sent the Commission observations supplementing the complaint.
28      On 15 October 2016, the Commission held a meeting with Mediaservis.
29      On 17 October 2016, further to the Commission’s letter of 27 July 2016 and a letter from the Commission of 8 August 2016, the Czech authorities sought to address the Commission’s concerns regarding the compensation fund by sending it Resolution No 894 of the Czech Government of 12 October 2016 on the non-application of the legal basis for the compensation fund.
30      On 31 October 2016, Mediaservis sent the Commission observations supplementing the complaint.
31      On 11 November 2016, the Commission held a telephone meeting with the Czech authorities concerning, inter alia, the calculation of the NACs for 2014.
32      On 18 November 2016, the Czech authorities submitted additional information to the Commission concerning the calculation of the NACs for 2014.
33      On 3 December 2016, the Czech authorities sent the Commission the calculations of the weighted average capital cost for the factual and counterfactual scenarios in the framework of the calculation of the NACs from 2013 to 2017 which were drawn up by a firm of independent consultants.
34      On 20 December 2016, the Czech authorities sent additional information to the Commission concerning the compensation fund, namely an explanatory memorandum setting out the reasons for Resolution No 894 of the Czech Government of 12 October 2016 for not applying the legal basis of the compensation fund.
35      On 30 January 2017, the Commission held a meeting with the Czech authorities.
36      On 13 February 2017, the Commission and the Czech authorities exchanged emails on the taking into account
of the calculations of the weighted average capital cost for the factual and counterfactual scenarios in the framework of the calculation of the NACs for the years 2013 to 2017.
37      On 24 February 2017, the Commission sent a further email to the Czech authorities, asking them to recalculate the NACs for the years 2013 to 2017 without taking into account any reasonable profit.
38      By Resolution No 219 of 22 March 2017, the Czech Government abolished the compensation fund for the second intervener in respect of the discharge of the USO for the years 2013 and 2014.
39      On 29 March 2017, the Commission sent a letter to Mediaservis. In that letter, the Commission expressed its preliminary position that there were no grounds for pursuing the case further.
The Commission also informed Mediaservis that it could make additional comments within a period of one month.
40      On 28 April 2017, Mediaservis submitted observations to the Commission supplementing the complaint concerning the direct subsidy for the years 2013 and 2014.
41      Further to their letter of 17 October 2016 and their meeting with the Commission of 11 November 2016, the Czech authorities informed the Commission on 4 May 2017 that, by Resolution No 219 of 22 March 2017, the Czech Government had abolished the compensation fund for the second intervener in respect of the discharge of the USO for the years 2013 and 2014 and replaced that compensation mechanism with a subsidy of 800 million Czech koruny
(CZK) for those two years. In that letter of 4 May 2017, they suggested to the Commission, with regard to the compensation for the years 2015 to 2017, that it close the pre-notification procedure and initiate a standard notification procedure by including in that latter procedure the compensation by direct subsidy for the years 2013 and 2014.
42      On 15 May 2017, taking due note of the abolition on 22 March 2017 of the compensation fund for the years 2013 and 2014, the Commission invited the Czech authorities to proceed with a new pre-notification covering the whole of the period 2013 to 2017 and, from that point of view, requested additional information from them as a result of the impact of that amendment on the calculation of the NACs, concerning (i) a counterfactual scenario for the whole of the period 2013-2017 on an ex ante basis, namely from 2012 onwards, and (ii) a factual scenario with actual data for each year and a projection for 2017. With regard to the method of calculating the NACs, it invited those authorities to consult the bpost decision (SA.42366) and, in view of the technical nature of the questions, to hold a meeting with its economists to better understand what was needed, in particular with regard to the taking into account of a reasonable profit.
43      More specifically, the Commission asked the Czech authorities to provide it with:
‘(1) Updated information about the incumbent ([Česká pošta]): turnover, ownership, turnover, number of employees and net income for 2013 – 2017, services provided (USO and non-USO related), other SGEIs provided. (2) Updated information about the Czech Postal Market: number of postal operators, market share. (3) Updated description of the pre-notified measure (including the aid granted for 2013-2014) (4) Existence of aid: State aid criteria pursuant to Article 107(1) TFEU (in case you want to add anything to your earlier submission) (5) In particular, as regards the criterion of advantage: Detailed description on the compliance with Altmark conditions (in case you would like to add anything to your earlier submission) (6) Compatibility: Detailed description on the compliance with the [2012 ] SGEI Framework compatibility conditions.
(7) Calculation of the net cost of delivering the USO: [method of calculating the NACs], factual and counterfactual scenarios, reasonable profit incentive effects (taking into account the above remarks). Calculation of the financial burden for the provision of the USO (taking into account the above remarks).’
44      On 6 June 2017, the Czech authorities sent additional information to the Commission concerning the assessments of the Czech Telecommunications Regulatory Authority on compensation for net costs and on the taking into account of a reasonable profit for the years 2013 to 2017.
45      On 8 June 2017, the Commission forwarded Mediaservis’s comments supplementing the complaint to the Czech authorities requesting from them, within 20 working days – failing which an information injunction could be proposed, and the formal investigation procedure might have to be initiated – additional information in that regard, concerning, in particular, the claim that the USO provider cannot incur a financial loss, since it is entitled to receive a reasonable profit; the reliability of the calculation of the NACs for the years 2013 and 2014; the fact that the calculation of the NACs is based on an unrealistic counterfactual scenario as regards the number of post office closures and the reduction of delivery frequencies; the claim that cost allocators of basic services are overestimated and that cost allocators of other services are underestimated; a breach of the Postal Directive, which requires that decisions regarding financial contributions for the provision of the USO should be based on objective and verifiable criteria and be made public, and the fact that the compensation is not allocated to the USO but is intended to increase the salaries of the recipient’s employees.
46      On 19 June 2017, the Commission held a meeting with the Czech authorities.
47      On 28 July 2017, the Czech authorities notified to the Commission compensation in the exclusive form of a direct subsidy covering the whole period from 2013 to 2017 (‘the second pre-notification’).
48      In response to the Commission’s letter of 8 June 2017 and disputing the merits of Mediaservis’s allegations, on 3 August 2017 the Czech authorities sent the Commission additional information relating to cost-oriented prices; the transparency of the calculation of the NACs of the USO; the reliability of the data reported by the second intervener, and to its employees’ wages.
49      On 1 September 2017, the Commission requested information from the Czech authorities concerning, inter alia, the counterfactual scenario based on factual data for 2012; the use of actual data in the factual scenario; the calculation of net costs; the possibility of double counting and the request for a firm’s audit report on the cost allocation audits.
50      On 2 October 2017, the Czech authorities sent all the additional information requested by the Commission in its letter of 1 September 2017.
51      On 17 October 2017, the Commission requested additional information from the Czech authorities concerning factual data and the NACs.
52      On 18 October 2017, the Commission held a meeting with the Czech authorities.
53      On 30 October 2017, the Czech authorities sent all the additional information requested by the Commission in its letter of 17 October 2017.
54      On 18 December 2017, the Czech authorities formally notified the Commission (‘the formal notification’) of aid in the form of compensation granted by the Czech Republic to the second intervener for the performance of its postal activities under a USO for the period from 2013 to 2017 (‘the notified aid’).
55      On 22 December 2017, Mediaservis sent the Commission observations supplementing the complaint.
56      On 19 February 2018, the Commission adopted Decision C(2018) 753 final, State aid SA.45281 (2017/N) and State aid SA. 44859 (2016/FC) declaring that the compensations granted by the Czech Republic to Česká pošta for the performance of its postal activities under a universal service obligation for the period 2013 to 2017 constituted State aid compatible with the internal market, pursuant to Article 106(2) TFEU (‘the contested decision’).
57      By the contested decision, the Commission found that, although the measure at issue constituted State aid within the meaning of Article 107 TFEU, that aid was however compatible, for the purposes of Article 106(2) TFEU, because the second intervener was entrusted with an SGEI.
58      In essence, the Commission found that the notified aid enabled the second intervener to guarantee the discharge of the USO.
59      The Commission also found that the conditions for declaring aid to be compatible for the purposes of Article 106(2) TFEU, as laid down in the 2012 SGEI Framework, were met (see contested decision, recital 159).
Procedure and forms of order sought
60      By application lodged at the Court Registry on 22 May 2018 and last rectified on 12 July 2018, Mediaservis brought the present action.
61      On 11 and 17 September 2018, in accordance with Article 143 of the Rules of Procedure of the General Court, the Czech Republic and Česká pošta respectively sought leave to intervene in support of the form of order sought by the Commission.
62      The Commission lodged its defence at the Court Registry on 1 October 2018.
63      The applicant lodged its reply at the Court Registry on 26 November 2018.
64      By order and decision of the President of the First Chamber of the General Court of 5 December 2018, Česká pošta and the Czech Republic respectively were granted leave to intervene.
65      The Commission lodged its rejoinder at the Court Registry on 30 January 2019.
66      On 18 February 2019, the Czech Republic and the second intervener respectively lodged their statements in intervention at the Court Registry.
67      On 12 March and 8 April 2019, Mediaservis and the Commission lodged their observations on the statements in intervention respectively.
68      On 30 April 2019, pursuant to Article 106 of the Rules of Procedure, Mediaservis requested to be heard at a hearing.
69      As a result of changes to the composition of the chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Seventh Chamber, to which this case has, consequently, been allocated.
70      On a proposal from the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 89 of the Rules of Procedure, requested the Commission to lodge certain documents. In addition, the Commission, together with Mediaservis and the Czech Republic, were requested to reply in writing to several questions before the hearing.
71      The parties complied with those requests within the periods prescribed. In its reply, the applicant, První novinová společnost a.s., indicated that it was the successor in law to Mediaservis.
72      By letter lodged at the Court Registry on 15 January 2020, the Commission submitted observations on the report for the hearing, formal note of which was taken in the minutes of the hearing.
73      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
74      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
75      The Czech Republic contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
76      The second intervener contends that the Court should:
–        dismiss the action.
Law
77      In support of the action, the applicant raises five pleas in law.
78      The first plea in law alleges infringement of Article 108(2) and (3) TFEU in that the Commission decided not to initiate the formal investigation procedure, notwithstanding the serious difficulties stemming from the duration of the procedure (first part) and the insufficient or incomplete nature of the Commission’s examination of the case (second part).
79      The second plea in law alleges that the Commission’s examination of the case was incomplete and insufficient (first part) and that the contested decision is also vitiated in that regard by a failure to state reasons (second part).
80      The third plea in law, which consists of four parts, alleges manifest errors of assessment in connection with the application of the 2012 SGEI Framework concerning the calculation of the NACs in order to perform postal activities under the USO.
81      The fourth plea in law alleges an error of law concerning, in connection with the calculation of those net costs, the failure to take account of certain benefits, in breach of paragraph 25 of the 2012 SGEI Framework and of Part B of Annex I to the Postal Directive.
82      The fifth plea in law alleges an error of law in that the Commission failed, in breach of Section 2.9 of the 2012 SGEI Framework, to impose additional requirements to prevent trade being affected (first part), and that the contested decision is also vitiated in that regard by a failure to state reasons (second part).
83      It is appropriate to examine the first plea in law and the first part of the second plea together before dealing separately with the second part of the second plea and the third to fifth pleas.
The first plea in law and the first part of the second plea in law: infringement of Article 108(2) and (3) TFEU on account of the failure to initiate the formal investigation procedure
84      In the context of the first plea in law of the action and the first part of the second plea in law, the applicant relies on the Commission’s infringement of Article 108(2) and (3) TFEU in that it failed to initiate the formal investigation procedure, even though it was required to do so in order to safeguard the procedural rights of the applicant as an interested party, for the purposes of Article 108(2) TFEU, since, in the applicant’s view, the examination of the case gave rise to serious difficulties.
85      In that regard, it should be borne in mind that the preliminary stage provided for in Article 108(3) TFEU is intended merely to allow the Commission a sufficient period of time for reflection and investigation so that it can form a prima facie opinion on the draft aid plans notified to it, thus enabling it either to conclude, without the need for detailed examination, that the aid is compatible with the FEU Treaty or, by contrast, to make a finding that the content of those plans raises doubts as to that compatibility (see judgment of
3 May
2001, Portugal
v Commission, C‑204/97, EU:C:2001:233, paragraph 34
and the case-law cited;
judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 97).
86      Article 4 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9), which corresponds in essence to Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), sets out the conditions under which the preliminary investigation stage of the aid measures must be conducted (see judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 98
and the case-law cited).
87      In that regard, where an applicant seeks the annulment of a decision not to raise objections on the basis of Article 263 TFEU, it essentially contests the fact that the decision taken by the Commission in relation to the contested measure was adopted without that institution initiating the formal investigation procedure, thereby infringing its procedural rights. In such an action, that party may invoke, for the purpose of safeguarding the procedural rights available to it in the context of the formal investigation procedure, only pleas capable of showing that the assessment of the information and evidence that was available to the Commission during the preliminary investigation stage of the notified measure should have raised doubts as to its compatibility with the internal market, bearing in mind that the information ‘available’ to the Commission includes that which seemed relevant for the assessment to be carried out and which could have been obtained, upon request by the Commission, during the preliminary investigation stage (see judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 99
and the case-law cited).
88      The existence of doubts such as to justify initiating the procedure laid down in Article 108(2) TFEU is reflected in the objective existence of serious difficulties which the Commission encountered when examining whether the measure at issue constituted aid or whether it was compatible with the internal market. It is apparent from the case-law in this respect that the concept of serious difficulties is an objective one (judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 31).
89      The existence of such difficulties must be sought both in the circumstances in which the contested measure was adopted and in its content, in an objective manner, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the internal market (see judgment of
28 March
2012, Ryanair
v Commission, T‑123/09, EU:T:2012:164, paragraph 77
and the case-law cited).
90      It follows that judicial review by the Court of the existence of serious difficulties will, by its nature, go beyond simple consideration of whether or not there has been a manifest error of assessment (see judgments of 27 September
2011, 3F
v Commission, T‑30/03 RENV, EU:T:2011:534, paragraph 55
and the case-law cited, and of
10 July
2012, Smurfit Kappa Group
v Commission, T‑304/08, EU:T:2012:351, paragraph 80
and the case-law cited).
91      A decision adopted by the Commission without initiating the formal investigation stage may be annulled, because of the failure to initiate the inter partes and detailed investigation required under the FEU Treaty, even if it is not established that the Commission’s assessments as to the substance were wrong in law or in fact (see, to that effect, judgment of
9 September
2010, British Aggregates and Others v Commission, T‑359/04, EU:T:2010:366, paragraph 58).
92      It should also be borne in mind that, in accordance with the objective of Article 108(3) TFEU and its duty of sound administration, the Commission may, amongst other things, engage in a dialogue with the notifying State or with third parties in an endeavour to overcome, during the preliminary investigation, any difficulties encountered. That power presupposes that the Commission may adjust its position in accordance with the results of the dialogue in which it engages, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties (see judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 101
and the case-law cited).
93      It is only if those difficulties could not be overcome that they are found to be serious and that they must lead the Commission to have doubts, thus prompting it to initiate the formal investigation procedure (see judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 101
and the case-law cited).
94      In any event, it is for the applicant to prove the existence of doubts and may furnish that proof from a body of consistent evidence (see judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 102
and the case-law cited).
95      It is in the light of that case-law that it is necessary to examine the applicant’s arguments seeking to establish the existence of doubts which should have led the Commission to initiate the formal investigation procedure.
96      In that regard, the applicant puts forward various factors demonstrating, in its view, the existence of serious difficulties. In the first part of the first plea in law of the action, it relies on the duration of the procedure. By the second part of the first plea in law and by the first part of the second plea in law, it alleges that the Commission’s examination of the case was insufficient or incomplete.
The first part of the first plea, based on the duration of the procedure
97      In the first part of the first plea in law of the action, the applicant refers to the duration of the procedure, observing that Article 4(5) of Regulation 2015/1589 provides for a two-month period for the preliminary examination, which may be extended only by mutual consent or where the Commission requires additional information.
98      However, the contested decision was not adopted until 19 February 2018, almost two years after the complaint was received, on 11 March 2016, and after the Commission had twice sent its observations to the Czech authorities and sent them three requests for additional information, on 15 May, 1 September and 17 October 2017. Such a period manifestly exceeds the period granted to the Commission to finalise its preliminary examination.
99      Such a period, coupled with the number of requests made to the Czech authorities, clearly gives rise to serious difficulties.
100    The applicant submits that, even if it is not relevant for the calculation of the two-month period, the handling of a complaint over a very long period clearly reflects serious difficulties and that the number of observations it made during the procedure cannot justify the excessive length of time taken to deal with the case.
101    The Commission cannot legitimately rely on exchanges prior to a formal notification in order to delay at will the starting point of the examination period. In that regard, the applicant refers to the notification of 30 July 2015, registered as Case SA.42756. It observes that that procedure was then changed to a pre-notification procedure in April 2016 on account of serious deficiencies. In essence, it submits that the contacts between the Commission and the Czech authorities prior to the formal notification of 18 December 2017 should be taken into account.
102    The applicant adds that, if the Commission were to claim that the way in which the Czech authorities had acted in the present case was in compliance with the applicable rules, this would – ad absurdum – mean that any Member State could always, when intending to notify any measure, engage in pre-notification contact with the defendant for a practically indefinite period of time. During this period, such Member State, in cooperation with the Commission and without any time or other pressure could work on and resolve any potential issues of the measure in order to then notify such measure. The notification procedures themselves would then obviously be very soon terminated with the defendant approving the notified measure, since all issues would have been then already worked out during the extensive pre-notification contacts between such Member State and the defendant.
103    In that regard, it should be borne in mind, that, according to settled case-law, the duration of the preliminary examination can, alongside other factors, constitute evidence that the Commission has encountered serious difficulties if it considerably exceeds the time usually taken for such an examination (see judgment of
16 September
2013, Orange
v Commission, T‑258/10, not published, EU:T:2013:471, paragraph 42
and the case-law cited).
–       The belated adoption of the contested decision in the light of Article 4(5) of Regulation 2015/1589
104    In order to establish the existence of serious difficulties in the examination of the measure at issue justifying the opening of the formal procedure, the applicant submits that the contested decision was adopted late in the light of the time limit laid down in Article 4(5) of Regulation 2015/1589.
105    In this respect, it should be recalled that, pursuant to Article 4(5) of Regulation 2015/1589, a decision not to raise objections, as referred to in paragraph 3 of that article, is to be taken within two months. That period is to begin on the day following the receipt of a complete notification, a notification being considered as complete if, within two
months from its receipt, or from the receipt of any additional information requested, the Commission does not request any further information, it being possible to extend that period with the consent of both the Commission and the Member State concerned (see judgment of
16 September
2013, Orange
v Commission, T‑258/10, not published, EU:T:2013:471, paragraphs 45 and 46 and the case-law cited).
106    It is clearly apparent from this that the two-month period in question does not in any way run from the date, where applicable and as in the present case, of a complaint lodged with the Commission, so that the first calculation of that time limit proposed by the applicant must be rejected.
107    In the present case, it is common ground that the Czech authorities did not formally notify the disputed aid until 18 December 2017.
108    It is thus at the earliest from receipt of the formal notification, namely on 18 December 2017, that the two-month period in question must be calculated, under Article 4(5) of Regulation 2015/1589, and not, as the applicant submits, from the date of the complaint, or from the date of the first pre-notification or of the second pre-notification. Accordingly, periods of time which have elapsed before the formal notification are not included in that calculation (see, to that effect, judgments of 16 September
2013, Orange
v Commission, T‑258/10, not published, EU:T:2013:471, paragraph 52, and of
3 December
2014, Castelnou Energía
v Commission, T‑57/11, EU:T:2014:1021, paragraph 67).
109    Thus, in the factual and chronological context of the present case, it was only on 18 December
2017, namely two months and one day prior to the adoption of the contested decision, that the Commission received formal and complete notification, for the purposes of Article 4(5)
of Regulation 2015/1589 (see, to that effect, judgment of
28 March
2012, Ryanair
v Commission, T‑123/09, EU:T:2012:164, paragraph 168).
110    It must therefore be concluded that the period of two months and one day which elapsed in the present case between the formal notification and the adoption of the contested decision corresponds, to within one day, to the time limit laid down in Article 4(5) of Regulation 2015/1589.
111    That assessment cannot be called into question by the judgment of 10 February 2009, Deutsche Post and DHL International
v Commission (T‑388/03, EU:T:2009:30), relied on by the applicant.
112    It is true that, in the case which gave rise to the judgment of 10 February 2009, Deutsche Post and DHL International v Commission (T‑388/03, EU:T:2009:30), the complaint was made that the Commission infringed the two-month period in question, in that it had closed its procedure for the preliminary examination seven months after the State in question had notified it of the planned aid at issue.
113    However, in the case in question, the notification made was neither a prior notification nor a pre-notification, but a formal and complete notification.
114    It must therefore be held that the circumstances of the case in question differ significantly from those of the present case.
115    Consequently, in so far as the applicant seeks to establish the existence of serious difficulties in the context of the examination of the measure at issue justifying the initiation of the formal procedure, by referring to the belated adoption of the contested decision in the light of Article 4(5) of Regulation 2015/1589, its arguments cannot succeed.
–       The duration of the preliminary examination procedure
116    In order to establish the existence of serious difficulties in the examination of the measure at issue justifying the opening of the formal procedure, the applicant submits that the procedure for the preliminary examination was excessively long, irrespective of the time limit laid down in Article 4(5) of Regulation 2015/1589. In that regard, it is true that the length of the preliminary examination procedure can constitute an indication that the Commission may have had doubts regarding the compatibility of the aid in question with the internal market (see, to that effect, judgment of
24 January
2013, 3F
v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 32
and the case-law cited).
117    It is also true that, in the present case, the contested decision was adopted on 19 February 2018, that is to say, more than 30 months after the first notification, on 30 July 2015, more than 23 months after the complaint, lodged on 11 March 2016, and more than 22 months after the first pre-notification, on 29 April 2016, such a particularly long period of time being capable of constituting an indication of the existence of serious difficulties.
118    The fact remains that, while it can constitute an indication that the Commission may have had doubts regarding the compatibility of the aid in question with the internal market, the length of the procedure for the preliminary examination cannot in itself lead to the conclusion that the Commission was facing serious difficulties and that it should therefore have initiated the formal investigation procedure (see, to that effect, judgment of
24 January
2013, 3F
v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 32
and the case-law cited).
119    Whether or not the duration of a procedure for the preliminary examination is reasonable must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages to be followed by the Commission, the complexity of the case and its importance for the various parties involved (see judgment of
15 March
2018, Naviera Armas
v Commission, T‑108/16, EU:T:2018:145, paragraph 61
and the case-law cited).
120    In the present case, it is apparent from all the material in the file concerning the various stages of the Commission’s preliminary examination, as set out in paragraphs 4 to 59 above, that the circumstances of the present case explain and justify the admittedly particularly long duration of that examination; that duration cannot however in itself indicate the existence of serious difficulties.
121    In the first place, it is common ground that, further to the first notification of 30 July 2015, the Commission raised certain concerns with the Czech authorities regarding the initial compensation proposal, that those authorities provided additional information in that regard and that they formally withdrew their notification on 29 April 2016.
122    In the second place, first, it should be noted that the Commission communicated the complaint to the Czech authorities on 30 March 2016, shortly after receiving it, on 11 March 2016. The Czech authorities replied promptly, on 27 April 2016, before sending it the first pre-notification, on 29 April 2016.
123    Secondly, further to the first pre-notification, the Commission held meetings with the Czech authorities already on 17 and 22 June 2016, as well as on 11 July, 15 October and 11 November 2016, and on 30 January and 19 June 2017.
124    Thirdly, during that stage of the procedure, the Commission also requested additional information from the Czech authorities, in June and July 2016, and in
February, May and June 2017.
125    Fourthly, it should be noted that, further to the meetings and requests for information in question, the Czech authorities sent additional information to the Commission, on 8 July, 31 August, 17 October, 18 November, 3 December and 20 December 2016, and on 13 February, 4 May and 6 June 2017.
126    Fifthly, during that stage of the procedure, the applicant does not dispute that the Commission at the same time received observations from Mediaservis on four occasions supplementing the complaint, on 20 June, 26 September and 31 October 2016, and on 28 April 2017.
127    Sixthly, nor does the applicant dispute that, following the complaint and the observations at issue which the Commission communicated to the Czech authorities on 8 June 2017, the Commission held meetings and corresponded with Mediaservis on 17 June and 15 October 2016, and on 29 March 2017.
128    It must therefore be stated that, during the investigation procedure prior to and subsequent to the complaint and to the first pre-notification, far from remaining inactive, the Commission, in accordance with the objective of Article 108(3) TFEU and its duty of sound administration, initiated a dialogue with the Czech authorities in order to overcome, during the preliminary examination, the difficulties encountered.
129    It follows from the foregoing that, contrary to what the applicant claims, the fact that the Commission concluded, during the preliminary examination, that the measure at issue raised difficulties and required amendments was in no way such as to require the Commission to initiate the formal investigation procedure provided for in Article 108(2) TFEU, as it remained possible to overcome the difficulties encountered during talks with the Czech authorities and, in particular, as in the present case, by means of an adjustment of the compensation arrangements indicated by those authorities (see, to that effect, judgment of
21 December
2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 37).
130    In other words, if the difficulties encountered were overcome, they turned out not to be, or at least no longer to be, serious and in any event not decisive, so that the Commission was entitled to remove any doubts, thus leading it not to initiate the formal investigation procedure (see, to that effect, judgment of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 101
and the case-law cited).
131    In the third place, it should be noted that it was apparent from those initial stages of the procedure, namely that which began as from the notification of 30 July 2015, withdrawn on 29 April 2016, from the complaint and from the first pre-notification, that the Czech authorities made significant amendments to their compensation proposal during the Commission’s preliminary examination stage.
132    It must be recalled that, in order to provide compensation for the costs generated by the discharge of the USO, the Czech Government had initially envisaged granting the second intervener compensation in the form of a compensation fund for the years 2013 and 2014 and a direct subsidy for the years 2015 to 2017.
133    It should also be recalled that, by Resolution No 219 of 22 March 2017, the Czech Government abolished the compensation fund for the second intervener in respect of the discharge of the USO for the years 2013 and 2014 and that, on 4 May 2017, the Czech authorities informed the Commission of that resolution and, in respect of the discharge of the USO for those years, of the replacement of the initial compensation mechanism by a direct subsidy also for those years.
134    Subsequently, on 15 May 2017, the Commission invited the Czech authorities to proceed with a new pre-notification covering the whole of the period 2013 to 2017 and, from that point of view, requested additional information from them as a result of the impact of that amendment on the calculation of the NACs throughout the entire period of the discharge of the USO.
135    Thus, on 28 July 2017, the Czech authorities notified to the Commission compensation granted to the second intervener in the exclusive form of a direct subsidy covering the whole period from 2013 to 2017.
136    Accordingly, it was only from 28 July 2017, that is to say, from the second pre-notification, that the Commission was able to examine the compensation granted to the second intervener for the entire period from 2013 to 2017.
137    However, during that latter phase of the procedure, namely that between the second pre-notification, of 28 July 2017, and the formal notification, lodged on 18 December 2017, first, it is common ground that the Commission sent requests for additional information to the Czech authorities, on 1 September and 17 October 2017, and also held a meeting with the Czech authorities, on 18 October 2017.
138    Secondly, it is equally common ground that the Czech authorities sent additional information to the Commission on 3 August 2017 and, further to those requests for information and to the meeting of 18 October 2017, on 2 October and 30 October 2017.
139    Thus, both the course of the procedure and the evolution of the situation in question as well as the resulting additional exchanges between the Commission and the Czech Republic constitute objective circumstances which are unrelated to any serious difficulties encountered in the examination of the measures in question and which contributed to extending the length of the procedure for the Commission’s preliminary examination (see, to that effect, judgment of
15 March
2018, Naviera Armas
v Commission, T‑108/16, EU:T:2018:145, paragraphs 65 to 73).
140    Moreover, the stage of the procedure that elapsed between the second
pre-notification, on 28 July 2017, and the formal notification, on 18 December 2017, lasted less than five months, whereas the Commission was required, in the context of a dialogue with the Czech authorities, to carry out an in-depth examination of the amended measure at issue in order to dispel any concerns as to the compatibility of the aid.
141    It must therefore be held that, during the whole of the period between, on the one hand, the first notification, the complaint and the first pre-notification and, on the other hand, the second pre-notification and the formal notification, the Commission, far from proving ineffective, requested and obtained from the Czech authorities, in accordance with the purpose of Article 108(3) TFEU and with its duty of sound administration, an amendment of the aid measure and additional information essential to assessing the amended content of that measure, with a view to overcoming, during the preliminary examination, any concerns it may have encountered.
142    In that regard, it should be noted that the case-law shows that the mere fact that discussions took place between the Commission and the notifying Member State during the preliminary examination stage, and that, in that context, the Commission asked for additional information about the measures submitted for its review, cannot in itself be regarded as evidence that the Commission was confronted with serious difficulties of assessment (see judgment of
10 July
2012, TF1 and Others v Commission, T‑520/09, not published, EU:T:2012:352, paragraph 76
and the case-law cited).
143    Lastly, it is also common ground that the applicant added observations to the complaint on 20 June, 26 September and 31 October 2016 and 28 April 2017, and further
observations on 22 December 2017, which, where relevant, enabled the Commission to refine its examination and to gauge and strengthen its conviction that the compensation granted to the second intervener was compatible.
144    It follows in any event that, during the whole of the examination phase of the case by the Commission, Mediaservis was heard by the Commission and that the latter was able to adjust its position according to the information communicated not only by the Czech authorities, but also by Mediaservis, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties (see, to that effect, judgments of 13 June
2013, Ryanair
v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraph 71; of
21 December
2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 31; and of
6 May
2019, Scor
v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 101).
145    Consequently, the course of the preliminary examination procedure does not in itself reveal serious difficulties that required the Commission to open the formal investigation procedure provided for in Article 108(2) TFEU.
146    Accordingly, the first part of the first plea must be rejected.
The second part of the first plea in law and the first part of the second plea in law: insufficient or incomplete examination of the case by the Commission
147    In the context of the second part of the first plea in law and the first part of the second plea in law, the applicant claims, with a view to establishing the existence of serious difficulties, that the Commission’s examination of the case was insufficient or incomplete.
148    The applicant observes that the Commission is required to examine all the facts and points of law brought to its knowledge by persons whose interests may be affected by the grant of the aid, and that it is in the light of both the information notified by the Member State concerned and that provided by any complainants that that institution must make its assessment in the context of the preliminary examination provided for in Article 108(3) TFEU.
149    In that regard, it should be pointed out that it is apparent from the case-law that if the examination carried out by the Commission of the matters of fact and law brought to its knowledge during the preliminary investigation procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties (see judgments of 3 December
2014, Castelnou Energía
v Commission, T‑57/11, EU:T:2014:1021, paragraph 88
and the case-law cited, and of
17 March
2015, Pollmeier Massivholz
v Commission, T‑89/09, EU:T:2015:153, paragraph 50 (not published) and the case-law cited).
150    To that end, the applicant bears the burden of proof, which it may discharge by reference to a body of consistent evidence, concerning, in particular, the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure.
As an interested party, the applicant has neither powers of investigation nor investigatory capabilities that are comparable to those enjoyed by the Commission, which can, where necessary, request the cooperation of a Member State in order to complete its examination of the notified measure.
151    Accordingly, in the present case, at a stage of the procedure when the parties concerned have not yet been given notice to present their observations by a decision to initiate a formal investigation procedure, it is sufficient that the applicant set out its reasons for concluding, in the light of the contested decision, that the Commission should have had doubts as to the compatibility of the notified measure with the internal market. Therefore, it is not necessary for the applicant to present sufficient evidence to establish the incompatibility of the notified aid.
152    In that regard, it has been held that the Commission could, in certain circumstances, be required to investigate a complaint by going beyond merely examining the matters of fact and law brought to its knowledge by the complainant. The Commission is required, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, to conduct a diligent and impartial examination of the complaint, which may make it necessary for it to examine matters not expressly raised by the complainant (see judgment of
15 March
2018, Naviera Armas
v Commission, T‑108/16, EU:T:2018:145, paragraph 101
and the case-law cited).
153    Moreover, it should be noted that, in order to be in a position to carry out a sufficient examination for the purposes of the rules that apply to State aid, the Commission is not obliged to limit its analysis to the information contained in the notification of the measure at issue. It can and, where necessary, must seek relevant information so that, when it adopts the contested decision, it has at its disposal assessment factors that can reasonably be considered to be sufficient and clear for the purposes of its assessment. By way of illustration, it has already been held that the Commission had carried out an ‘active and thorough’ examination of the compatibility of an aid measure as it had questioned the substance of the arguments put forward by the Member State concerned (see, to that effect, judgment of
10 December
2008, Kronoply and Kronotex
v Commission, T‑388/02, not published, EU:T:2008:556, paragraph 127), whereas an examination was held to be ‘insufficient’ on the basis that the Commission had failed to obtain information that would have allowed it to assess a measure (see, to that effect, judgment of
10 February 2009, Deutsche Post and DHL International
v Commission, T‑388/03, EU:T:2009:30, paragraphs 109 and 110).
154    Therefore, in order to establish the existence of doubts within the meaning of Article 4(4) of Regulation No 659/1999, it is sufficient that the applicant show that the Commission has not researched and examined, thoroughly and impartially, all of the relevant information for the purposes of that analysis or that it has failed duly to take that information into account in such a way as to eliminate all doubt as to the compatibility of the notified measure with the internal market.
155    Moreover, it is settled case-law that the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, to that effect, judgment of
15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 54 and 55 and the case-law cited). The information ‘available’ to the Commission includes that which appeared to be relevant for the assessment that the Commission had to carry out pursuant to Article 108(2) and (3) TFEU and Article 4(3) or (4) of Regulation No 659/1999.
156    In order to establish doubts as to the compatibility of the aid with the internal market, the applicant may therefore rely on all relevant information that was or could have been available to the Commission on the date when it adopted the contested decision. Equally, for the purposes of the review of lawfulness that the Court is required to carry out in that regard, the Court can take into consideration any information included in the contested decision in support of the assessment made by the Commission therein.
157    It is therefore appropriate to review whether, in the light of the information available to the Commission when the contested decision was adopted, the elements put before the Court by the applicant were capable of raising doubts as to the partial or total compatibility of the notified measure with the internal market, therefore requiring the Commission to initiate the formal investigation procedure, without prejudice to the subsequent exercise by the Commission of its power to assess the compatibility of that measure with the internal market following the initiation of that procedure.
158    In the present case, the applicant claims that it is apparent from a comparison of the grounds of the contested decision and the information brought to the Commission’s knowledge, inter alia by Mediaservis, that the Commission did not deal with all the information communicated and puts forward five complaints in that regard.
–       The first complaint: the alleged non-charging of VAT
159    The applicant recalls that Mediaservis informed the Commission, in the complaint and its observations of 20 June 2016, of the Czech authorities’ tolerance of VAT not being charged by the second intervener in connection with ‘individually negotiated agreements and postal services [outside] the scope of universal service’. Such a practice infringes the VAT directives and constitutes State aid. In the contested decision, the Commission merely dealt with the VAT issue by considering the benefits derived by the second intervener from the VAT exemption as an intangible benefit linked to the determination of net costs. On the other hand, the Commission did not deal with the specific complaint alleging a failure to charge VAT by the second intervener in connection with ‘individually negotiated agreements and postal services [outside] the scope of universal service’.
160    The applicant submits that the Commission did not in any way respond to the complaint in question in the contested decision, addressing it only in relation to the benefits covered by the USO. The applicant disputes the arguments on the Commission’s obligations as regards, in the present case, closely linked aid measures, for the purposes of the order of 25 March 1998, FFSA and Others v Commission (C‑174/97 P, EU:C:1998:130), and therefore the Commission was obliged to make enquiries in order to address the issues raised before it.
161    The applicant also disputes the allegations that Mediaservis did not provide any evidence proving that the second intervener, by not charging VAT in the case of individually negotiated agreements, had infringed the zákon č. 235/2004 Sb., o dani z přidané hodnoty (Law No 235/2004 Rec., on value added tax), as amended (‘the Czech VAT law’), since, on several occasions, the company which it succeeded in law reported its suspicions and urged the Commission to confirm them, namely the contracts between the second intervener and particular major senders.
162    That line of argument cannot succeed for the purposes of establishing the existence of serious difficulties indicating an insufficient or incomplete examination of the case by the Commission.
163    It is true that Mediaservis was able to refer in the complaint, at the meeting with the Commission of 17 June 2016 and in its letter to the Commission of 26 September 2016, to services provided by the second intervener, under individually negotiated agreements and for services not falling within the scope of the USO, in respect of which VAT was not charged. It is also true that the Commission did not respond to that complaint in the contested decision.
164    Nevertheless, the fact remains, first of all, that the Commission took into account, in recitals 133 to 135 of the contested decision, the impact of the VAT exemption on services covered by the USO, which the applicant does not dispute.
165    Furthermore, even if it were established, non-charging of VAT in respect of services not falling within the scope of the USO would have had no effect on the NAC calculation relating to the USO, since, as is apparent from paragraph 25 of the 2012 SGEI Framework, that calculation consists in the difference between the net cost for the provider of operating with the public service obligation and the net cost or profit for the same provider of operating without that obligation.
As the Commission observes, whether or not non-charging of VAT for services falling outside the scope of the USO did or did not occur should be reflected both in the factual scenario and in the counterfactual scenario. That non-charging of VAT would therefore have no impact on the calculation of the amount of compensation granted to the second intervener.
166    Lastly, the contested decision relates solely to the compensation granted to the second intervener for the discharge of the USO for the period 2013-2017. However, the applicant does not show that the complaint alleging non-charging of VAT in respect of services not falling within the scope of the USO is closely linked to that compensation. Moreover, it is apparent from the documents produced by the applicant before the Court that, in the complaint, Mediaservis had complained about the non-charging of VAT in respect of services not falling within the scope of the USO during a period other than that covered by the compensation which is the subject of the contested decision.
167    The applicant’s argument based on paragraphs 33 to 35 of the order of 25 March 1998, FFSA and Others v Commission (C‑174/97 P, EU:C:1998:130) cannot therefore succeed.
168    In those circumstances, the Commission’s lack of response to the complaint that VAT was not charged in respect of services not falling within the scope of the USO in the contested decision has no bearing on the lawfulness of that decision.
169    Accordingly, this complaint cannot succeed, inasmuch as it is in part unfounded and ineffective as to the remainder.
–       The second complaint, relating to services other than those linked to the USO and to subsidies from small municipalities
170    The applicant claims that Mediaservis criticised, in the complaint, the second intervener’s ability, as a result of its dense network, to provide a number of other income-generating services, such as financial services, as well as the subsidies paid by small municipalities. The Commission made no mention whatsoever of those factors in the contested decision and merely referred to the second intervener’s accounting methods which the latter deemed to be relevant.
171    The applicant criticises the superficial nature of the Commission’s arguments and its failure to refer in detail to the various services in question, the Commission having confined itself to distinguishing between postal and non-postal services.
172    The applicant further states that the explanation provided by the Commission in the defence relating to the subsidies paid by small municipalities which, in the Commission’s view, fall within the scope of commercial partnerships, is out of time and does not appear in the contested decision, in breach of the Commission’s obligation to state reasons.
173    As regards the evidence of such measures, the applicant states that it was unable to gain access to those partnerships and observes that it was for the Commission to verify whether those agreements had been concluded on purely commercial terms, which was not the case on the basis of statements of 26 February 2018 made by a Czech Member of the European Parliament, referring to exchanges with the Czech Minister of the Interior on the appropriateness of redeploying the second intervener’s network.
174    In addition, the applicant disputes the impact of post office closures on certain services other than those falling within the scope of the USO.
175    That line of argument cannot succeed for the purposes of establishing the existence of serious difficulties indicating an insufficient or incomplete examination of the case by the Commission.
176    As regards the additional sources of revenue generated by the second intervener’s network, the Commission took them into account in the counterfactual scenario, which falls within the assessment of the merits of the decision, the Commission having in any event dealt with that aspect of the complaint.
177    The fact that the Commission did not break down in detail the other services in question cannot, in itself, establish that its examination of the case was incomplete or insufficient, especially in the context of the method of calculating NACs (see paragraph 165
above).
178    Moreover, as regards the alleged subsidies granted by small municipalities, it is common ground that, in the contested decision, the Commission did not respond to Mediaservis’s argument. It must be stated, however, that the applicant seeks to reverse the burden of proof borne by it and that, in the context of the evidence provided to the Commission, the applicant did not adduce, as it expressly admits, any evidence of the existence of those agreements and, a fortiori, of the non-commercial nature of their terms.
179    In any event, the statements of a Member of the Parliament on 26 February 2018, to which the applicant refers, postdate the adoption of the contested decision, so that those statements were clearly not in the Commission’s possession during the examination procedure.
180    Accordingly, it cannot be alleged that the Commission carried out an incomplete or insufficient examination of that evidence, and therefore this complaint cannot succeed, since it is unfounded.
–       The third complaint, based on certain public statements
181    The applicant submits that, while Mediaservis sent certain public statements to the Commission in the complaint and in its observations of 28 April 2017, the Commission did not examine at all the statement by the Chief Executive Officer of the second intervener that ‘[the latter] would generate profit even without net cost compensation’ or the statement by the Czech Prime Minister that ‘the compensation in favour of [the second intervener] for 2013 and 2014 has as [its] real objective not the compensation of losses, but rather to enable wage increases in the future’.
182    Those statements demonstrate that the Czech authorities had provided the Commission with incorrect information on the costs of the USO, which should have led it to carry out a more thorough examination in that regard.
183    The applicant adds that the Commission ignored paragraph 21 of the 2012 SGEI Framework, which limits the allocation of compensation to covering the net cost of discharging the public service obligations.
184    That line of argument cannot succeed for the purposes of establishing the existence of serious difficulties indicating an insufficient or incomplete examination of the case by the Commission.
185    As regards the first statement at issue, showing profits even without the compensation, it should be pointed out that the overall profitable situation of the USO operator cannot in any way preclude loss-making results for the discharge of the USO. Otherwise, the very scheme of the compensation for the discharge of that obligation would be called into question. In other words, the method of calculating NACs is independent of the operator’s other results.
186    In short, no profitable operator would agree, moreover, to take over a USO at the risk of having to offset the resulting net costs against its profits generated by its other activities.
187    As regards the second statement at issue, which refers to the allocation of the compensation to wage increases, it must be stated that there is nothing in the 2012 SGEI Framework to prevent the proceeds of the compensation from being allocated to items other than the USO, since that is a management decision of the operator.
188    The applicant’s reading of paragraph 21 of the 2012 SGEI Framework is manifestly incorrect.
189    As provided in paragraph 21 of the 2012 SGEI Framework, ‘the amount of compensation must not exceed what is necessary to cover the net cost of discharging the public service obligations’, including a reasonable profit.
190    However, and as the Commission correctly observed, it does not in any way follow from paragraph 21 of the 2012 SGEI Framework that the compensation must be allocated to cover the net cost of the USO, but only that it must not exceed that cost.
191    It is clear that the applicant is confusing the amount of compensation with its allocation.
192    Consequently, it cannot be alleged that the Commission carried out an insufficient or incomplete examination of the case on the basis of the two statements at issue.
193    Accordingly, this complaint cannot succeed, since it has no legal basis.
–       The fourth complaint, based on the second intervener’s pricing policy
194    The applicant submits that, in the complaint, Mediaservis provided the Commission with evidence about the second intervener’s pricing policy in relation to common letters, including the prices for ordinary people (senders of single items) and bulk senders (banks, insurance providers, energy companies, etc.) for direct mail or bulk or hybrid mail items, demonstrating that that pricing policy was not based on a correct allocation of costs between the universal service and other activities, but was rather driven by cross-subsidising services where the second intervener is exposed to competition through the income from the universal service. None of the facts reported in that regard is mentioned in the contested decision.
195    For the purposes of claiming that it has
suspicions of cross-subsidisation derived from the income from the USO for services open to competition, the applicant observes that the audit carried out annually by an independent auditor does not verify the allocation keys for the various items.
196    The applicant also claims that the amendment made to the initial proposal, namely the abolition of the compensation fund, could not justify an updating of the NACs, which reinforces the suspicion that the data provided in the second pre-notification were arranged in such a way as to give the impression of compliance with the requirements of the 2012 SGEI Framework, which should have led the Commission to conduct a more detailed examination of the measure at issue.
197    That line of argument cannot succeed for the purposes of establishing the existence of serious difficulties indicating an insufficient or incomplete examination of the case by the Commission.
198    It should be pointed out that, from an accounting point of view, the Commission cannot be criticised for not having carried out a more detailed examination of the measure at issue and for relying on the accounts submitted, since those accounts showed separately the costs and revenue relating to the activities connected with the USO and those relating to other activities, in accordance with an allocation key approved by the national regulatory authority and subject to annual review by an independent auditor.
199    Moreover, it should be noted that the pricing differences referred to by the applicant are not in principle contrary to the relevant provisions of the Postal Directive as regards services covered by the USO, since Article 12 of that directive allows individualised tariffs subject to compliance with certain conditions of transparency and non-discrimination.
200    As regards activities falling outside the scope of the USO, it is sufficient to note, as the Commission and the interveners have done, that those prices are set freely and are subject to the law of supply and demand, so that any tariff differentiation can logically emerge from them.
201    Consequently, nor can the Commission reasonably be criticised here for not having examined the measure at issue in greater depth in this respect.
202    For the sake of completeness, it should be pointed out that the 2012 SGEI Framework does not in any way preclude a USO operator from being able freely to allocate the compensation paid for that purpose to other services, with the result that the applicant’s argument cannot succeed and the fourth complaint must be rejected.
–       The fifth complaint: the Czech authorities’ counterfactual scenario
203    The applicant submits that the Commission examined the logic of the alternative scenario submitted by the Czech authorities with regard to the closure of the second intervener’s
offices and the reduction in the frequency of its deliveries without the universal service, but did not provide any response to the arguments raised in Mediaservis’s observations of 26 April 2017.
In those observations, Mediaservis claimed that the use of the second intervener’s dense network for other activities meant that it would never downsize its network and that a reduction in the frequency of deliveries would trigger a significant loss of market shares by the second intervener, in particular as regards the delivery of e-commerce goods.
204    The applicant objects to the taking into account of a sub-optimal strategic choice in the light of the test of the private investor operating in the market economy (the market economy operator (‘MEO’) test) and complains about the superficial nature of recitals 112 and 113 of the contested decision.
205    In order to challenge the reliability of the scenario in question, the applicant refers to official estimates of which it recently became aware and which call into question entirely the projections relied on.
206    That line of argument cannot succeed for the purposes of establishing the existence of serious difficulties indicating an insufficient or incomplete examination of the case by the Commission.
207    In essence, the applicant disputes the reliability of the counterfactual scenario of the Czech authorities, as regards, in the absence of the USO, the reduction of the second intervener’s
network and its delivery frequencies, which would be inconceivable for the provision of other services; this should have led the Commission to recognise that there were serious difficulties justifying the initiation of the formal investigation procedure.
208    Thus, in order to reject that complaint, it is sufficient to note that the Commission discussed it, to the requisite legal standard, in recitals 112 and 113 of the contested decision and to point out that the fact that the result of the Commission’s assessment does not confirm that complaint does not establish that the Commission carried out an incomplete or insufficient examination of the case in that regard.
209    In any event, the MEO test cannot be usefully invoked, since it is applicable only to assess the existence of State aid, not its compatibility.
210    Moreover, the new assessments to which the applicant refers, if they are considered verifiable, would run counter to the applicant’s argument, in that the number of closed offices would be even higher than the number used in the counterfactual scenario of the Czech authorities.
211    Accordingly, this complaint must be rejected as unfounded.
212    Therefore, since the claims formulated in the context of the second part of the first plea and of the first part of the second plea do not permit it to be established that the Commission carried out an incomplete or insufficient examination during the preliminary examination stage, it must be held that the applicant has not adduced evidence of the existence of serious difficulties in that respect.
213    Those complaints must therefore be rejected as unfounded.
214    Accordingly, it is necessary to reject the second part of the first plea in law and, therefore, the first plea as a whole, as well as the first part of the second plea in law.
The second part of the second plea in law: failure to state reasons
215    In the context of the second part of the second plea, the applicant submits that, by not examining all the facts and points of law brought to its notice by Mediaservis and described in the context of the first part of the second plea in law, the Commission failed to fulfil its obligation to state reasons for the contested decision.
216    The applicant adds that the statement of reasons must appear in the contested decision, that the only purpose of the two meetings that Mediaservis had with the Commission, on 17 June and 15 October 2016, was to enable the applicant to communicate information to the Commission, and that the only letter received from that institution, on 29 March 2017, was intended merely to express doubts as to the grant of aid and to inform it of the intention to close the file without providing other reasons, and without providing the replies from the Czech authorities, so that the applicant became aware of the Commission’s view, and even then only on certain points, only after the publication of the contested decision.
217    In that regard, it has been consistently held that the scope of the obligation to state reasons depends on the nature of the measure at issue and on the context in which it was adopted. Thus, the decision not to initiate the formal investigation procedure provided for in Article 108(2) TFEU must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market, and even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in Article 296 TFEU if it nevertheless discloses in a clear and unequivocal fashion the reasons for which the Commission considered that it was not faced with serious difficulties, the question of whether the reasoning is well founded being a separate matter (judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraphs 65, 70 and 71; of 27 October 2011, Austria v
Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 111; and of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 79).
218    The statement of reasons must enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and so that the European Union judicature can exercise its power of review.
It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (judgments of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraphs 62 to 64; of 16 October 2014, Eurallumina v Commission, T‑308/11, not published, EU:T:2014:894, paragraph 44; and of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 80).
219    In the present case, the applicant complains that the Commission failed to adopt a position on the facts and points of law which Mediaservis communicated to it and which, in the applicant’s view, revealed the existence of serious difficulties justifying the initiation of the formal investigation procedure.
220    In the case, first, of the alleged State aid resulting from the allegedly unlawful failure to collect VAT under individually negotiated agreements and of postal services falling outside the scope of the universal service, it must be stated that the Commission adopted a position, in recitals 133 to 135 of the contested decision, only on the exemption from VAT of universal services.
221    The fact remains that the Commission was not required to take a view, in the context of its examination of the case and having regard to the subject matter of the contested decision, namely the compatibility of the compensation for the discharge of the USO, on the lawfulness of any non-charging of VAT in respect of services not falling within the scope of the USO (see paragraph 166 above).
222    As regards, secondly, the density of the second intervener’s network allowing the provision of other services, it must be stated that the Commission took full account of those services in recitals 87 to 94 and 116 of the contested decision.
223    In so far as the Commission’s assessment of those services concerns the merits of the contested decision, the applicant’s arguments cannot succeed on the basis of the statement of reasons for that decision.
224    In order to reject the complaint relating to subsidies granted by small municipalities, it is sufficient to note that it is clear that the Commission cannot be criticised for not having adopted a position on the entirely unsubstantiated arguments of Mediaservis in that regard, since the Commission was not, in any event, required to take a view on that aspect, which was not of decisive importance in the scheme of the contested decision and since the applicant was able to understand that.
225    Third, as regards the statements by the second intervener’s Chief Executive Officer and the Czech Prime Minister, (see paragraph 182
above), the Commission concedes that it did not take a view on those statements.
226    However, as is apparent from the Court’s assessment of the second part of the first plea in law and the first part of the second plea in law, that complaint is based on a misunderstanding of NACs, so that the applicant’s arguments in that regard cannot succeed on the basis of the statement of reasons either.
227    Fourthly, as regards the alleged allocation of costs between the universal service and other activities which, according to the applicant, is attributable rather to a cross-subsidisation of the services where the second intervener is exposed to competition through the income from the universal service, it must further be stated that the Commission responded to those complaints in recitals 93 and 94 of the contested decision.
228    Fifthly, as regards the arguments directed against the logic of the alternative scenario submitted by the Czech authorities with regard to the closures of its offices and the frequency of its deliveries in the absence of universal service, it must be stated that the Commission responded to them in recitals 112 and 113 of the contested decision.
229    In any event, with regard to the assumptions, arguments and specific matters which Mediaservis raised with the Commission and on which it is alleged that the Commission did not take a view, the Commission cannot be criticised for not having systematically adopted a position in that regard, since it set out the facts and legal considerations having decisive importance in the context of the contested decision.
230    As regards, lastly, the fact that the Czech authorities’ responses were not communicated to the applicant, it is sufficient to observe that the Commission was not entitled to forward those responses; if that were not the case, the dialogue and, therefore, the cooperation between the Commission and those authorities would be jeopardised (see, to that effect, judgment of
7 September
2017, AlzChem
v Commission, T‑451/15, not published, EU:T:2017:588, paragraphs 54 to 57).
231    Consequently, the second part of the second plea, and therefore the second plea as a whole, must be rejected.
The third plea in law
232    In the context of the third plea in law of the action, the applicant submits that the Commission committed manifest errors of assessment by finding that overcompensation of the net costs resulting from the discharge of the USO was precluded.
Preliminary observations
233    Article 106(2) TFEU provides that undertakings entrusted with the operation of SGEIs are to be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them and that the development of trade must not be affected to such an extent as would be contrary to the interests of the Union (judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 28).
234    In allowing derogations to be made from the general rules of the Treaty in certain circumstances, Article 106(2) TFEU seeks to reconcile the Member States’ interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy with the Union’s interest in ensuring compliance with the rules on competition and the preservation of the unity of the internal market (judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 31).
235    What Article 106(2) TFEU seeks to prevent, through the assessment of the proportionality of the aid, is that the operator responsible for the public service benefits from funding which exceeds the net costs of the public service (judgments of 7 November 2012, CBI v Commission, T‑137/10, EU:T:2012:584, paragraph 293; of 16 October 2013, TF1 v Commission, T‑275/11, not published, EU:T:2013:535, paragraph 131; and of 24 September 2015, Viasat Broadcasting UK v Commission, T‑125/12, EU:T:2015:687, paragraph 87).
236    In that regard, paragraph 21 of the 2012 SGEI Framework provides that the amount of compensation granted to an SGEI provider must not exceed what is necessary to cover the net cost of discharging the public service obligations, including a reasonable profit.
As is apparent from that paragraph, net cost means net avoided cost or costs minus revenues where the net avoided cost methodology cannot be applied.
237    According to paragraph 24 of the 2012 SGEI Framework, the net cost necessary, or expected to be necessary, to discharge the public service obligations should be calculated using the net avoided cost methodology where this is required by Union or national legislation and in other cases where this is possible.
238    Annex I to the Postal Directive provides for the application of the net avoided cost methodology for the calculation of the net cost of the USO in the postal sector.
239    Thus, in the contested decision, the Commission assessed the possible existence of overcompensation under the NAC methodology.
240    Paragraph 25 of the 2012 SGEI Framework states:
‘under the net avoided cost methodology, the net cost necessary, or expected to be necessary, to discharge the public service obligations is calculated as the difference between the net cost for the provider of operating with the public service obligation and the net cost or profit for the same provider of operating without that obligation.
Due attention must be given to correctly assessing the costs that the service provider is expected to avoid and the revenues it is expected not to receive, in the absence of the public service obligation. The net cost calculation should assess the benefits, including intangible benefits as far as possible, to the SGEI provider.’
241    By way of comparison, according to paragraph 28 of the SGEI Framework, under the cost allocation methodology, the net cost necessary to discharge the public service obligations can be calculated as the difference between the costs and the revenues for a designated provider of fulfilling the public service obligations, as specified and estimated in the entrustment act.
242    It is in the light of those considerations that the third plea, which consists of four parts, must be examined. The first part alleges, in essence, an unreliable accounting system. The second part alleges, in essence, an unrealistic counterfactual scenario. The third and fourth parts are based, respectively and in essence, on a cost-oriented pricing policy and a partial taking into account of revenues.
243    In so far as the third and fourth parts of the third plea relate, in essence, to the determination of revenues relating to the universal postal service, it is appropriate to deal with them before the second part, concerning the counterfactual scenario.
First part of the third plea in law: unreliable accounting system in the light of paragraph 31 of the 2012 SGEI Framework
244    According to the applicant, the Commission committed a manifest error of assessment by finding merely that the second intervener’s accounting and cost allocation system allowed for an allocation of costs and revenues between activities with a sufficient level of adequacy.
245    The applicant adds that the key for the allocation of costs and revenues between the activities falling within the scope of the USO and those outside it is incorrect, which, moreover, an audit cannot reveal. This increases the suspicion of misallocation of costs and revenues, with an impact on the amendment
of the calculation of NACs during the administrative procedure.
246    Thus, in essence, by the first part of the third plea, the applicant complains that the Commission did not properly establish the existence of appropriate accounting separation between the activities falling within the USO and those outside it, in breach of paragraph 31 of the 2012 SGEI Framework.
247    In other words, the Commission should, according to the applicant, have carried out a more detailed examination of the second intervener’s accounts, referring in particular to the various categories of costs mentioned in paragraph 31 of the 2012 SGEI Framework.
248    In that regard, it should be borne in mind that paragraph 44 of the 2012 SGEI Framework provides that, ‘where an undertaking carries out activities falling both inside and outside the scope of the SGEI, the internal accounts must show separately the costs and revenues associated with the SGEI and those of the other services in line with the principles set out in paragraph 31’.
249    Moreover, paragraph 31 of the 2012 SGEI Framework, which appears in the part of that framework relating to the methodology for determining net costs based on cost allocation, provides
‘Where the undertaking also carries out activities falling outside the scope of the SGEI, the costs to be taken into consideration may cover all the direct costs necessary to discharge the public service obligations and an appropriate contribution to the indirect costs common to both the SGEI and other activities. The costs linked to any activities outside the scope of the SGEI must include all the direct costs and an appropriate contribution to the common costs. To determine the appropriate contribution to the common costs, market prices for the use of the resources, where available, can be taken as a benchmark. In the absence of such market prices, the appropriate contribution to the common costs can be determined by reference to the level of reasonable profit the undertaking is expected to make on the activities falling outside the scope of the SGEI or by other methodologies where more appropriate.’
250    The applicant’s argument calls for an assessment of whether, by merely finding, in recitals 89 to 93 of the contested decision, that in the second intervener’s accounting system, activities covered by the USO and those falling outside of it were kept separate, the Commission committed a manifest error of assessment.
251    In that regard, it should be noted that the Commission did not confine itself solely to the finding of an accounting system separating the activities falling within the discharge of the USO from those outside it.
252    In recitals 90 to 93 of the contested decision, the Commission observed that the second intervener’s accounts were based on an accounting system which had been audited in the context, inter alia, of the Czech Republic’s accession to the European Union.
253    The Commission added that the second intervener’s accounts were audited on an annual basis by an independent operator, whose reports for the years 2013 to 2016 showed compliance with the rules on accounting separation between the different activities.
254    In other words, the Commission conducted a thorough analysis of the accounting system, in particular of its reliability. It cannot be alleged that it committed a manifest error of assessment by taking it into account for the purposes of determining the net costs resulting from the discharge of the USO.
255    Consequently, the first part of the third plea must be rejected.
Third part of the third plea in law: in essence, failure to take account of the cost-orientation of the pricing policy, in breach of paragraph 25 of the 2012 SGEI Framework
256    The applicant criticises the Commission for having failed to take into account, in breach of paragraph 25 of the 2012 SGEI Framework, the fact that the zákon č. 29/2000 Sb., o poštovních službách (Law No 29/2000 on postal services, as amended) (‘the Czech Law on postal services’) already provided that the prices applied for the discharge of the USO had to be cost-oriented.
257    Furthermore, according to the applicant, although the prices charged in recent years for private individuals have increased, the discounts offered to larger senders are not cost-oriented, in breach of the Czech Law on postal services. These discounts constitute commercial incentives, so that the second intervener cannot, in essence, be allowed to claim reimbursement of them by way of compensation for net costs.
258    In any event, the applicant states that, even assuming that the NAC methodology records a net cost for the discharge of the USO, the Commission failed to examine, in the contested decision, the unfair nature of those costs, in breach of Article 7(3) of the Postal Directive.
259    In that regard, it must be pointed out that the applicant’s claims are essentially based on assertions on its part and that it does not show that the Commission infringed Article 7(3) of the Postal Directive by failing to examine whether the net costs associated with the discharge of the USO represented an unfair financial burden. Moreover, the material in the file and the contested decision show that the Commission examined whether the Czech authorities had determined the amount of compensation from the USO in the light of whether there was an unfair financial burden for the second intervener within the meaning of that provision. First of all, it is apparent from the information sent by those authorities to the Commission, in particular from the information sent on 2 October 2017, that those authorities presented to the Commission the manner in which they had determined the unfair financial burden. Next, in recitals 22 to 26 of the contested decision, the Commission described the compensation mechanism provided for in the Czech Law on postal services in order to compensate for the net costs ‘representing an unfair financial burden’. Furthermore, in recitals 144, 145 and 149 of that decision, it found that the second intervener received compensation for the part of the net costs of the USO which was considered to be an unfair burden on the undertaking, that that law provided that net costs exceeding a certain limit were not considered to be an unfair burden and that the last stage of the administrative procedure before the national regulatory authority, prior to the payment of compensation, consisted in comparing the net costs with the limit laid down by that law. Lastly, in recital 150 of that decision, the Commission noted that, given the limits imposed by that law, the reimbursement may not be sufficient to cover all the net costs incurred.
260    As to the remainder, by the third part of the third plea, the applicant submits in essence that the Commission committed a manifest error of assessment in the determination of the costs resulting from the discharge of the USO. The discharge of the USO cannot be at a loss, in so far as the Czech Law on postal services stipulates that the prices charged must be cost-oriented. In other words, if the prices charged must be cost-oriented, the discharge of the USO cannot generate net costs to be borne by the second intervener.
261    First, by its arguments, the applicant submits, in essence, that, in so far as the prices charged in the context of the discharge of the USO must be cost-oriented, a comparison between the total costs borne by the second intervener in the context of the discharge of the USO and the total revenue received in that context does not reveal the existence of a net cost for the discharge of the USO.
262    However, as is apparent from paragraph 240 above, the method which consists in calculating the net cost necessary to discharge the public service obligations
as the difference between the costs and the revenues for a designated provider of fulfilling the public service obligations is the cost allocation methodology.
263    Thus, the applicant’s line of argument is based on the premiss that, if the Commission had applied the cost allocation methodology, the second intervener would not have been entitled to compensation.
264    However, as is explained in paragraph 27 of the 2012 SGEI Framework, the Commission regards the NAC methodology as the most accurate method for determining the cost of a public service obligation. In that framework, provision is therefore made for the application of the cost allocation methodology only in the alternative, where it is impossible or inappropriate to apply the net avoided costs methodology.
265    Furthermore, the applicant has not shown that it was impossible or inappropriate to apply the NAC methodology in the present case. Moreover, as is stated in paragraph 238 above, that methodology is expressly provided for in the Postal Directive.
266    It should also be recalled that, in the contested decision, the Commission assessed the existence of net costs under the NAC methodology.
267    Secondly, it should be noted that, in the postal sector, the obligation of cost-oriented prices, possibly increased by an appropriate level of profit, must often be reconciled with other obligations imposed on universal service providers, such as the obligation to set the price of the universal service at an affordable and uniform level.
268    In high cost areas, if tariffs were to be calculated strictly based on cost, postal services would not be considered affordable. That difficulty justifies the imposition of universal service obligations and the possibility of compensating for the cost of such obligations. Those obligations are based on the premiss that, under market conditions, the services in question would not be offered in the entire territory of a Member State. The provision of some services within the universal service thus can be fulfilled only at a loss or at a net cost which falls outside normal commercial standards.
269    Thus, the need to reconcile the various obligations imposed on the universal service provider may prevent each service from being provided at a price which enables the full costs attributed to it to be covered.
270    The NAC
methodology makes it possible, on account of its characteristics, to take account of the fact that the operator responsible for the USO in the postal sector may be required to charge an affordable or even uniform price for the same USO service throughout a territory, while bearing different costs in order to provide that service in different geographical areas.
271    It should be recalled that, under the NAC methodology, the net cost necessary, or expected to be necessary, to discharge the public service obligations is calculated as the difference between the net cost for the provider of operating with the public service obligation and the net cost or profit for the same provider of operating without that obligation.
272    As is apparent from the contested decision, the NAC methodology involves developing a counterfactual scenario, that is to say, a hypothetical situation in which the provider of such a service is no longer responsible for it. That methodology consists, first of all, in assessing whether, in the absence of the USO, the operator initially responsible for that USO would change behaviour and cease to provide the loss-making services or would change the way in which the loss-making services are provided and, subsequently, in assessing the impact of that change of behaviour on its costs and revenues in order to deduct from them, and calculate, any net cost avoided.
273    In other words, it is a question of estimating the USO’s net cost by assessing the extent to which the operator responsible for the USO would increase its profits if it were not obliged to provide the universal service.
274    That is why, in the contested decision, the Commission analysed the factual scenario, namely the net cost borne by the second intervener when it discharges the USO, and then the counterfactual scenario provided by the Czech authorities, namely the net cost or profit of the second intervener if it did not discharge the USO.
275    As regards the factual scenario, the Commission found in recital 105 of the contested decision that the second intervener’s actual revenues and costs were taken into account for the years 2013 to 2016 and that an estimate had been considered for 2017. It should be noted that, to the extent that the factual scenario is based on all the revenues and costs of the second intervener, it necessarily takes account of the obligation that the prices of the universal service be cost-oriented.
276    As regards the counterfactual scenario, the Commission found that the Czech authorities had identified those elements of the universal service which the second intervener would not provide under market conditions, namely the operation of certain post offices, the delivery of letters five days a week for certain delivery rounds, and certain secondary processes.
277    Unlike the cost allocation methodology, which is based on a comparison of all the costs and revenues associated with the universal service, the NAC methodology is based, as is apparent from the contested decision, on an approach which leads, in the counterfactual scenario, to the costs of the universal service being broken down, at the very least, into various elements or segments such as post offices or delivery rounds to which, inter alia, a volume, revenues and costs must be allocated. Next, an estimate of the operator’s direct profits and losses is made for each segment or element identified. Following those operations, it is possible to calculate the net cost of the universal service, namely the total sum of the net cost savings that would be achieved in the absence of the USO.
278    In view of the foregoing, the application of the NAC methodology may lead, following the assessment of the counterfactual scenario, to the identification of a net cost that can be compensated despite the fact that, in the factual scenario, the price charged for the discharge of the USO already makes provision for the costs to be covered and for an appropriate level of profit. That is why, as the Commission stated in the defence, it is conceivable that a profitable operator would be entitled to compensation for the USO under that methodology.
279    Thus, the Commission cannot be criticised for having committed a manifest error of assessment on the basis solely of the finding that the Czech Law on postal services requires the USO to be discharged at a price with an appropriate level of profit.
280    The third part of the third plea must therefore be rejected.
Fourth part of the third plea in law: partial account was taken of revenues, in breach of paragraphs 32 and 45 of the 2012 SGEI Framework
281    The applicant submits, in essence, that, in breach of paragraphs 32 and 45 of the 2012 SGEI Framework, the Commission excluded both the subsidies received by the second intervener from Czech municipalities and the revenues from other activities in respect of which the second intervener enjoys special or exclusive rights, revenues which are contingent on that intervener’s wide network.
282    In that regard,
it should be borne in mind that the Commission calculated the net costs resulting from the discharge of the USO on the basis of the NAC methodology. That methodology calls, broadly speaking, for a comparison of the financial situation of an undertaking when it discharges the USO and when it does not do so. It is therefore necessary, for this purpose, to take into account all revenue derived from the discharge of the USO, but also the costs incurred in those two alternative scenarios.
283    Moreover, according to paragraph 32 of the 2012 SGEI Framework, ‘the revenue to be taken into account must include at least the entire revenue earned from the SGEI, as specified in the entrustment act, and the excessive profits generated from special or exclusive rights even if linked to other activities as provided in paragraph 45, regardless of whether those excessive profits are classified as State aid within the meaning of Article 107(1) [TFEU]’.
284    In the present case, however, according to the applicant, the Commission excluded from the calculation of net costs the subsidies which the second intervener would receive from Czech municipalities and revenue from non-postal services whose existence nevertheless depends on the postal network.
285    As regards, in the first place, revenue from non-postal services, it should be pointed out at the outset that the reference made by the applicant, on the basis of paragraph 45 of the 2012 SGEI Framework, to the other special or exclusive rights which the second intervener allegedly has for those services cannot be relevant.
286    In the context of the NAC methodology, as is apparent from the considerations set out in paragraph 282 of this judgment, the financial situation of the second intervener must be compared in two alternative scenarios, regardless of whether or not the revenue comes from exclusive rights.
287    In the present case, it must be held that it is apparent from the contested decision that such revenue was taken into account.
288    In that regard, a combined reading of recitals 108, 114 and 116 of the contested decision reveals, in essence, that the accounts of the second intervener taken into account in the drawing up of the two scenarios distinguish the costs and revenues for each post office, which accounts include revenue from postal and non-postal services.
289    As regards, in the second place, the subsidies which the second intervener allegedly received from Czech municipalities, it must be stated that the applicant merely refers to the existence of such subsidies without adducing any evidence of them.
290    Irrespective of that finding, it is apparent from the Commission’s and the interveners’ written pleadings that the subsidies to which the applicant refers concern financial aid to third parties responsible for administering the post offices transferred by the second intervener to municipalities.
291    In other words, the second intervener is not the recipient of those subsidies, so that the Commission cannot be criticised for not taking them into account when calculating the net costs.
292    The fourth part of the third plea must therefore be rejected.
Second part of the third plea in law: incorrect counterfactual scenario
293    The applicant submits that the Commission wrongly took the view that, in the absence of the measure at issue, the second intervener would downsize its network and reduce the frequency of its deliveries. Such a scenario cannot be explained by the second intervener’s strategic choices without disregarding the MEO test.
294    The closure of thousands of establishments is highly unlikely in so far as, apart from the fact that it has already opposed such closures in the past, the second intervener is engaged in other commercial activities which provide it with significant sources of revenue.
295    The same applies to the reduction in the frequency of deliveries of goods ordered online, both by means of letters and parcels, in that, if that were the case, the second intervener would lose significant e-commerce market share.
296    Moreover, the counterfactual scenario analysed by the Commission is, according to the applicant, different from that submitted to the Czech body responsible for determining NACs, which also undermines its reliability. While for 2013, the Commission mentions the closure of 1 076 offices, that body reported that 2 094 offices had closed down in that year.
297    In that regard, it is apparent from recitals 108 and 114 of the contested decision that the costs and revenues relating to the operation of the post offices were recorded in the accounts of each of those offices and that the second intervener allocated revenues and costs to the post offices in order to assess their profitability. It is therefore on that basis that the number of post offices which would or would not be retained in the counterfactual scenario was set and that the impact of the closure of certain post offices on the costs and revenues of the second intervener was analysed.
298    Furthermore, in recital 109 of the contested decision, the Commission found that the frequency and number of letters delivered at each individual point had been the subject of a nationwide monitoring exercise by the second intervener, that the data obtained had been included in a database and that further analysis had been performed to determine the areas for lower delivery frequency.
299    According to recital 113 of the contested decision, it is rational that, under market conditions, namely in particular in the absence of obligations relating to the density of its network and the frequency of delivery, the second intervener would change its conduct. That change would consist of closing post offices that are loss-making and maintaining those that are profitable and of changing the delivery frequency in certain geographical areas in order to reduce its costs.
300    Accordingly, the Commission did not commit a manifest error of assessment when it found, in recital 113 of the contested decision, that the counterfactual scenario developed by the Czech authorities was credible on the ground that it was based on rational assumptions which reflected the second intervener’s efforts to optimise those business decisions by reducing its costs and increasing its revenues.
301    That conclusion is not called into question by the applicant’s arguments alleging, in essence, that the closure of post offices or the reduction in the frequency of delivery would have an impact on the second intervener’s revenue.
302    As the Commission explained in recital 113 of the contested decision, and as is apparent from recital 116 of that decision, the negative impact on demand associated with the reduction of the postal network was taken into consideration when the counterfactual scenario was developed. The Czech authorities took into account the fact that the closure of certain post offices would lead to a change in demand and would influence both the costs and revenues associated
with postal and non-postal services. Furthermore, as regards the impact of a reduction in the frequency of delivery in certain areas, it is apparent from recitals 109 and 119 of that decision that the reduction would apply only to letters and not to parcels, since the latter are delivered through a different network.
303    Therefore, irrespective of the debate on the actual number of post office closures envisaged under the counterfactual scenario, the second part of the third plea cannot succeed, so that it must be rejected, as must, therefore, that plea as a whole.
The fourth plea in law
304    In the context of the fourth plea in law of the action, the applicant claims breach of paragraph 25 of the 2012 SGEI Framework, read in conjunction with Part B of Annex I to the Postal Directive.
305    The applicant criticises the Commission for having taken into account, for the purposes of calculating the net costs, only the intangible benefits generated by the discharge of the USO, without investigating whether other commercial advantages could be relevant to that end.
306    This is true in particular as regards the second intervener’s ability to take advantage of its extended network for activities other than its competitive activities, such as, inter alia, its banking, insurance or lottery retail sale activities.
307    The applicant adds that, while the second intervener’s competitors provide their services throughout the territory, they do so primarily because of the second intervener’s
network which they use.
308    In that regard, it should be recalled that, as provided in Part B of Annex I to the Postal Directive, ‘the calculation [of the net costs] shall take into account all other relevant elements, including any intangible and market benefits which accrue to a postal service provider designated to provide universal service, the entitlement to a reasonable profit and incentives for cost efficiency. Due attention is to be given to correctly assessing the costs that any designated universal service provider would have chosen to avoid, had there been no universal service obligation. The net cost calculation should assess the benefits, including intangible benefits, to the universal service operator’.
309    In the present case, the Commission identified four intangible benefits linked to the discharge of the USO, namely, in recital 136 of the contested decision,
enhancement of brand value, exclusive sale of postage stamps and philately items, enhanced advertising effect and benefit from VAT exemption, which the applicant does not dispute.
310    On the other hand, the applicant complains that the Commission disregarded, as an intangible benefit, the existence of a dense network and the second intervener’s ubiquity.
311    In that regard, and as the Commission observed in recital 128 of the contested decision, typical intangible benefits in the postal sector include ubiquity and the advantages associated with an extensive network.
312    However, the Commission cannot have infringed paragraph 25 of the 2012 SGEI Framework, read in conjunction with Part B of Annex I to the Postal Directive, by failing to take that aspect into account, in that, as the Commission rightly observed in recital 136 of the contested decision, the second intervener’s competitors are also active in the whole country without however being required to maintain an extensive network.
313    Thus, in the circumstances of the present case, the second intervener’s ubiquity on the market cannot be regarded as an intangible benefit resulting from the obligation, under the discharge of the USO, to maintain an extensive network.
314    The applicant also complains that the Commission did not regard as falling within the category of intangible and market benefits the fact that the second intervener took advantage of its extensive network for its competitive activities.
315    However, such a benefit cannot be regarded as an intangible or market benefit, within the meaning of Part B of Annex I to the Postal Directive, which accrued to the second intervener in discharging the USO.
316    The provision of non-postal services through the postal network is not directly related to the discharge of the USO.
317    Thus, the Commission could not have infringed paragraph 25 of the 2012 SGEI Framework and Part B of Annex I to the Postal Directive.
318    The fourth plea in law must therefore be rejected.
The fifth plea in law
319    In the context of the fifth plea in law of the action, the applicant claims breach of Section 2.9 of the 2012 SGEI Framework (first part) and a breach of the obligation to state reasons (second part).
First part of the fifth plea in law: breach of Section 2.9 of the 2012 SGEI Framework
320    According to the applicant, the Commission erred in law by allowing the measure at issue without it being subject to conditions or commitments on the part of the Czech Republic with a view to mitigating the serious distortions of competition to which that measure gives rise.
321    The applicant states that it expressed serious concerns about a practice of cross-subsidising services where the second intervener is exposed to competition through the income from the universal postal service.
322    In this respect, it should be recalled that, pursuant to paragraphs 52 and 53 of the 2012 SGEI Framework which appear in Section 2.9 of that framework, if, in some exceptional circumstances, serious competition distortions in the internal market could remain unaddressed and the aid could affect trade to such an extent as would be contrary to the interest of the Union, the Commission examines whether such distortions can be mitigated by requiring conditions or requesting commitments from the Member State.
323    In the present case, however, the Commission could not have failed to fulfil its obligations by not requiring such conditions or by not requesting commitments from the Czech Republic.
324    The Commission removed the doubts as to whether there was a distortion of competition resulting from overcompensation of the net costs and ultimately found the measure at issue to be compatible for the purposes of Article 106(2) TFEU.
325    Thus, in the absence of any doubt as to an overcompensation of the net costs and therefore as to the existence of a distortion of competition, the Commission was a fortiori under no obligation to impose conditions or commitments on the Czech Republic, as such conditions or commitments can be envisaged only where there are serious distortions of competition.
326    Moreover, the reasons put forward by the applicant for the purpose of requiring conditions or requesting commitments from the Czech Republic are the same as those which were intended to demonstrate an overcompensation of the net costs. However, as is apparent from the response to the third and fourth pleas in law, the applicant’s arguments, alleging, in essence, overcompensation, were rejected.
327    In any event, it should be added that, in accordance with paragraph 54 of the 2012 SGEI Framework which appears under Section 2.9 of that framework, ‘serious competition distortions such as to be contrary to the interests of the Union are only expected to occur in exceptional circumstances’ and that ‘the Commission will restrict its attention to those distortions where the aid has significant adverse effects on other Member States and the functioning of the internal market, for example, because they deny undertakings in important sectors of the economy the possibility to achieve the scale of operations necessary to operate efficiently’.
328    The circumstances of the present case cannot be regarded as exceptional circumstances, within the meaning of paragraph 54 of the 2012 SGEI Framework.
329    That is all the more so since it is apparent from recitals 143 to 151 of the contested decision that the Commission checked sufficiently that any risk of overcompensation of the provision of the USO was averted.
330    In particular, in recital 151 of the contested decision, the Commission stated that the net cost of the USO for the period 2013-2017 was CZK 4 289 million and that the maximum amount of compensation was CZK 2 600 million. Similarly, it indicated that it considered that the national regulatory authority would perform ex post checks in order to detect overcompensation.
331    In the light of those circumstances, the Commission was therefore right to find, in recital 153 of the contested decision, that, in the present case, there were no reasons to require conditions or to request commitments from the
Czech Republic under paragraph 51 of the 2012 SGEI Framework.
332    Thus, the Commission cannot be accused of having infringed Section 2.9 of the 2012 SGEI Framework.
333    The first part of the fifth plea must therefore be rejected.
Second part of the fifth plea in law: breach of the obligation to state reasons
334    In the second part of the fifth plea, the applicant alleges breach of the obligation to state reasons.
335    According to the applicant, even if there was no obligation on the Commission in the present case to impose additional requirements necessary to ensure that the development of trade is not affected to an extent contrary to the interests of the Union, it follows both from the second intervener’s market share and its behaviour on the market that the Commission was obliged to state the concrete reasons why such additional requirements, within the meaning of Section 2.9 of the 2012 SGEI Framework, were not necessary. Accordingly, by limiting itself to the reasons given in recital 153 of the contested decision, the Commission failed to comply with its duty to state reasons for its decision.
336    In that regard, it should be noted that it is apparent from paragraphs 51 and 52 of the 2012 SGEI Framework that recourse to additional requirements is exceptional.
337    Thus, since the Commission stated unequivocally in the contested decision that the aid was compatible, such a statement implies that no exceptional circumstances were established.
338    Accordingly, in order to reject the second part of the fifth plea alleging breach of the obligation to state reasons, it is sufficient to observe that the Commission cannot be required to set out the reasons why it did not impose additional requirements, since it was not required to impose such requirements.
339    Consequently, the second part of the fifth plea, and therefore the fifth plea as a whole, must be rejected.
340    Accordingly, the action must be dismissed in its entirety, without it being necessary to rule on its admissibility in so far as the applicant disputes the merits of the contested decision.
Costs
341    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered 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 bear its own costs and to pay those of the Commission, in accordance with the form of order sought by the latter.
342    In accordance with Article 138(1) of the Rules of Procedure, Member States which have intervened in proceedings are to bear their own costs. The Czech Republic shall, therefore, bear the costs which it has incurred. The other intervener shall also bear its own costs, pursuant to Article 138(3) of those rules.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders První novinová společnost a.s., successor in law to Mediaservis s. r. o., to bear its own costs and to pay those incurred by the European Commission;
3.      Orders the Czech Republic and Česká pošta s. p. to bear their own costs.
da Silva Passos
Valančius
Truchot
Delivered in open court in Luxembourg on 15 October 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.