ORDER OF THE GENERAL COURT (Fourth Chamber)
26 February 2025 (*)
( Action for annulment – State aid – Postal sector – Compensation for discharging the universal service obligation – Decision finding aid compatible with the internal market – Lack of individual concern – No substantial effect on the competitive position – Inadmissibility )
In Case T‑195/23,
Dansk Avis Omdeling Distribution A/S, established in Vejle (Denmark), represented by L. Sandberg-Mørch, lawyer,
applicant,
v
European Commission, represented by L. Nicolae, J. Carpi Badía and C. Faroghi, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented by C. Maertens, acting as Agent, and by R. Holdgaard, lawyer,
and by
Post Danmark A/S, represented by O. Koktvedgaard, lawyer,
interveners,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, T. Pynnä and H. Cassagnabère, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, Dansk Avis Omdeling Distribution A/S, seeks annulment of Commission Decision (EU) 2023/2388 of 10 August 2022 on State aid SA.57991 – 2021/C (ex 2021/NN) implemented by Denmark for USO compensation to Post Danmark A/S for 2020 (OJ L 2023/2388; ‘the contested decision’).
Background to the dispute
2        The applicant is a company that is active, inter alia, on the Danish logistics services market. It specialises in the distribution of newspapers, magazines and parcels.
3        Post Danmark A/S is a company that operates on the Danish postal market. It offers postal services on that market, such as the delivery of letters and parcels, and operates a national network of post offices. It has been exposed to competition in all of its business segments since 2011.
4        Post Danmark is a 100% subsidiary of PostNord Group AB, which is 100% owned by PostNord AB.
5        The postloven, lov nr 1536 (Postal Law No 1536) of 21 December 2010 (Lovtidende 2010 A), as amended, designated Post Danmark as the universal postal service provider in Denmark.
6        By an individual licence issued on 30 May 2016, Post Danmark was designated as provider of the universal service obligation (‘the USO’) until 31 December 2019.
7        By two successive individual licences, the individual licence issued on 30 May 2016 was extended and Post Danmark was designated as the USO provider for 2020. More specifically, the first of those licences, issued on 20 December 2019, covered the period from 1 January to 30 June 2020. The second, issued on 25 June 2020, covered the period from 1 July 2020 until 31 December 2020.
8        The conditions of the USO for 2020 were those set out in the individual licence issued to Post Danmark on 30 May 2016. Accordingly, the universal service had to be provided for at least five working days per week, including the following services:
–        the distribution of postal items such as letters, periodicals (daily, weekly and monthly) and advertising letters (for example, catalogues) up to 2 kg;
–        the distribution of parcels up to 20 kg (with the exception of business-to-business parcels, which are governed by contractual terms);
–        a free postal service for blind persons for items weighing up to 7 kg.
9        Compensation for the provision of the universal postal service for 2020 was 225 million Danish kroner (DKK) (approximately EUR 30 million) (‘the compensation at issue’). In January 2020 – that is to say, before the Danish authorities notified the European Commission of the compensation at issue – half of that amount, or DKK 112 million (approximately EUR 15 million), was granted to Post Danmark for the first half of 2020.
10      On 23 July 2021, after receiving a complaint from the Brancheorganisation for den danske vejgodstransport (ITD) concerning the compensation at issue, registered under number SA.55918 (2020/FC), and the notification of that compensation by the Danish authorities, registered under number SA.57991 (2021/C), the Commission decided to initiate the formal investigation procedure under Article 108(2) TFEU.
11      On 15 October 2021, the Commission informed ITD that the investigation would continue solely under the case number SA.57991 (2021/C).
12      On 10 August 2022, at the end of the formal investigation procedure, the Commission adopted the contested decision. In that decision, it found, first, that the compensation for the first and second halves of 2020 constituted a single measure, namely the compensation at issue. Second, it considered that that compensation was State aid within the meaning of Article 107(1) TFEU. Third, it found that the compensation was compatible with the internal market for the purposes of Article 106(2) TFEU, as interpreted by 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).
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
14      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
15      The Kingdom of Denmark contends that the Court should dismiss the action.
16      Post Danmark contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
17      Under Article 129 of the Rules of Procedure of the General Court, on a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
18      In the present case, the Court considers that it has sufficient information from the documents in the case file and the explanations provided by the parties during the written part of the procedure and it has decided to give a decision without taking further steps in the proceedings.
19      Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, the Commission, supported by the Kingdom of Denmark, submits that the action is inadmissible on the ground that the applicant does not have standing to bring proceedings. In particular, it argues that the applicant has failed to demonstrate that its position on the market concerned has been substantially affected by the compensation at issue.
20      The applicant submits that it has standing to bring proceedings. In its view, the compensation at issue has substantially affected its competitive position. In particular, it claims that it has suffered a yearly loss of DKK 22 million (approximately EUR 2.950 million) as a result of price dumping practised by Post Danmark thanks to the subsidies provided by the Kingdom of Denmark. The applicant also maintains that it is one of the three or four main competitors to Post Danmark, which has the largest market share, such that the applicant is ‘naturally’ affected by any financial support given to Post Danmark.
21      In that regard, it should be observed that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
22      In the present case, first, Article 2 of the contested decision shows that it is addressed solely to the Kingdom of Denmark and not to the applicant. Therefore, the present action cannot be declared admissible under the first limb of the fourth paragraph of Article 263 TFEU.
23      Second, the compensation at issue is individual in nature. Accordingly, the contested decision cannot be classified as a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 10 October 2017, Greenpeace Energy v Commission, C‑640/16 P, not published, EU:C:2017:752, paragraph 26, and judgment of 3 December 2014, Castelnou Energía v Commission, T‑57/11, EU:T:2014:1021, paragraph 23). Therefore, the action cannot be declared admissible on that basis.
24      Consequently, the present action for annulment is admissible only to the extent that the applicant, in accordance with the second limb of the fourth paragraph of Article 263 TFEU, is directly and individually concerned by the contested decision, those two conditions being cumulative.
25      In the present case, the Court considers that it is appropriate to assess, first of all, the condition relating to individual concern.
26      According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (see judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 53 and the case-law cited).
27      As regards more specifically the field of State aid, an applicant challenging the merits of a decision appraising the aid taken after the formal investigation procedure must demonstrate that it has a particular status, for the purposes of the case-law referred to in paragraph 26 above. That applies in particular where the applicant’s position on the market concerned is substantially affected by the aid to which the decision at issue relates (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 37 and the case-law cited).
28      The substantial effect on the applicant’s competitive position on the market in question does not result from a detailed analysis of the various competitive relationships on that market, allowing the extent of the adverse effect on its competitive position to be established specifically, but, in principle, from a prima facie finding that the grant of the measure covered by the Commission’s decision leads to a substantial adverse effect on that position (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 58).
29      It follows that the condition of individual concern may be satisfied where the applicant adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 59 and the case-law cited).
30      With regard to determining whether there has been a substantial effect on the position on the market in question, it must be borne in mind, first, that the mere fact that an act may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the beneficiary of that act cannot on any view suffice for that undertaking to be regarded as being individually concerned by that act. Accordingly, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 60 and the case-law cited).
31      Second, it must be observed that demonstrating a substantial effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in the applicant’s commercial or financial performance, such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can also have an adverse effect on the competitive situation of an operator in other ways, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 61 and the case-law cited).
32      It is in the light of those principles that it is necessary to examine whether the applicant, which bears the burden of proof, as observed in paragraph 29 above, has demonstrated that it is individually concerned by the contested decision.
33      As a preliminary point, it should be observed that it is common ground that the applicant is an undertaking that competes with Post Danmark on the market concerned.
34      That being said, in the first place, and contrary to what is claimed by the applicant, since it is challenging the merits of the contested decision, which was taken after the formal investigation procedure, the applicant’s standing to bring proceedings cannot be inferred merely from the fact that it is an interested party for the purposes of Article 108(2) TFEU and Article 1(h) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9). As has already been pointed out, the applicant must demonstrate that it has a particular status in terms of the case-law referred to in paragraph 26 above (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 37 and the case-law cited).
35      In the second place, as regards its role in the administrative proceedings before the Commission, the applicant does not claim to have played an active role in those proceedings, which is furthermore confirmed by the file. Indeed, it neither initiated those proceedings nor lodged any observations in the course of them. In addition, even if the applicant had participated in the Commission’s administrative proceedings, it could not be inferred merely from that participation that the applicant is individually concerned by the contested decision, even if it had played an important part in those administrative proceedings (see, to that effect, judgment of 12 April 2019, Deutsche Lufthansa v Commission, T‑492/15, EU:T:2019:252, paragraph 143 and the case-law cited).
36      In the third place, it is necessary to make the following observations as regards the alleged substantial effect on the applicant’s competitive position liable to result from the compensation at issue.
37      The applicant argues that Post Danmark is in a position to set its prices below market levels thanks to the financing granted to it by the Kingdom of Denmark. It claims that Post Danmark’s pricing strategy causes it to lose DKK 22 million (approximately EUR 2.94 million) a year. More specifically, it asserts that it loses DKK 1.5 (approximately EUR 0.20) per magazine, multiplied by the eight million magazines a year that it delivers, for a total annual loss of approximately DKK 12 million (approximately EUR 1.6 million). It also claims that it loses approximately five million deliveries to Post Danmark, for an annual loss of approximately DKK 10 million (approximately EUR 1.3 million). It has therefore been substantially affected by the compensation at issue.
38      In that regard, first, it must be held that the applicant adduces no prima facie evidence of the actual existence of the alleged annual losses, namely DKK 22 million (approximately EUR 2.94 million), resulting from Post Danmark’s purported pricing strategies. Although the applicant states that it submitted the calculation of its annual losses, set out in paragraph 37 above, to an inquiry of the Postal Inspectorate of the Danish Agency, that claim is not supported by any evidence in the file.
39      Second, as regards the applicant’s argument that the compensation at issue enabled Post Danmark to charge lower prices than those of the competition or ‘to dump its prices’, making any competition difficult, it should be observed at the outset that the applicant has not adduced any evidence related specifically to that compensation. In order to illustrate its observations and provide an example of the dumping practised by Post Danmark thanks to the financing it received, which hindered competitors, the applicant relies on a single document, namely the letter produced in Annex A.3 to the application, allegedly drafted by Bladkompagniet, a company which the applicant acquired in 2021.
40      It is indeed indicated in the letter produced in Annex A.3 to the application that Post Danmark extended the exemption from VAT to services which were not entitled to benefit therefrom since they were not covered by the USO. That allegedly thus enabled it to charge prices that were lower than those of the competition (sometimes by 25%), or even dumping prices, thus distorting competition and excluding competing undertakings such as Bladkompagniet from the market.
41      However, first of all, the letter produced in Annex A.3 to the application, which is not corroborated by any other item of information, is not of such probative value as to establish that Post Danmark, thanks to the financing granted to it by the Kingdom of Denmark, is able to set prices below those of the market, hindering competition.
42      Even though the Court accepts it for the purpose of its review of the applicant’s locus standi, there is nothing to certify that Bladkompagniet was the originator of the letter produced in Annex A.3 to the application. Moreover, that letter is presented as a draft because the Danish word ‘udkast’ (draft) is mentioned therein, and it is neither dated nor signed. The fact that, according to the applicant, the document is an internal memorandum, which contradicts its consistent line of argument by which it maintains that it is a letter addressed to the Færdselsstyrelsen (Danish Road Traffic Authority), does not serve to rule out the relevance of that finding for assessing the probative value of that document.
43      Moreover, it is true that it appears from the letter produced in Annex A.3 to the application that Post Danmark’s alleged charging of prices below those of the competition led to the exclusion of competing undertakings such as Bladkompagniet from the market. However, the claim made in that letter that Bladkompagniet and other undertakings were excluded from the market is based solely on Bladkompagniet’s statements and is not corroborated by any other item of information. Similarly, the claim in that letter that Post Danmark charged dumping prices is likewise not supported by other evidence. The letter in question therefore does not make it possible to establish that Bladkompagniet or other undertakings have actually been excluded from the market owing to the prices charged by Post Danmark.
44      Next, even accepting, as the applicant claims, that the letter produced in Annex A.3 to the application was addressed to the Danish Road Traffic Authority, for which there is no evidence, not even an acknowledgement of receipt issued by that authority, the applicant has not adduced any decision by that authority that finds, following receipt of that letter, that Post Danmark was charging dumping prices.
45      Furthermore, as noted in paragraph 40 above, the letter produced in Annex A.3 to the application concerns neither the compensation at issue nor USO compensation covering another period, but relates to the alleged misapplication of the VAT exemption from which Post Danmark benefited, which was extended to services that did not come within the USO. However, the applicant has failed to establish that the effects of the compensation at issue are likely to be similar to those caused by an incorrectly applied VAT exemption under the USO.
46      In addition, the applicant – which responds in its observations on the Kingdom of Denmark’s statement in intervention to arguments put forward in the rejoinder – does not dispute the Commission’s statement that, having regard to the addressees referred to in the letter produced in Annex A.3 to the application, namely the Posttilsynet (Danish Postal Inspectorate) and the Danish Road Traffic Authority, and to the respective dates on which their activities ceased, that letter, which is undated, must have been drafted before 2002 or 2010, namely at least 10 years before the grant of the compensation at issue. However, the applicant has not shown that the situation on the market concerned prior to 2010 could be comparable to that existing in 2021, which is the relevant period in the present case. The applicant has thereby failed to establish that the effects of the alleged misapplication of the VAT exemption prior to 2010, if accounted as proven and relevant, are likely to be present 10 years later.
47      Lastly, even if it were accepted that Bladkompagniet and other undertakings were excluded from the market owing to Post Danmark’s pricing practices, as allegedly made possible thanks to an unlawful extension of the scope of the VAT exemption from which it benefited, the applicant has failed to provide any explanation to support the view that it is in a comparable situation, with respect to the compensation at issue, to that of Bladkompagniet and those other undertakings at the time of Post Danmark’s alleged misapplication of that exemption. Likewise, even if it may be assumed that the alleged misapplication of that exemption by Post Danmark may, inter alia, have substantially affected Bladkompagniet, that does not suffice to demonstrate that the compensation at issue is liable to have a substantial effect on the position of the applicant on the market concerned, in particular by causing a fall in the prices which it charges and in the volume of its deliveries. Furthermore, while it is true that the applicant acquired Bladkompagniet in 2021, it should be observed that they were two different undertakings when the letter set out in Annex A.3 to the application was drafted.
48      Third, the applicant has no prospect of success with its arguments based on the judgments of 12 July 1990, COFAZ v Commission (C‑169/84, EU:C:1990:301), and of 12 December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission (T‑146/03, not published, EU:T:2006:386), according to which, in essence, the applicant is not required to provide evidence for its claims or for a link between the contested aid measure and the alleged losses.
49      In that regard, the Court of Justice, in the judgment of 12 July 1990, COFAZ v Commission (C‑169/84, EU:C:1990:301), relied on facts which were not disputed by the Commission in order to find that the contested measure was capable of substantially affecting the applicant’s position on the market concerned. Similarly, in the judgment of 12 December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission (T‑146/03, not published, EU:T:2006:386), although the General Court did indeed rely on the applicant’s statements and approximate figures it submitted in order to find that the contested measure was liable to have a substantial effect on its position on the market concerned, the Court had first held that those statements and figures were not disputed by the Commission and the intervener (judgment of 12 December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, T‑146/03, not published, EU:T:2006:386, paragraph 50).
50      Moreover, according to the Court of Justice, the applicant cannot rely on a relaxation of the burden of proof of a substantial adverse effect on its market position (see, to that effect, judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraphs 51 to 55 and the case-law cited). Accordingly, as observed in paragraph 29 above, although the applicant is not obliged to show that it lost market share precisely because of the contested measure, the case-law requires the applicant to adduce evidence to establish that the contested measure is liable substantially to affect its position on the market concerned (see, to that effect, order of 6 September 2021, MKB Multifunds v Commission, T‑277/20, not published, EU:T:2021:560, paragraph 54, and judgment of 10 May 2023, Ryanair v Commission (SAS II; COVID-19), T‑238/21, not published, EU:T:2023:247, paragraph 21).
51      However, in the present case, the Commission submits that the applicant has neither substantiated the losses which it alleges nor demonstrated that such losses are liable to result from the compensation at issue, while the letter produced in Annex A.3 to the application does not serve to confirm the applicant’s claims. Indeed, as stated above, that letter does not contain any estimate, even an approximate one, of the losses alleged by the applicant and, even if it were assumed that those losses are established, it does not demonstrate a plausible causal link between those losses and the compensation at issue. In particular, it does not establish that that compensation is liable to have repercussions on the prices charged by the applicant and on the number of deliveries which it makes (see paragraph 37 above).
52      Consequently, contrary to what is claimed by the applicant, the letter produced in Annex A.3 to the application does not suffice to establish its standing to bring proceedings.
53      Fourth, it should be observed that the applicant’s argument – that annulment of the contested decision is capable of having legal consequences for it and of improving its position – is concerned with the legal interest in bringing proceedings, in that such an argument is intended to demonstrate the existence of an advantage resulting from that annulment. Such a demonstration does not, however, relate to establishing a substantial effect, which is to be assessed in the light of the criteria established in the case-law referred to in paragraphs 28 to 31 above.
54      Fifth and last, the applicant further maintains, still with a view to demonstrating the likely substantial effect resulting from the compensation at issue, that it is ‘naturally’ affected by that compensation since it is one of the three or four main competitors to Post Danmark, which has the largest market share.
55      Even if it is assumed that the applicant’s argument that it is ‘naturally’ individually affected, made in its observations on the Kingdom of Denmark’s statement in intervention, is admissible, that argument likewise cannot succeed.
56      Even though it is apparent from the evidence that the applicant is indeed one of the three or four main competitors to Post Danmark, that fact cannot by itself give rise to a presumption of the existence of a substantial effect on its market position (see, to that effect, judgment of 22 June 2016, Whirlpool Europe v Commission, T‑118/13, EU:T:2016:365, paragraph 52 and the case-law cited).
57      Moreover, Post Danmark’s significant position on the market concerned as claimed by the applicant, together with the fact that the applicant is one of its three or four main competitors, likewise does not suffice to make a finding that the applicant’s competitive position is liable to be substantially affected by the compensation at issue. Accordingly, unlike the applicants in the case which gave rise to the judgment of 27 April 1995, ASPEC and Others v Commission (T‑435/93, EU:T:1995:79), the applicant has failed to demonstrate in the present case that the number of competing operators concerned was limited, and still less that, on that possibly limited market, the compensation at issue would enable Post Danmark to attract its customers.
58      It thus follows that the respective positions of Post Danmark and the applicant on the market concerned do not serve to demonstrate that a substantial effect on the applicant’s competitive position on that market is liable to arise from the compensation at issue.
59      Consequently, the applicant has failed to establish that its competitive position on the market concerned was liable to be substantially affected by the compensation at issue. It follows that it has not shown that it is individually concerned by the contested decision.
60      In the light of the foregoing, without it being necessary to rule on whether the applicant is possibly directly concerned, the action must be dismissed as inadmissible on the ground that the applicant lacks standing to bring proceedings.
Costs
61      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the Commission and Post Danmark, in accordance with the form of order sought by them.
62      In addition, in accordance with Article 138(1) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of Denmark is therefore to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      Dansk Avis Omdeling Distribution A/S shall bear its own costs and pay those incurred by the European Commission and Post Danmark A/S.
3.      The Kingdom of Denmark shall bear its own costs.
Luxembourg, 26 February 2025.
V. Di Bucci
R. da Silva Passos
Registrar
President
*      Language of the case: English.