JUDGMENT OF THE GENERAL COURT (First Chamber)
3 September 2025 (*)
( State aid – Postal sector – Compensation for net costs arising from universal service obligations – Decision declaring the aid compatible with the internal market – Article 106(2) TFEU – SGEI Framework – Accounting separation of activities falling within the universal service from other activities – Cross-subsidisation – Counterfactual scenario )
In Case T‑784/22,
Zásilkovna s. r. o., established in Prague (Czech Republic), represented by R. Kubáč, lawyer,
applicant,
supported by
Brink’s Cash Solutions (CZ) a.s., established in Prague, represented by R. Kubáč,
intervener,
v
European Commission, represented by J. Carpi Badía and L. Nicolae, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, J. Vláčil and L. Halajová, acting as Agents
and by
Česká pošta s. p., established in Prague, represented by P. Kadlec and J. Kocmánek, lawyers,
interveners,
THE GENERAL COURT (First Chamber),
composed of R. Mastroianni, President, I. Gâlea (Rapporteur) and S.L. Kalėda, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure, in particular the orders of 15 November 2023 and of 19 June 2024 concerning the applicant’s requests for confidential treatment vis-à-vis the Czech Republic and Česká pošta,
further to the hearing on 26 February 2025,
having regard to the order of 12 March 2025 concerning the applicant’s request for confidential treatment vis-à-vis the Czech Republic and Česká pošta,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Zásilkovna s. r. o., seeks the annulment of Commission Decision (EU) 2023/232 of 25 July 2022 on State aid SA.55208 (2020/C) (ex 2022/NN) implemented by Czechia for Czech Post (OJ 2023 L 32, p. 68) (‘the contested decision’).
I.      Background to the dispute
2        The applicant is a company established in the Czech Republic which is active in the parcel delivery sector, especially in the context of e-commerce.
3        By decision of 22 February 2013, the Český telekomunikační úřad (the Czech telecommunications regulatory authority) designated the second intervener in support of the Commission, Česká pošta s. p., the incumbent postal operator in the Czech Republic, as universal postal service provider for the period from 2013 to 2017.
4        That designation caused the Czech Republic to grant compensation to Česká pošta in return for providing the universal service obligation (‘the USO’). On 19 February 2018, the European Commission adopted Decision C(2018) 753 final on State aid SA.45281 (2017/N) and SA.44859 (2016/FC) – State compensations granted to Česká pošta for the provision of the universal postal service over the period 2013-2017 (‘the 2018 decision’), by which it found, following the preliminary examination stage, that that compensation constituted State aid compatible with the internal market, in accordance with Article 106(2) TFEU. By judgment of 15 October 2020, První novinová společnost v Commission (T‑316/18, not published, EU:T:2020:489), the General Court dismissed the action for annulment brought against the 2018 decision by the company Mediaservis s. r. o., a private postal service provider operating in the Czech Republic, which has since been renamed První novinová společnost a.s. (‘PNS’).
5        At the same time, by decision of 12 December 2017, the Czech telecommunications regulatory authority once more designated Česká pošta as universal postal service provider, for the period from 1 January 2018 to 31 December 2022.
6        Under Paragraph 3(1) of the zákon č. 29/2000 Sb., o poštovních službách a o změně některých zákonů, ve znění pozdějších předpisů (Law No 29/2000 on postal services and amending certain laws, as amended) (‘the Czech Postal Services Act’), the USO comprises in particular the following services:
–        the delivery of letter postal items up to 2 kilograms domestically and to abroad;
–        the delivery of parcel postal items up to 10 kilograms domestically and to abroad;
–        the delivery of registered items up to 2 kilograms domestically and to abroad;
–        the delivery of insured items up to 10 kilograms domestically and to abroad;
–        postal money orders;
–        a free postal service for blind and partially sighted persons, for items weighing up to 7 kilograms.
7        In addition, Article 3(2) of the Czech Postal Services Act requires those services to be available every business day throughout the whole of the territory of the Czech Republic.
8        On 18 January 2018, the Czech authorities pre-notified compensation granted to Česká pošta for the provision of the USO for the period from 2018 to 2022. Following discussions with the Commission concerning the methodology used to calculate the net avoided cost (‘NAC’) in order to determine the amount of that compensation, the Czech authorities withdrew their pre-notification. On 20 August 2019, the Czech authorities made a new pre-notification to the Commission of a new compensation measure for the provision of the USO (‘the compensation at issue’), amended in particular as regards the calculation of the NAC.
9        The amount of the compensation at issue was capped at 1 500 million Czech koruna (CZK) (around EUR 55 million) per year. The Czech authorities had envisaged that a part of the amount of the compensation at issue would be paid initially, based on half of the net actual cost incurred in respect of the USO during the year preceding the financial year in question, and that the remainder would be paid in the year following that financial year in question based on actual costs, with the Czech telecommunications regulator verifying that the total amount paid did not exceed CZK 1 500 million for a particular financial year.
10      On 8 November 2019, the applicant lodged a complaint with the Commission, arguing that the compensation at issue constituted State aid which was incompatible with the internal market.
11      In its complaint, the applicant maintained that that compensation infringed the rules on State aid in two respects. It argued, first, that the amount of the compensation at issue exceeded what was necessary to cover the NAC generated by the USO, both for the period from 2013 to 2017 and the period from 2018 to 2022, and, second, that Česká pošta financed its commercial activities by means of that compensation, in breach of the prohibition on cross-subsidisation.
12      On 22 November 2019, PNS also lodged a complaint with the Commission concerning alleged State aid granted to Česká pošta by means of the compensation at issue.
13      On 28 January 2020, the Czech authorities notified the Commission of the compensation at issue.
14      On 23 June 2020, the Commission adopted Decision C(2020) 4090 final on State aid SA.55208 (2020/C) (ex 2020/N) – Česká pošta USO compensation for the period 2018-2022, SA.55497 (2019/FC) and SA.55686 (2019/FC) – Complaints regarding alleged incompatible State aid to Česká pošta (‘the 2020 opening decision’).
15      By that decision, the Commission initiated the procedure laid down in Article 108(2) TFEU in respect of the compensation at issue. It found that the compensation at issue constituted State aid within the meaning of Article 107(1) TFEU and that, at that stage, there were doubts as to its compatibility with the internal market. In particular, the Commission expressed its concerns (i) regarding whether there was a genuine service of general economic interest (SGEI), since the USO entrusted to Česká pošta included services, such as postal money orders, which went beyond the universal service as defined in Article 3 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), and (ii) regarding the counterfactual scenario proposed by the Czech authorities for the calculation of the NAC over the period between 1998 and 2022 (‘the 2018-2022 counterfactual scenario’) as regards a reduction in the number of post offices and the frequency of delivery which Česká pošta would offer in the absence of the USO. From that, the Commission concluded that the risk of overcompensation could not be excluded, since it was possible that the amount of the compensation at issue exceeded the NAC.
16      By contrast, the Commission considered that the other measures mentioned in the complaints by the applicant and PNS did not constitute State aid and that it would therefore take account of those measures only to the extent they would have an impact on the amount of the compensation at issue.
17      On 2 October 2020, the applicant submitted its comments to the Commission in the formal investigation procedure. By letter of 9 July 2021, the Commission informed the applicant that the comments and information which it had submitted to it in the context of the complaint registered under number SA.55686 (2019/FC) would be examined in the formal investigation procedure under number SA.55208 (2020/C) and that Case SA.55686 (2019/FC) would therefore be closed. The Commission also informed the applicant that only the comments and information concerning the aspects of the compensation at issue in respect of which it had expressed doubts in the 2020 opening decision would be examined in the context of Case SA.55208 (2020/C).
18      On 31 August 2021, in response to a request from the applicant, the Commission clarified that its letter of 9 July 2021 was merely to inform the applicant of the new case number and that it had no implication on the substance of the case. In addition, the Commission stated that, in the final decision, it would address the main points raised in the applicant’s complaint and would take into account the applicant’s comments on the 2020 opening decision.
19      On 9 September 2021, the applicant brought an action seeking to have annulled the Commission’s letters of 9 July and 31 August 2021 referred to, respectively, in paragraphs 17 and 18 above. By order of 1 June 2022, Zásilkovna v Commission (T‑585/21, not published, EU:T:2022:338), the General Court dismissed that action as being inadmissible, on the ground that those letters did not constitute challengeable acts in that they did not entail rejection of the applicant’s complaint, but merely informed the applicant of the grouping together of the procedure relating to that complaint with the procedure relating to the notification of the compensation at issue.
20      On 25 July 2022, the Commission adopted the contested decision.
21      In that decision, the Commission concluded that the compensation at issue was compatible with the internal market, in accordance with Article 106(2) TFEU and the Communication from the Commission on the European Union framework for State aid in the form of public service compensation (2011) (OJ 2012 C 8, p. 15; ‘the SGEI Framework’).
22      In that regard, first, the Commission found that the Czech authorities had provided sufficient information to conclude that Česká pošta had been entrusted with a genuine SGEI which could not be provided by the market itself.
23      Second, it found that the NAC method adopted by the Czech authorities was appropriate and had been applied in a sufficiently transparent manner.
24      Third, the Commission found that the period of five years chosen by the Czech authorities for the provision of the USO was sufficiently justified by the depreciation periods of the most significant assets of Česká pošta.
25      Fourth, the Commission decided that the compensation at issue complied with the rules on public procurement and transparency, particularly as regards the accounting separation between USO and non-USO activities, provided for in Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17) and in Directive 97/67. The Commission thereby ruled out there being cross-subsidisation resulting from a misallocation of Česká pošta’s costs.
26      Fifth, the Commission concluded that the compensation at issue was proportionate, in that it was based on a plausible counterfactual scenario and the amount of the compensation did not exceed the net cost resulting from implementing the USO, including a reasonable profit. In particular, it found the reduction in the number of post offices and in delivery frequency envisaged in the 2018-2022 counterfactual scenario to be plausible.
II.    Forms of order sought
27      The applicant, supported by Brink’s Cash Solutions (CZ) a.s., claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
28      The Commission, supported by the Czech Republic and Česká pošta, contends that the Court should:
–        dismiss the action as being inadmissible or, in the alternative, as being unfounded;
–        order the applicant to pay the costs.
III. Law
A.      Admissibility
29      Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission, supported on that point by the Czech Republic and Česká pošta, contests the admissibility of the action, on the ground that the applicant is not individually concerned by the contested decision and therefore lacks standing to challenge it. In addition, in its comments on the statement in intervention by Brink’s Cash Solutions (CZ), the Commission submitted that that statement was inadmissible.
30      In the present case, the Court considers it appropriate, in the interests of the sound administration of justice and procedural economy, to begin by examining the pleas in law put forward by the applicant challenging the lawfulness of the contested decision, without first ruling on the admissibility of the present action or on the admissibility of the statement in intervention by Brink’s Cash Solutions (CZ) (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).
B.      Substance
31      In support of its action, the applicant raises, in essence, three pleas in law, alleging, first, a breach of the obligation to state reasons; second, a manifest error of assessment of the compatibility of the compensation at issue with the internal market and third, a manifest error of assessment and a failure to examine whether there was cross-subsidisation prior to the compensation at issue.
1.      The first plea: breach of the obligation to state reasons
32      By its first plea, the applicant submits that the contested decision is not duly reasoned.
33      First, in the view of the applicant, the Commission did not specifically and concretely address the accounting allocation of Česká pošta’s costs, depending on whether they related to USO or non-USO activities, nor the calculation of those costs. Yet according to the applicant, that information was necessary to verify the NAC.
34      Second, the Commission ignored the applicant’s arguments regarding cross-subsidisation between Česká pošta’s activities, and in particular the arguments relating to the fact that Česká pošta’s commercial activities were priced below the cost of those activities.
35      Third, the applicant complains that the Commission relied on the formal accounting separation between Česká pošta’s USO and non-USO activities, and failed to take account of the fact that that company had been offering its commercial services at below-cost prices.
36      Fourth, the applicant criticises the Commission for having taken account of its argument that the USO can be performed by private operators on a commercial basis only within the assessment of whether there was a genuine SGEI, and not within the assessment of whether Česká pošta was being overcompensated.
37      Fifth, according to the applicant, the Commission did not explain the length of the USO, and in particular the depreciation of which assets it considered to be the most significant in determining such a duration.
38      Sixth, the applicant submits that the Commission has not stated the reasons for the reduction in the number of post offices in the 2018-2022 counterfactual scenario, that reduction being intended to justify the tripling of the amount of the compensation at issue compared with that granted for the period from 2013 to 2017.
39      Seventh, the applicant complains that the Commission responded to its argument that Česká pošta had financed its commercial activities using the compensation at issue by simply stating that none of the State aid rules prevented it, which is incorrect and contrary to its previous case-law.
40      The Commission disputes the applicant’s line of argument and, in particular, the admissibility of the arguments summarised in paragraphs 36 to 38 above, on the ground that they were submitted for the first time in the reply and are, therefore, out of time.
41      As a preliminary point, it should be recalled that it is settled case-law that the statement of reasons being lacking or inadequate constitutes an infringement of an essential procedural requirement within the meaning of Article 263 TFEU and involves a matter of public policy which may, and even must, be raised by the EU Courts of their own motion and which, consequently, may be raised by the parties at any stage of the proceedings (see judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 93 and the case-law cited). Consequently, the plea of inadmissibility raised by the Commission concerning the arguments put forward by the applicant for the first time in the reply, in the relation to the first plea, must be rejected.
42      As regards the substance of the first plea, first of all, it must be recalled that, in accordance with the Court’s settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 that article 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 (see judgment of 23 November 2023, Ryanair and Airport Marketing Services, C‑758/21 P, EU:C:2023:917, paragraph 95 and the case-law cited).
43      Next, the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in the light of its obligations under EU law, for granting the aid. Accordingly, in that procedure, interested parties other than the Member State concerned cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to that Member State (see judgment of 29 July 2024, Koiviston Auto Helsinki v Commission, C‑697/22 P, EU:C:2024:641, paragraph 47 and the case-law cited). Also, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned, provided that it sets out the facts and legal considerations of fundamental importance in the context of the decision (see, to that effect, judgment of 24 September 2019, Fortischem v Commission, T‑121/15, EU:T:2019:684, paragraph 41 and the case-law cited).
44      Lastly, the obligation to state reasons laid down in Article 296 TFEU is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, but not the statement of reasons in that decision, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 10 September 2024, Commission v Ireland and Others, C‑465/20 P, EU:C:2024:724, paragraphs 389 and 390 and the case-law cited).
45      In the present case, in the first place, as regards the requirement for accounting separation between the costs and revenues associated with the USO and the costs and revenues which are not associated with it, the Commission examined whether Česká pošta complied with such a requirement in Section 8.2.4 of the contested decision. In recitals 167 to 170 of that decision, it first recalled the relevant provisions of Czech law concerning the allocation of the costs of the universal service provider, before noting that the allocation of costs within Česká pošta was based on the ‘ABC’ (Activity Based Costing) method and that such a methodology had been approved by the Czech communications regulatory authority. It then described that method, stating that Česká pošta’s costs were spread over 5 470 cost centres of which it gave examples, before being allocated according to each activity. It then stated that the costs which could not be allocated in that way were to be allocated according to pre-approved rules, in proportion to the allocation of direct costs, that is to say, allocated according to the activities. Lastly, the Commission stated that the separation of Česká pošta’s accounts was subject to audit by an independent auditor, whose reports it had been able to consult, which reports certified that such separation for 2018, 2019 and 2020 complied with the rules in force.
46      Consequently, the Commission clearly disclosed the reasoning on the basis of which it concluded that the accounting allocation of Česká pošta’s costs and revenues was appropriate, there being no need to set out the figures resulting from that accounting separation. In any event, in paragraph 85 of the 2020 opening decision, which forms part of the background to the contested decision, the Commission set out a table showing Česká pošta’s costs and operating revenues allocated to the USO between 2014 and 2018 and those forecast for between 2019 and 2022, with figures replaced by ranges.
47      As regards the complaint that the Commission relied exclusively on the formal accounting separation carried out by Česká pošta, and failed to take account of its below-cost pricing of its commercial activities, that complaint relates to the substance of the contested decision and not to the appropriateness of the statement of reasons for that decision, in accordance with the case-law referred to in paragraph 44 above, and will be examined in the context of the second plea.
48      Similarly, the argument by which the applicant and Brink’s Cash Solutions (CZ) complain that the Commission failed to assess the alleged cross-subsidisation of Česká pošta’s commercial activities by means of public service compensation received before the compensation at issue does not fall within the scope of the statement of reasons for the contested decision, but rather whether the Commission’s examination was diligent, which will be examined in the context of the third plea.
49      In the second place, as regards the possibility of discharging the USO on a commercial basis, the Commission examined that subject in Section 8.2.1 of the contested decision, which deals with the question whether the Czech authorities had entrusted Česká pošta with a genuine SGEI. In that regard, first, it considered that the last review carried out by those authorities before the period concerned by the compensation at issue, that is to say in 2016, had concluded that there was a market failure in respect of such services, without the applicant or PNS having objected to that conclusion at the time (recital 149 of the contested decision). Second, it considered that the Czech authorities’ choice to review the conditions of the postal services market every five years fell within their broad discretion as regards the management and provision of SGEIs, with the result that it was not relevant to take account of the situation on that market during the period after that concerned by the compensation at issue (recital 150 of the contested decision).
50      Furthermore, the applicant errs in complaining that the Commission took account of its argument on the possibility of providing the USO on a commercial basis only in its examination of whether that obligation constituted a genuine SGEI, and not at the stage of assessing whether there was overcompensation. First, in accordance with the case-law referred to in paragraph 43 above, the Commission was not obliged to adopt a specific position on an argument put forward by a complainant such as the applicant. Second, the applicant does not explain why its argument concerning the ability of private operators to provide the USO ought to have been taken into account at the stage of examining whether there was overcompensation. Moreover, it is apparent from paragraph 14 of its comments submitted during the formal investigation procedure that it had clearly linked such an argument to the question whether the USO ought to be classified as an SGEI. Third, in any event, it must be noted that, in recital 205 of the contested decision, which concludes the assessment of whether the 2018-2022 counterfactual scenario was plausible, the Commission expressly assessed whether private operators were able to provide the USO, stating that what the applicant presented as ‘post offices’ were sales points and pick-up points which did not meet the requirements of the USO.
51      It follows that the applicant was clearly in a position to understand the reasons why the Commission had concluded that the market was failing to ensure the USO.
52      In the third place, in Section 8.2.3 of the contested decision, the Commission examined the duration of the USO entrustment period. In that regard, after reproducing a table of the depreciation period for Česká pošta’s assets presented as ‘required to provide the USO’, it concluded that the five-year period of entrustment applied by the Czech authorities was appropriate in the light of paragraph 17 of the SGEI Framework, since most of those assets had a depreciation period of more than five years. Consequently, the Commission disclosed in a sufficiently specific manner the reasons why it concluded that the duration of the USO entrustment period was appropriate, thereby enabling the applicant to challenge such an assessment.
53      In the fourth place, it is apparent from recitals 193, 196, 201, 205 and 206 of the contested decision that the Commission found the reduction in the number of post offices which Česká pošta would operate in the 2018-2022 counterfactual scenario to be plausible, on the ground, in essence, that that corresponded to the least profitable post offices being abandoned, some of which would become pick-up points in line with market trends, while taking into account the fact that the holder of the postal licence is a national postal service provider, ensuring that its services are available throughout the country.
54      It was therefore possible for the applicant to understand the reasons justifying the reduction in the number of post offices which Česká pošta would operate if Česká pošta were not entrusted with the USO for the period covered by the compensation at issue, that is to say, from 2018 to 2022. In addition, although it was not obliged to adopt a position specifically in that regard (see paragraph 43 above), the Commission also responded, in recital 198 of the contested decision, to an argument put forward in PNS’ complaint, setting out the reasons for the significant decrease in the number of post offices in the 2018-2022 counterfactual scenario justifying the compensation at issue, as compared with the counterfactual scenario which was used to justify the compensation granted for the discharge of the USO between 2013 and 2017 (‘the 2013-2017 counterfactual scenario’). In essence, the Commission concluded that, first, the Member States were not required to use the same counterfactual scenario over two successive periods concerned by the discharge of the same SGEI and, second, the voluntary retention of a number of post offices not required by the OSU to be operated in the counterfactual scenario concerning the period from 2013 to 2017 could be explained by the fact that a political decision to increase the number of post offices required by the USO to be operated by the universal service provider (‘the obligatory post offices’) was imminent.
55      The contested decision is therefore not vitiated by an inadequate statement of reasons on that point.
56      In the fifth place, by its argument that the Commission erred and acted contrary to its decision-making practice in asserting that the compensation at issue could be used for purposes other than the USO, the applicant is seeking to call into question the substance of the contested decision, and not its statement of reasons. Consequently, in accordance with the case-law cited in paragraph 44 above, such an argument is not relevant in the context of the present plea, and will be examined in the context of the second plea.
57      In the light of the foregoing, it must be concluded that, contrary to the applicant’s assertions, the contested decision is not vitiated by an inadequate statement of reasons.
58      The first plea must, consequently, be rejected.
2.      The second plea: manifest error of assessment of the compatibility of the compensation at issue with the internal market
59      By its second plea, the applicant submits that the Commission made a manifest error of assessment when it concluded that the compensation at issue was compatible with the internal market. In essence, the second plea comprises four parts: (i) the misallocation of Česká pošta’s costs, (ii) the possibility of performing the USO on a purely commercial basis, (iii) the lack of substantiation for the assets used to determine the duration of the USO entrustment are unfounded and (iv) the 2018-2012 counterfactual scenario is unrealistic.
(a)    Preliminary observations
60      Article 106(2) TFEU provides (i) that undertakings entrusted with the operation of SGEIs are to be subject to the rules contained in the Treaties and, 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 (ii) that the development of trade must not be affected to such an extent as would be contrary to the interests of the European Union.
61      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 social policy with the EU’s interest in ensuring compliance with the rules on competition and preserving the unity of the internal market. What Article 106(2) TFEU seeks to prevent, though 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 (see judgment of 5 May 2021, ITD and Danske Fragtmænd v Commission, T‑561/18, EU:T:2021:240, paragraph 107 and the case-law cited), taking into account a reasonable profit.
62      Thus, as part of the review of proportionality inherent in Article 106(2) TFEU, the Commission is required to compare the amount of the planned State aid with the net costs of the public service missions performed by the beneficiary of that aid (see judgment of 5 May 2021, ITD and Danske Fragtmænd v Commission, T‑561/18, EU:T:2021:240, paragraph 108 and the case-law cited).
63      Therefore, in order to clarify the conditions under which public service compensation constituting State aid may be regarded as compatible with the internal market under Article 106(2) TFEU, the Commission adopted the SGEI Framework, which contains, inter alia, rules on the arrangements for granting that compensation and for determining the amount thereof.
64      Lastly, it is apparent from the case-law that the Member States enjoy a broad discretion in determining the conditions for the implementation of an SGEI, including in assessing the additional costs incurred in discharging it, which depends on complex economic facts, with the result that the review carried out by the Commission is limited to determining whether there has been a manifest error (see, to that effect, judgment of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 220 and the case-law cited). Consequently, the Court’s review of the substance of the Commission’s assessment in that regard must also observe the same limit and must be confined to ascertaining whether the Commission acted correctly in finding or rejecting the existence of a manifest error on the part of the Member State (see, to that effect, judgment of 15 November 2018, Stichting Woonlinie and Others v Commission, T‑202/10 RENV II and T‑203/10 RENV II, EU:T:2018:795, paragraph 82 and the case-law cited).
65      In that regard, in order to establish that the Commission made a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the factual assessments made in the decision at issue implausible (see judgment of 19 September 2019, FIH Holding and FIH v Commission, T‑386/14 RENV, not published, EU:T:2019:623, paragraph 69 and the case-law cited). Acts of the EU institutions are in principle presumed to be lawful until such time as they are annulled or withdrawn (see judgment of 14 March 2024, Commission v United Kingdom (Judgment of the Supreme Court), C‑516/22, EU:C:2024:231, paragraph 99 and the case-law cited), and it is for parties seeking their annulment to rebut that presumption by producing evidence to cast doubt on the assessments made by the defendant institution (judgments of 6 October 1999, Salomon v Commission, T‑123/97, EU:T:1999:245, paragraph 46, and of 16 March 2000, Astilleros Zamacona v Commission, T‑72/98, EU:T:2000:79, paragraph 56).
66      The various parts of the second plea must be examined in the light of the foregoing considerations.
(b)    The first part of the second plea: the allocation of Česká pošta’s costs
67      The applicant, supported by Brink’s Cash Solutions (CZ), maintains that the Commission made a manifest error in concluding that the accounting allocation of Česká pošta’s costs was appropriate and in taking that into account in order to find that there was no cross-subsidisation of Česká pošta’s commercial activities by means of the compensation at issue.
68      According to the applicant, the Commission relied on a purely formal accounting separation of the various activities of Česká pošta, whereas Česká pošta allocates to the USO all the common costs relating to the USO activities and its non-USO commercial activities (‘the common costs’), such as its pick-up point delivery service known as Balíkovna (‘the Balíkovna service’), qualified timestamps or cash-in-transit services. That approach enabled Česká pošta to cross-subsidise its commercial activities and thus to price them below the cost of those activities.
69      The applicant puts forward a number of factors in support of its argument that Česká pošta did not correctly allocate the costs it incurred, thereby enabling it to use the compensation at issue to cross-subsidise its commercial activities.
70      First, as part of the Balíkovna service, Česká pošta offers parcel delivery to pick-up points at prices significantly below the prices of delivery to post offices under the USO. In that regard, it is not possible to seek compensation for the USO being loss-making while at the same time pricing non-USO activities at very low levels. In addition, the applicant maintains that it, as well as other competitors of Česká pošta, offer pick-up point delivery services at significantly higher prices than the prices of the Balíkovna service.
71      Second, in the context of public procurement contracts for qualified timestamps, Česká pošta’s tenders barely cover the costs associated with such services.
72      Third, Brink’s Cash Solutions (CZ) adds that Česká pošta’s prices on the competitive market for cash-in-transit services are predatory and that those prices are explained by the fact that there is overcompensation via the USO, due to the use of infrastructure which is also used to discharge the USO.
73      Fourth, the applicant submits that, despite mismanagement which resulted in very significant losses, Česká pošta decided to purchase a major part of the business of PNS, which was itself loss-making and the only competitor of Česká pošta capable of providing the USO for the period from 2023 to 2027. That transaction can only be explained by the granting of the compensation at issue and cannot be justified as being economically rational. In that regard, the applicant maintains that Česká pošta ought not to have allocated the over-compensation at issue for purposes other than the USO, and in particular for transactions which a well-run undertaking would not have implemented.
74      The applicant and Brink’s Cash Solutions (CZ) therefore conclude that the Commission misapplied its Decision 2012/21/EU of 20 December 2011 on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ 2012 L 7, p. 3), which lays down the principles for allocating common costs, in two respects. First, Article 5(3)(c) of that decision prohibits all the common costs being allocated to the USO. Second, pursuant to Article 5(4) of the same decision, the profits generated by the non-USO commercial activities of Česká pošta ought to have been taken into consideration in the calculation of the NAC.
75      The Commission, the Czech Republic and Česká pošta dispute the applicant’s line of argument.
76      As a preliminary point, it should be recalled that the proper application of EU law assumes a determination of whether the revenue from a lawfully subsidised activity does not serve to cross-finance other competitive activities carried out by the same undertaking (see, to that effect, judgment of 14 July 2016, Germany v Commission, T‑143/12, EU:T:2016:406, paragraph 75 and the case-law cited).
77      In that regard, where the same undertaking is entrusted both with SGEI activities and non-SGEI activities, keeping separate accounts for its various activities makes it possible, in principle, to be satisfied that its economic activities are not cross-subsidised by means of public funds from which it benefits by virtue of its SGEI activities (see, to that effect and by analogy, judgments of 10 June 2010, Fallimento Traghetti del Mediterraneo, C‑140/09, EU:C:2010:335, paragraph 50, and of 27 February 1997, FFSA and Others v Commission, T‑106/95, EU:T:1997:23, paragraph 185).
78      Therefore, first, in paragraph 18 of the SGEI Framework, the Commission made the compatibility with the internal market of public service compensation under Article 106(2) TFEU conditional on compliance with the provisions of Directive 2006/111, Article 4(1)(a) and (b) of which, read in conjunction with Article 2(d) thereof, provides, in essence, that undertakings entrusted with an SGEI and receiving public compensation for that purpose must keep separate internal accounts according to their various activities and that they must correctly allocate and apportion the costs and revenues on the basis of consistently applied and objectively justifiable cost accounting principles. Second, in paragraph 44 of the SGEI Framework, the Commission stated 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’. Third, as regards the USO, Article 14(2) of Directive 97/67, as amended, provides that ‘the universal service provider(s) shall keep separate accounts within their internal accounting systems in order to clearly distinguish between each of the services and products which are part of the universal service and those which are not’ and that ‘this accounting separation shall be used as an input when Member States calculate the net cost of the universal service’.
79      In the present case, as noted in paragraph 45 above, in the contested decision, the Commission found that Česká pošta complied with the provisions requiring the accounting separation between the USO and non-USO activities and that the method for allocating costs and revenues within Česká pošta’s accounts was appropriate, taking account of the fact that such an allocation was certified, each financial year, by an independent auditor. It then concluded that there was no cross-subsidisation of Česká pošta’s commercial activities by means of the compensation at issue, as a result of an incorrect accounting allocation of costs.
80      In that regard, it must be held that the Commission’s examination of the separation of the various activities within Česká pošta’s accounts, for the purposes of assessing whether there was any cross-subsidy, and in particular the assessment of whether the common cost allocation key was appropriate, involves complex economic and accounting assessments, in respect of which, as is apparent from the case-law, the EU Courts can carry out only a judicial review limited to verifying that there has been no manifest error of assessment (see, to that effect and by analogy, judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraphs 39 and 40).
81      Therefore, in accordance with the case-law referred to in paragraphs 64 and 65 above, it is necessary to examine whether the evidence put forward by the applicant in support of the first part of the second plea makes it possible to establish, in the present case, that the Commission made a manifest error of assessment when it found that the accounting allocation of Česká pošta’s costs was appropriate.
82      In the first place, the applicant and Brink’s Cash Solutions (CZ) criticise Česká pošta for having used the same assets to carry out both USO activities and non-USO commercial activities, and for having allocated the entire amount of the common costs to the USO.
83      However, that argument is based solely on an assertion which is supported by no prima facie evidence.
84      In any event, the fact that the same assets are used by Česká pošta both to provide the USO and to carry out non-USO commercial activities is not in itself an indication of there being cross-subsidisation by one of the other. In Article 14(3)(b) of Directive 97/67, as amended, the legislature expressly acknowledged that it was not always possible to assign costs directly to a particular service or product and accordingly laid down specific rules for the allocation of common costs.
85      In the present case, first of all, the Commission explained that Czech law required, (i) that the methodology for the allocation of common costs proposed by the universal service provider must be based on a causal link between the processes, activities or services concerned, (ii) that that methodology must be approved by the Czech telecommunications regulatory authority, which is an independent authority, and (iii) that the separated accounts must be audited annually by an independent auditor (recitals 167 and 168 of the contested decision). Next, it noted that Česká pošta’s costs were allocated per activity, at the level of each of its 5 740 cost centres (such as each post office, sorting centre or depot), and that its common costs were allocated in proportion to the allocation of direct costs, namely those costs which can be allocated directly according to their origin (recital 169 of the contested decision). Lastly, the Commission found that an independent auditor had certified that Česká pošta’s accounting system, cost allocation keys and annual results for the financial years 2018 to 2020 were in line with the accounting rules approved by the Czech telecommunications regulatory authority, the Czech Postal Services Act and Directive 97/67 (recitals 170 and 171 of the contested decision).
86      The applicant puts forward no evidence capable of calling into question the method used by Česká pošta for the separation of its accounts or the certification of those accounts by an independent auditor.
87      In addition, in response to a question put by the Court, the Commission adduced a non-confidential version of the reports of the independent auditor responsible for auditing Česká pošta’s accounts for the years 2018, 2019 and 2020, to which the applicant raised no objection. It is apparent from those documents that (i) the auditor’s task was to verify whether the keeping of Česká pošta’s separate revenue and expenditure accounts complied with Article 14 of Directive 97/67 and the relevant provisions of Czech law, in particular as regards the appropriate allocation of common costs, and (ii) that auditor concluded with reasonable assurance that there were no significant inaccuracies.
88      It follows from the foregoing that the Commission carried out a thorough analysis of the cost allocation system in Česká pošta’s accounts and satisfied itself that they were reliable.
89      In the second place, the applicant submits that Česká pošta prices certain activities not within the USO and carried out on competitive markets, namely the delivery of parcels at pick-up points, qualified timestamps and cash-in-transit services, below the cost of those activities.
90      However, as regards activities falling outside the scope of the USO, it is sufficient to note that their prices are set freely and are subject to the law of supply and demand, so that any tariff differentiation can logically emerge from them (judgment of 15 October 2020, První novinová společnost v Commission, T‑316/18, not published, EU:T:2020:489, paragraph 200). As the Commission pointed out in recital 200 of the contested decision, the obligation for prices to be cost-oriented, laid down in the second indent of Article 12 of Directive 97/67, as amended, concerns only ‘the tariffs for each of the services forming part of the universal service’, and not the commercial activities of the universal service provider which fall outside the scope of the USO.
91      Consequently, the prices charged by Česká pošta on competitive non-USO markets, even if they are below cost, do not result in it being established that a cross-subsidy on account of incorrect accounting allocation of costs took place.
92      Should the situation arise, the applicant’s allegations that Česká pošta engaged in predatory pricing could be examined under Articles 101 and 102 TFEU, but they are not relevant for examining whether the compensation at issue is compliant in the light of the State aid control regime (see, by analogy, judgment of 19 March 2019, Inpost Paczkomaty and Inpost v Commission, T‑282/16 and T‑283/16, EU:T:2019:168, paragraph 86).
93      In those circumstances, the applicant’s argument alleging that Česká pošta charges excessively low prices on the competitive markets not covered by the USO must be rejected as being ineffective for the purposes of challenging the contested decision. It is therefore not necessary to take a view on the applicant’s proposal, in the reply, to provide an economic analysis for the purposes of establishing that Česká pošta’s prices were excessively low. The same is true of the four press articles dated 5 March 2025 adduced by the applicant pursuant to Article 85(3) of the Rules of Procedure, concerning the Úřad pro ochranu hospodářské soutěže (Office for the Protection of Competition, Czech Republic) having conducted inspections at the premises of Česká pošta in the context of an abuse of a dominant position procedure.
94      In the third place, Česká pošta’s attempt to purchase certain activities of PNS is also not relevant for establishing that such a transaction was made possible by the compensation at issue and that the transaction was went beyond what was necessary to carry out the USO. Even if, as the applicant submits, the decision was not commercially rational for an efficient operator, that does not prove that it was financed from a cross-subsidy by means of the compensation at issue.
95      In that regard, as the Commission, in essence, submits, the fact that the proceeds of the compensation at issue is in fact used for a commercial transaction such as the purchase of PNS does not imply that cross-subsidisation exists.
96      There is, in fact, nothing in the FEU Treaty, in Directive 97/67 or in the SGEI Framework to prevent, from an accounting point of view, the proceeds of public compensation for the discharge of an SGEI from being allocated to items other than the discharge of the USO itself (see, to that effect, judgments of 15 October 2020, První novinová společnost v Commission, T‑316/18, not published, EU:T:2020:489, paragraphs 187 and 202, and of 5 May 2021, ITD and Danske Fragtmænd v Commission, T‑561/18, EU:T:2021:240, paragraphs 169 to 173).
97      What matters is that the undertaking entrusted with an SGEI faces a net cost which it would not have incurred if it had not been entrusted with such SGEI, in which case it is entitled to receive public compensation, provided that the amount of such compensation does not exceed that net cost, taking into account a reasonable profit (see paragraphs 61 and 62 above).
98      In the fourth place, as regards the alleged infringement of Article 5(3)(c) and (4) of Decision 2012/21, it must be stated that the Commission assessed the compatibility of the compensation at issue with the internal market on the basis of the SGEI Framework and not on the basis of Decision 2012/21, given that that decision was not applicable, as the applicant acknowledged at the hearing.
99      Even if, as the applicant suggested at the hearing and as Brink’s Cash Solutions (CZ) suggested in its statement in intervention, those provisions of Decision 2012/21 contain general principles concerning accounting allocation for an undertaking entrusted with an SGEI which were applicable in the present case, that line of argument also cannot succeed.
100    First, Article 5(3)(c) of Decision 2012/21 provides that ‘the costs allocated to the [SGEI] may cover all the direct costs incurred in operating the [SGEI] and an appropriate contribution to costs common to both the [SGEI] and other activities’. However, in the present case, it is apparent from the examination of the present part of the plea that the Commission made no manifest error of assessment in concluding that Česká pošta’s accounting separation of the USO activities and the non-USO activities was appropriate, which therefore means that only part of the common costs, and not the entirety of those costs, was attributed to the USO, contrary to the applicant’s assertions relying on that provision. Second, Article 5(4) of Decision 2021/21 provides that Member States may, but not must, allocate profits accruing from non-SGEI activities to the financing of an SGEI, as is apparent, moreover, as regards the universal postal service, from recital 26 of Directive 2008/6, which provides that ‘Member States may … [decide], where and if necessary, that the profits accruing from other activities of the universal service provider(s) outside the scope of the universal service are to be assigned, in whole or in part, to the financing of the net costs of the universal service’.
101    In the light of the foregoing, it must be held that the applicant has failed to establish that the Commission vitiated the contested decision by a manifest error of assessment when it concluded that the allocation of costs within Česká pošta was appropriate and took the appropriateness of their allocation into account in order to rule out the compensation at issue having been used to cross-finance Česká pošta’s competitive activities.
102    Accordingly, the first part of the second plea must be dismissed.
(c)    The second part of the second plea: the possibility of discharging the USO on a purely commercial basis
103    The applicant maintains that the Commission made a manifest error in finding that there was a market failure which justified granting the compensation at issue and criticises the Commission for having failed to consider, in its assessment of whether there was overcompensation, its argument that the USO could be provided by the market.
104    In that regard, it points out that some private operators present in the Czech Republic were already able to provide the USO using their own infrastructure. That would be the case since the applicant fulfils the accessibility and density criteria laid down in Paragraph 14(1) and (2) of the vyhláška č. 464/2012 Sb., o stanovení specifikace jednotlivých základních služeb a základních kvalitativních požadavků na jejich poskytování (Decree No 464/2012 concerning the definition of characteristics of different universal services and of fundamental qualitative requirements for their provision; ‘Decree No 464/2012’), thanks to its network of collection and pick-up points, which enables it to deliver items sent to individuals’ homes.
105    The applicant adds that the USO could be entrusted to private operators other than Česká pošta not only for the part thereof relating to parcel delivery, but also for the part relating to delivery of letters. In the light of the strong competitive pressure exerted by consumers on operators other than Česká pošta to deliver parcels to short deadlines, those operators could efficiently deliver letters on Czech territory.
106    In addition, the applicant states that the market already provides the USO in Germany, the Netherlands and Sweden. The Czech Republic is in a favourable economic situation, being the Member State with the highest number of shipments per citizen, as well as advantageous geography since, unlike other Member States, it has few remote areas in which the delivery of letters and parcels would be difficult because of insufficient infrastructure.
107    Lastly, the applicant maintains that the fact that it did not declare its interest in the tender procedure to select the future universal service provider in 2016 is not relevant to the examination of the present part of the second plea, in so far as the requirements at the time of that tender procedure demonstrate that it was tailor-made for Česká pošta. According to the applicant and Brink’s Cash Solutions (CZ), the amendment of those conditions in the context of the designation of the universal service provider for the period from 2023 to 2027 confirms that assessment, since the minimum number of post offices required of the universal service provider decreased from 3 200 to 2 900 after Česká pošta announced such a reduction in the number of its post offices.
108    The Commission, supported by the Czech Republic and Česká pošta, disputes the line of argument of the applicant.
109    It must be held that, in accordance with the case-law referred to in paragraph 64 above, the decision to entrust the performance of an SGEI to a particular undertaking in exchange for exclusive rights constitutes a means of organising such a SGEI in respect of which the Member States enjoy a broad discretion.
110    It is in that sense that paragraph 13 of the SGEI Framework provides that ‘Member States cannot attach specific public service obligations to services that are already provided or can be provided satisfactorily and under conditions, such as price, objective quality characteristics, continuity and access to the service, consistent with the public interest, as defined by the State, by undertakings operating under normal market conditions’, and that ‘as for the question of whether a service can be provided by the market, the Commission’s assessment is limited to checking whether the Member State’s definition is vitiated by a manifest error, unless provisions of Union law provide a stricter standard’.
111    Accordingly, in the present case, in accordance with the case-law referred to in paragraphs 64 and 65 above, it is necessary to examine whether the evidence put forward by the applicant makes it possible to conclude that the Commission erred in finding that there was no manifest error by the Czech authorities when they concluded that the market was not capable of providing the USO by itself.
112    In the first place, it must be stated, first, that, as is apparent from recitals 148 to 150 of the contested decision, the Commission assessed whether there was a market failure in relation to the USO by reference to 2016, namely the year when the Czech telecommunications regulatory authority carried out the five-year review of the quality level and arrangements for the provision of the USO, pursuant to Paragraph 37(4) of the Czech Postal Services Act. Second, in their written pleadings, both the Commission and the parties intervening in support of it expressly submitted that the relevant situation for assessing whether there was a market failure was the situation prevailing in 2016.
113    The applicant does not dispute that point, but limits its arguments concerning the situation on the Czech postal services market to the situation prevailing at the date when the action was lodged, that is to say, almost seven years after 2016. Accordingly, those arguments are not capable of establishing that the Commission made a manifest error of assessment.
114    In addition, it should be noted, as the Czech Republic has done, that the applicant bases its argument – that the USO could be performed by ‘private operators’ at the time when the application was lodged – exclusively on its own situation. More specifically, the applicant submits that it is capable of providing letter and parcel delivery services throughout the entire territory of the Czech Republic, since it satisfies the accessibility and density criteria required by Paragraph 14 of Decree No 464/2012.
115    In that regard, it should be recalled that the USO defined by the Czech authorities is not limited to the delivery of simple letters and parcels in the Czech Republic, but also includes other services, such as non-domestic mail, registered items, insured items, postal money orders or free postal services for blind or partially sighted persons (see paragraph 6 above). The applicant has not put forward any argument regarding its ability to provide such services.
116    Moreover, as regards the applicant allegedly fulfilling the accessibility and density criteria, Paragraph 14 of Decree No 464/2012 requires the universal service provider to operate post offices throughout the entire Czech territory. Although the applicant maintains that it is able to fulfil those criteria, relying on the geographic distribution of its collection and pick-up points in that territory, it must be stated that, as the Commission noted in recital 205 of the contested decision, those pick-up points do not constitute post offices as referred to in that provision. The applicant does not dispute Česká pošta’s assertion that the collection and pick-up points on which it relies ‘often constitute just … a computer with a barcode scanner in unrelated shops such as convenience stores, tobacconists or stationery shops’, and do not enable it to meet the requirements referred to in paragraph 115 above, which require specific staff training and specialised equipment.
117    In the second place, the applicant errs in complaining that the Commission took the question of market failure into account only for the purposes of assessing whether the USO constituted a genuine SGEI, and not for the purpose of assessing any overcompensation. Either the USO can actually be provided by the market, with the result that granting compensation in return for discharging that USO is not justified, or the national authorities have established, with no manifest error, that the USO could not be provided by the market alone, with the result that granting compensation is justified. It is only in the latter case that the question then arises whether the examination of the amount of compensation granted is appropriate, in the sense that that amount does not exceed the net costs incurred to guarantee the USO, taking into account a reasonable profit (see paragraph 61 above).
118    In the third place, the line of argument put forward by the applicant and by Brink’s Cash Solutions (CZ) alleging that the requirements for providing the USO were revised downwards for the period from 2023 to 2027 cannot succeed, since it concerns evidence subsequent to the contested decision. It is settled case-law that the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was taken, with the result that the Commission cannot be criticised for having failed to take into consideration, in the context of the procedure for reviewing State aid, factual information which was not brought to its attention in good time during that procedure (see judgment of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 76 and the case-law cited).
119    In the fourth place, it is apparent from paragraph 109 above that the Member States have, at their level, a broad discretion regarding the conditions for implementing an SGEI. Consequently, even if the USO is provided by the market in Germany, the Netherlands and Sweden, namely in 3 of 27 Member States, such a circumstance is not in itself capable of calling into question the conclusion of the Czech authorities, confirmed by the Commission, that in the Czech Republic there was a market failure to provide the USO at the time of the last review before the period concerned by the compensation at issue.
120    Accordingly, the applicant has not put forward any evidence capable of demonstrating that the Commission made a manifest error of assessment in finding that the Czech authorities had established that there was a market failure concerning the USO.
121    The second part of the second plea must therefore be rejected.
(d)    The third part of the second plea: the lack of substantiation for the assets used to determine the duration of the USO entrustment period
122    First of all, the applicant criticises the Commission for having confirmed the five-year period chosen for the USO period of entrustment to Česká pošta based on an unsubstantiated list of assets to be depreciated.
123    That list is simply a plain statement of assets with depreciation periods varying between 3 and 45 years, and provides no explanation of why they are necessary to discharge the USO. In addition, it appears clear that some of the assets listed are not relevant for discharging the USO, such as the vehicles which are leased by Česká pošta rather than purchased, or the historic buildings used by Česká pošta, which have already been fully depreciated.
124    Next, the applicant adds that it is not possible to determine from the list at issue which assets are intended to be financed by the compensation at issue, or when they were, or were intended to be, purchased. In particular, nothing explains why it is necessary, for the purposes of the USO, to purchase new furniture or to build new railways, even though those assets were taken into account for the purposes of determining the duration of the USO entrustment period.
125    The applicant concludes by stating that the USO could be discharged on the basis of a four or even three-year entrustment period, since (i) many of Česká pošta’s assets can be depreciated over such a period, and (ii) there is an ever stronger presence of private market players in the area of parcel delivery services.
126    The Commission, supported by the Czech Republic and Česká pošta, disputes the line of argument of the applicant.
127    As a preliminary point, it must be held that determining the duration of an SGEI entrustment is a condition of the implementation of that SGEI in respect of which the Member States enjoy a broad discretion, since review by the EU Courts in that regard is accordingly limited to the question whether the Commission was fully entitled to find or reject the existence of a manifest error on the part of the Member State in question (see paragraph 64 above).
128    Paragraph 17 of the SGEI Framework states that ‘the duration of the period of entrustment should be justified by reference to objective criteria such as the need to amortise non-transferable fixed assets’ and that ‘in principle, the duration of the period of entrustment should not exceed the period required for the depreciation of the most significant assets required to provide the SGEI’.
129    In recital 164 of the contested decision, the Commission concluded that the five-year period used by the Czech authorities fulfilled the requirements of paragraph 17 of the SGEI Framework, on the ground that (i) the depreciation period was greater than five years for most of the assets required for the delivery of the USO, a list of which it drew up, and (ii) the five-year duration was pre-established and was intended to apply irrespective of the universal service provider selected.
130    In the first place, it must be stated that the data in the depreciation table set out in recital 163 of the contested decision correspond, in essence, to those published by Česká pošta in Section 3.2. of its 2016 annual report, the relevant extract from which was adduced by the Czech Republic as an annex to its statement in intervention and was not disputed by the applicant.
131    In addition, as regards the assets listed in that depreciation table, which the applicant specifically disputes, first, the applicant maintains that Česká pošta leases its vehicles and that those vehicles do not therefore give rise to any depreciation. However, it is apparent from the Česká pošta press release dated 14 March 2013 cited by the applicant in support of its argument that the switch to leasing concerned only ‘light commercial vehicles’ and that Česká pošta ‘continues to purchase large trucks into personal ownership, with an expected period for usage of seven years’, which therefore entails depreciation in the accounts. Second, the applicant submits that Česká pošta operates ‘in very old historical buildings whose depreciation periods lapsed a long time ago’. However, that assertion alone does not preclude Česká pošta also owning and using other buildings which have not yet been depreciated, as the Czech Republic moreover submits, and which the applicant does not dispute.
132    It follows that the applicant has failed to establish that the depreciation table in respect of Česká pošta’s assets, which was used to determine the duration of the USO entrustment period, was manifestly incorrect, in the light of paragraph 17 of the SGEI Framework.
133    In the second place, as regards the duration of the USO entrustment period proper, it must be observed that, of the 13 assets listed in the table found at recital 163 of the contested decision, one has a depreciation period of between three and six years (IT retail), another has a depreciation period of between three and eight years (counter machinery), and three others have a depreciation period of between four and six years (office machinery, warehouse machinery and IT central). The remaining eight listed assets have a depreciation period of at least five years, but that period may be significantly longer, as is the case for sorting machinery or buildings, the depreciation periods for which are 10 years and 30 to 45 years respectively.
134    The applicant therefore errs in arguing that most of the assets necessary to discharge the USO can be depreciated in three or four years.
135    In the third place, as regards the lack of information regarding the financing of the assets retained by means of the compensation at issue, it is necessary, as the Commission and the Czech Republic point out, to distinguish between, on the one hand, the accounting depreciation of assets necessary to determine the duration for discharging the USO and, on the other hand, the taking into account of such depreciation in the calculation of the NAC.
136    According to the second sentence of paragraph 17 of the SGEI Framework, which relates solely to the duration of the entrustment period, that duration should not ‘exceed the period required for the depreciation of the most significant assets required to provide the SGEI’. Accordingly, for the purposes of determining that period, it is necessary to take into account the depreciation period of the most significant assets from an accounting point of view, which should, in principle, correspond to the duration of their use. That duration therefore constitutes an ‘objective criterion’, as referred to in the first sentence of paragraph 17 of the SGEI Framework, which may, in principle, justify the duration of the entrustment period.
137    By contrast, it is not required that the most significant assets required to provide the SGEI are found in the investments covered by the compensation granted to the provider of that service. As the Czech Republic points out, depreciation of assets constitutes an accounting burden which entails a cost to be taken into account in determining the NAC, but that question is different from the question of determining the duration of the USO entrustment period. Accordingly, contrary to the applicant’s assertions, in a similar fashion, the Commission was not required to assess whether the discharge of the USO justified the purchase of new furniture or the construction of new railways.
138    In those circumstances, the Commission cannot be criticised for having failed to verify, in the examination of the duration of the USO entrustment period, whether and the extent to which Česká pošta’s most significant assets were intended to be financed by the compensation at issue.
139    Accordingly, the five-year period used by the Czech authorities appears to be reasonable in the light of the depreciation period of Česká pošta’s most significant assets, and it cannot be held that the Commission made a manifest error of assessment in finding that such a period was appropriate.
140    It follows that the third part of the second plea must be rejected, there being no need to rule on the admissibility, which the Commission disputes, of the arguments put forward in the reply by which the applicant called into question the duration of the USO entrustment period.
(e)    The fourth part of the second plea: the 2018-2022 counterfactual scenario is unrealistic
141    The applicant submits that the Commission made a manifest error of assessment in finding that the 2018-2022 counterfactual scenario proposed by the Czech authorities was credible.
142    In the first place, it criticises the Commission for having accepted a counterfactual scenario based on the NAC method, whereas the methodology based on cost allocation would have been more suitable, since Česká pošta’s costs are not shared proportionally.
143    In addition, the applicant states that, according to the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 93), the level of compensation at issue must, in the absence of a public procurement selection procedure, be determined based on the analysis of the costs of a well-run undertaking. However, Česká pošta has in no way justified, with the necessary precision, that its costs were determined on that basis.
144    In the second place, the applicant maintains that the reduction in the number of post offices and in delivery frequency envisaged in the 2018-2022 counterfactual scenario is not credible.
145    First, as regards the reduction in the number of post offices, the applicant submits that the Czech authorities’ approach justifying the 2018-2022 counterfactual scenario in the contested decision is not consistent with the approach proposed in the 2013-2017 counterfactual scenario, which the Commission accepted in the 2018 decision. Indeed, while in the 2013-2017 counterfactual scenario, Česká pošta envisaged closing only 1 076 post offices and maintaining around 2 150, it then indicated in the 2018-2022 counterfactual scenario that 2 155 of its 3 210 post offices would be closed or converted into ‘PostPoints’.
146    The applicant maintains that there is no convincing explanation for such a change between the 2013-2017 counterfactual scenario and the 2018-2022 counterfactual scenario.
147    First, the profitability of the post offices closed in the 2018-2022 counterfactual scenario did not change between those two periods. Second, the applicant disputes that the developments between the first and the second counterfactual scenario can be justified by the adoption of the nařízení vlády č. 178/2015 Sb., o stanovení minimálního počtu provozoven pro poskytování základních služeb (Government Decree No 178/2015 on the determination of the minimum number of establishments for the provision of the universal service; ‘Decree No 178/2015’), which sets the minimum number of post offices to be operated by the universal service provider at 3 200. Indeed, according to the applicant, at the time when the NAC was calculated for the provision of the USO for the period from 2013 to 2017, while there was no rule expressly laying down a minimum number of post offices to be operated throughout the Czech Republic, the four density criteria relating to the coverage of that territory laid down in Paragraph 14(2) of Decree No 464/2012 already required approximately 3 000 post offices to be open, and not approximately 2 108, as Česká pošta had indicated.
148    In addition, the closure of more than 1 000 post offices announced in the 2018-2022 counterfactual scenario cannot be regarded as the behaviour of a commercially driven operator, since the market trend was to open new pick-up points. Moreover, in early 2020, the management of Česká pošta announced the expansion of its service by creating more than 1 500 ‘PostPoints’.
149    Second, the applicant maintains that the Commission erred in confirming the reduction in delivery frequency envisaged in the 2018-2022 counterfactual scenario, which reduced deliveries from five days per week to five days every two weeks. In essence, the applicant criticises the Commission for disregarding the fact that, despite the USO, Česká pošta had already reduced delivery frequency, via a two-speed mode of delivery, comprising priority delivery on the day following posting and standard delivery from the second working day after posting. In addition, given significant consumer pressure for a rapid delivery, the idea of reducing delivery frequency runs counter to market trends.
150    The Commission, supported by the Czech Republic and Česká pošta, disputes the arguments of the applicant.
(1)    The application of the NAC method
151    In the first place, the applicant criticises the Commission for having accepted the Czech authorities’ use of the NAC methodology for the purposes of determining the amount of compensation at issue.
152    However, first, the NAC methodology is regarded as the method to be applied in principle to calculate the amount of compensation granted in return for providing an SGEI, as is apparent from Section 2.8 of the SGEI Framework, and in particular from paragraph 24 thereof, which states that ‘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.’
153    Second, in the case of the universal postal service, Annex I to Directive 97/67 as amended and Paragraph 34b of the Czech Postal Services Act contain clear guidance for the calculation of the NAC, which involves the use of that method.
154    Consequently, the applicant errs in maintaining that it was appropriate to apply a method other than the NAC method for the purposes of determining the compensation at issue.
155    While it asserts that the NAC methodology was not appropriate in the case of Česká pošta, on the ground that Česká pošta attributes all the common costs to the NAC, the applicant has in any event failed to establish that such a situation existed, as is apparent from the examination of the first part of the present plea.
156    In the second place, the applicant maintains that Česká pošta’s costs used to determine the amount of the compensation at issue were not the costs of a well-run undertaking.
157    It is true that, in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraphs 88 to 93), the Court laid down four cumulative criteria which make it possible to rule out the possibility that public service compensation entails the grant of an advantage and, consequently, to rule out such compensation constituting State aid within the meaning of Article 107(1) TFEU. According to the fourth of those criteria, where the undertaking which is to discharge public service obligations is not chosen pursuant to a public procurement procedure, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.
158    However, according to the case-law, the fourth criterion in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), is not taken into account in assessing the compatibility of aid measures with the internal market under Article 106(2) TFEU, since the conditions for that compatibility are distinct from the criteria resulting from that judgment and which were laid down in order to assess the existence of State aid (see judgment of 7 November 2012, CBI v Commission, T‑137/10, EU:T:2012:584, paragraph 292 and the case-law cited).
159    Consequently, since, in the contested decision, the Commission assessed the compatibility with the internal market of the compensation at issue under Article 106(2) TFEU, the applicant errs in claiming that Česká pošta’s costs are not those of a well-run undertaking, as referred to in the fourth criterion of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415).
160    The applicant’s complaints relating to the application of the NAC methodology must therefore be rejected.
(2)     The hypothetical situations used in the 2018-2022 counterfactual scenario
161    As a preliminary point, the examination of the counterfactual scenario involves assessing a fictitious situation in which the costs and revenues of the universal service provider are determined in the hypothetical situation that it is no longer entrusted with the USO. It must therefore be held that such an examination requires complex economic assessments to be carried out (see, to that effect, judgments of 16 September 2013, Iliad and Others v Commission, T‑325/10, not published, EU:T:2013:472, paragraph 221 and the case-law cited, and of 16 July 2014, Germany v Commission, T‑295/12, not published, EU:T:2014:675, paragraph 87 and the case-law cited; see also, by analogy, judgment of 6 July 2017, SNCM v Commission, T‑1/15, not published, EU:T:2017:470, paragraph 154), in respect of which the review by the EU Courts must be limited to ascertaining that there has been no manifest error, in accordance with the case-law referred to in paragraph 80 above.
162    It is therefore necessary to assess whether the applicant has established that there was such an error as regards, first, the envisaged reduction in the number of post offices in the 2018-2022 counterfactual scenario and, second, the reduction in the delivery frequency of letters in the same scenario.
(i)    The reduction in the number of post offices
163    In the contested decision, the Commission found the reduction in the number of post offices from approximately 3 320 in the factual scenario for the period between 2018 and 2022 (‘the 2018-2022 factual scenario’) to approximately 1 080 in the 2018-2022 counterfactual scenario to be credible. The 2018-2022 factual scenario and the 2018-2022 counterfactual scenario involved the same number of post offices operated voluntarily by Česká pošta (‘the voluntary post offices’), that is to say, approximately 30, whereas the remaining post offices in each scenario were regarded as offices required by the USO to be operated.
164    The applicant disputes that finding and submits that such a reduction in the number of post offices is manifestly implausible. According to the applicant, apart from being contrary to market trends, that reduction is not consistent with the much smaller reduction envisaged in the 2013-2017 counterfactual scenario.
165    In that regard, it should be noted that, as is apparent from recital 198 of the contested decision, the Commission’s assessment of the reduction in the number of post offices operated in the 2018-2022 counterfactual scenario was based primarily on an examination of whether that scenario was in itself realistic, regardless of the previous period.
166    First of all, the Commission noted that Česká pošta’s financial data showed that the post offices to be closed in the 2018-2022 counterfactual scenario represented 81.5% of the total number of post offices, but generated only 15 to 35% of total revenues, while the retained offices, representing 19.5% of the total number of post offices, generated 50 to 75% of total revenues (recital 196 of the contested decision). In that regard, it stated that Česká pošta’s accounting made it possible to establish for each post office the amount of revenue and of costs for postal services and the amount of revenue and of costs for non-postal services, in order to establish whether or not each post office was profitable and, depending on the result, whether it would be maintained in the 2018-2022 counterfactual scenario (recital 206 of the contested decision).
167    Apart from the fact that it has already been noted in the context of the first part of the present plea that Česká pošta’s accounting documentation appeared to be accurate, it must be stated that the decision to maintain or to close post offices in the 2018-2022 counterfactual scenario, taking into account in particular whether they were profitable or loss-making, also appears reasonable, as the Commission stated in recital 205 of the contested decision.
168    Next, the Commission stated that Česká pošta operated a number of types of post offices, ranging from large offices in densely populated areas, which were mostly maintained in the 2018-2022 counterfactual scenario, to smaller single counter offices in small municipalities, which were mostly closed in that scenario (recital 196 of the contested decision).
169    In that regard, the closure of post offices in small towns appears credible, in so far as Paragraph 14 of Decree No 464/2012 requires post offices to be present throughout the entire Czech territory (see paragraph 116 above), including in sparsely populated areas, where those offices are less likely to be profitable. More specifically, Paragraph 14(2) of that decree requires, inter alia, the universal service provider to operate at least one post office in each municipality with a relatively low threshold of 2 500 inhabitants and, in certain cases, to maintain a post office in municipalities with less than 2 500 inhabitants, and that no point in a municipality may in any event be more than 10 km from a post office.
170    Lastly, the Commission found that the Czech authorities had not simply taken the view that all the costs and revenues relating to the closure of a post office would be eliminated in the 2018-2022 counterfactual scenario, since some customers would continue to use Česká pošta’s services, including in the event of closure of their office, by switching to another office or to pick-up points. According to the contested decision, the 2018-2022 counterfactual scenario would involve, on the one hand, maintaining part of that revenue accounted for by closed offices and, on the other hand, increases in the costs of equipment and human resources for the offices and pick-up points maintained and subsequently being used by former customers of the post office which would be closed. Nevertheless, part of the demand would be lost, which would bring about, in comparison with the 2018-2022 factual scenario, a reduction in revenue from the USO and in revenue from other activities (recitals 196 and 206 to 210 of the contested decision).
171    Accordingly, it must be held that the Commission’s assessment is based on the precise and credible methodology proposed by the Czech authorities, which is not in itself disputed by the applicant.
172    It is therefore necessary to examine, at the present stage, whether the conclusion in paragraph 171 above may be called into question by the applicant’s arguments concerning (i) differences in the reduction in the number of post offices in the 2018-2022 counterfactual scenario and in the 2013-2017 counterfactual scenario and (ii) a contradiction between the 2018-2022 counterfactual scenario and market trends.
173    In the first place, as regards the applicant’s argument based on the difference in the 2018-2022 counterfactual scenario and in the 2013-2017 counterfactual scenario, it must be stated that, when the 2018-2022 counterfactual scenario was established, the relevant provisions of Czech law set the minimum number of post offices which the universal service provider was required to operate throughout the territory of the Czech Republic at 3 200. That requirement followed the entry into force on 1 January 2016 of Decree No 178/2015, whereas, when the 2013-2017 counterfactual scenario was established, Czech law contained no general requirement for a minimum number of obligatory post offices, since the only requirements related to the density and accessibility of those offices.
174    It follows that the 2018-2022 counterfactual scenario examined in the contested decision was based on a factual scenario requiring a network of 3 200 obligatory post offices. Accordingly, the net cost of operating those post offices which were not to be retained in the 2018-2022 counterfactual scenario could be taken into account for the purposes of calculating the amount of the compensation at issue. However, under the 2013-2017 counterfactual scenario, the Czech authorities concluded that the number of obligatory post offices was 2 108, which was not called into question by the Commission in the 2018 decision, nor by the Court in the judgment of 15 October 2020, První novinová společnost v Commission (T‑316/18, not published, EU:T:2020:489), which dismissed the action against that decision. Accordingly, for that period, only the net costs to which those 2 108 obligatory post offices gave rise could be taken into account for the purposes of establishing the compensation granted to Česká pošta in return for providing the USO.
175    It is true that, as is common ground between the parties, at the time of determining the 2013-2017 counterfactual scenario, Česká pošta operated a total of approximately 3 226 post offices, that is to say, a number which was in essence the same as the 3 230 post offices it was operating at the time when the 2018-2022 counterfactual scenario was determined. In addition, it is true that, for the purposes of the 2013-2017 counterfactual scenario, the Czech authorities had concluded that the 1 118 voluntary post offices operated by Česká pošta would be maintained in such a scenario.
176    However, as stated in paragraph 173 above, the regulatory landscape evolved between the 2013-2017 period and the 2018-2022 period in relation to the number of obligatory post offices. The obligatory post offices were the only relevant factor to be taken into account for the purposes of calculating the NAC for the purposes of determining the amount of the compensation at issue (see paragraph 174 above).
177    In other words, as the Czech Republic explains, the more than 1 000 voluntary – for the purposes of the 2013-2017 counterfactual scenario – post offices were not relevant for the examination of the NAC during that period given that their possible closure in that counterfactual scenario would not have been likely to generate a cost attributable to the USO, and to be taken into account in the calculation of the NAC and in the determination of the compensation granted. Since those same offices had legally become obligatory post offices at the time of determining the 2018-2022 counterfactual scenario, it was necessary for the Czech authorities, subject to review by the Commission, to assess the credibility of retaining them or closing them for the purposes of that scenario, which was done in the contested decision according to a precise method which the applicant did not call into question (see paragraph 171 above).
178    It follows that the difference in the number of post offices to be closed in the 2013-2017 counterfactual scenario and in the 2018-2022 counterfactual scenario can be explained by the evolution of the regulatory landscape, and more specifically by the increase in the number of obligatory post offices. Consequently, the applicant’s line of argument alleging such a difference is not capable of leading to a finding of a manifest error of assessment.
179    In the second place, the applicant’s argument that the market trend is towards the opening of new post offices, including by Česká pošta, which announced the opening of 1 500 new pick-up points, is based on the premiss that post offices and pick-up points are identical. As is apparent from paragraph 116 above, pick-up points do not fulfil the regulatory requirements which post offices must fulfil.
180    It follows from the foregoing that the Commission was entitled to find, without making a manifest error of assessment, that the reduction in the number of post offices envisaged in the 2018-2022 counterfactual scenario was credible.
(ii) The reduction in delivery frequency
181    The applicant disputes the finding by which, in the contested decision, the Commission found that the reduction in the delivery frequency of letters from five days a week to five days every two weeks, envisaged by the Czech authorities in the 2018-2022 counterfactual scenario, was credible.
182    However, first, the applicant errs in relying on the fact that Česká pošta had already reduced delivery frequency while it was also responsible for the USO. That fact was taken into account in recital 197 of the contested decision, in which the Commission clearly stated that ‘Česká pošta [had] changed the delivery frequency in February 2020 and offer[ed] “economy consignments” with D + n delivery and “priority consignments” with D + 1 delivery’. In addition, in recital 214 of that decision, at the stage of ‘identifying the impact on costs and revenues from reducing the delivery frequency of letters in the [2018-2022] counterfactual scenario’, the Commission stated that, for the period from 2020 to 2022, the factual scenario included next day delivery (‘D + 1’) and delivery later than the next day (‘D + n’), whereas, in the counterfactual scenario, next day delivery would be abandoned and only delivery later than the next day would be maintained. It then concluded that the impact on costs and revenues of the reduction in delivery frequency would be lower, since it concerned only abandoning costs and revenues relating to next day delivery, which were less significant since Česká pošta also offered delivery later than the next day.
183    Second, as regards the applicant’s argument that a reduction in delivery frequency is not consistent with the competitive pressure exerted by consumers, which encouraged rapid delivery the next day or even on the same day, it should be noted that such pressure applies only to the delivery of parcels and not to the delivery of letters. In recital 197 of the contested decision, the Commission ruled out the possibility that Česká pošta’s customers would switch to courier services, the only services capable of delivering letters the next day, in the event of Česká pošta reducing the delivery frequency of letters, and the applicant has adduced no evidence capable of calling that assessment into question. Moreover, in its arguments put forward in support of the second part of the present plea, the applicant acknowledges that the pressure exerted by consumers for next day or even same day delivery stems from the development of e-commerce and therefore concerns delivery of parcels. In recital 212 of the contested decision, the Commission clearly stated that the Czech authorities did not envisage a reduction in the frequency of parcel delivery in the 2018-2022 counterfactual scenario.
184    Consequently, the applicant’s line of argument in the context of the present complaint is based on a premiss which is incorrect in two respects, namely (i) the Commission did not take account of the reduction in the existing delivery frequency in the 2018-2022 factual scenario and (ii) the Commission concluded that the frequency of parcel delivery would be modified in the 2018-2022 counterfactual scenario.
185    In the light of all the foregoing, the fourth part of the third plea must be rejected and, therefore, that plea must be rejected in its entirety.
3.      The third plea: manifest error of assessment and failure to examine whether there was cross-subsidisation prior to the compensation at issue
186    By its third plea, the applicant, supported by Brink’s Cash Solutions (CZ), complains that the Commission’s decision on the practice of cross-subsidisation carried out by Česká pošta since at least 2013 was insufficient, whereas that practice constitutes State aid which is incompatible with the internal market.
187    In that regard, it refers to the arguments it put forward in the context of the first and fourth parts of the second plea and states that Česká pošta failed properly to allocate costs and carried out its commercial activities at prices below costs, by using the compensation received for performing the USO and the infrastructure necessary for performing it.
188     The applicant maintains that such conduct is characteristic of State aid which is incompatible with the internal market, as is apparent from the Commission’s previous decision-making practice.
189    The applicant concludes that the Commission ought to have assessed whether the cross-subsidisation constituted State aid and whether it was compatible with the internal market in an administrative procedure separate from the procedure concerning the compensation at issue.
190    The Commission, supported by the Czech Republic and Česká pošta, disputes the line of argument of the applicant.
191    In that regard, it must be stated that, in section 5 of the 2020 opening decision, devoted to the ‘assessment of the measures raised in the complaints’ by the applicant and PNS, first, the Commission stated that it would make a finding as to the compatibility of the compensation at issue with the internal market after completion of the formal investigation procedure and that the compatibility with the internal market of the compensation granted in return for the discharge of the USO for the period from 2013 to 2017 had been assessed in the 2018 decision. Second, as regards the ‘misallocation of costs’, the Commission concluded (i) that that was an accounting matter which did not involve the transfer of State resources and therefore did not amount to State aid pursuant to Article 107(1) TFEU, (ii) that the accounting allocation was appropriate and did not result in overcompensation and (iii) that the allocation of costs in Česká pošta’s accounts for the period from 2013 to 2017 had been assessed in the 2018 decision (paragraphs 137 to 140 of the 2020 opening decision).
192    Accordingly, the Commission concluded the 2020 opening decision by stating, in paragraph 143 thereof, that the measures other than the compensation at issue relied on in the complaints did not constitute State aid, but that it would take into account any impact they might have on the amount of the compensation at issue in the decision taken following the formal investigation procedure.
193    It follows that the Commission limited its examination, in the contested decision, to the compatibility of the compensation at issue with the internal market, to the exclusion of other measures. Accordingly, the applicant cannot complain that the Commission made a manifest error in assessing possible cross-subsidies by Česká pošta made before 2017 and since at least 2013, that is to say during the period prior to the period covered by the compensation at issue.
194    In any event, such a complaint is ineffective since, in support of that complaint, the applicant submits only that the Commission acted contrary to its previous decision-making practice. It follows from the case-law that the question whether a measure constitutes State aid and whether it is compatible with the internal market must be assessed solely in the context of the relevant provisions of the FEU Treaty and the measures taken to implement it, and not in the light of any earlier decision-making practice of the Commission (see, to that effect, judgment of 22 January 2013, Salzgitter v Commission, T‑308/00 RENV, EU:T:2013:30, paragraph 66 and the case-law cited).
195    In addition, even if, in its complaint, the applicant complained that there was cross-subsidisation which began in at least 2013, as State aid which was independent of the compensation at issue, it would have to be observed that the Commission rejected the part of the complaint which related to such a measure, and by the 2020 opening decision refused to initiate the formal investigation procedure in respect of that measure, as is apparent from paragraph 192 above. However, there was no action for annulment of the 2020 opening decision on that point, which has therefore become final with regard to the applicant. The applicant therefore cannot, in the present action, complain that the Commission failed to conduct a separate administrative procedure in order to examine whether there was cross-subsidisation of Česká pošta’s activities as a measure which was independent of the compensation at issue.
196    The same conclusion must be drawn with regard to the applicant’s allegation, made at the hearing, that Česká pošta’s public status means that it uses State resources and, therefore, that there is State aid.
197    It follows that the third plea must be rejected and that, accordingly, the action must be dismissed in its entirety.
IV.    Costs
198    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 pay, in addition to its own costs, the costs incurred by the Commission, in accordance with the form of order sought by the Commission.
199    Pursuant to Article 138(1) of the Rules of Procedure, the Czech Republic is to bear its own costs. Pursuant to Article 138(3) of the Rules of Procedure, Česká pošta and Brink’s Cash Solutions (CZ) are to bear their own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Zásilkovna s. r. o. to bear its own costs and to pay those incurred by the European Commission;
3.      Orders Brink’s Cash Solutions (CZ) a.s., the Czech Republic and Česká pošta s. p. to bear their own costs.
Mastroianni
Gâlea
Kalėda
Delivered in open court in Luxembourg on 3 September 2025.
V. Di Bucci
O. Porchia
Registrar
President
*      Language of the case: English.