EN Official Journal of the European Union C 45/26

Action brought on 17 December 2013 — European Commission v Federal Republic of Germany

(Case C-674/13)

2014/C 45/44

Language of the case: German

Parties

Applicant: European Commission (represented by: T. Maxian Rusche and R. Sauer, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to take all of the measures necessary to enforce immediately and effectively Commission Decision 2012/636/EU of 25 January 2012 on Measure C-36/07 (ex NN 25/07) implemented by Germany for Deutsche Post AG (1) by means of the full recovery of the aid incompatible with the internal market which was granted and the alteration to the aid system in respect of the future, the Federal Republic of Germany has failed to fulfil its obligations under Articles 288 TFEU and 108(2) TFEU, the principle of effectiveness, Article 14(3) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2) and Articles 1, 4, 5 and 6 of the Commission decision;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

By failing to take all of the measures necessary to enforce immediately and effectively Commission Decision 2012/636/EU of 25 January 2012 on Measure C-36/07 (ex NN 25/07) implemented by Germany for Deutsche Post AG by means of the full recovery of the aid incompatible with the internal market which was granted and the alteration to the aid system in respect of the future, the Federal Republic of Germany has, in the view of the Commission, failed to fulfil its obligations under Articles 288 TFEU and 108(2) TFEU, the principle of effectiveness, Article 14(3) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty and Articles 1, 4, 5 and 6 of the Commission decision.

Germany, the Commission argues, refuses to collect data in the context of the implementation of Decision 2012/636/EU in order to make a delineation of the objectively relevant product market for parcel services for the period 2003-2012 (for the purposes of the recovery) and for the period following 2012. As a result, Germany is blocking the implementation of Decision 2012/636/EU. That decision is based on non-regulated postal services both with regard to the recovery of the unlawful and incompatible aid granted in the past and with regard to the abolition of/alteration to the pension subsidy in respect of the future. In order to be able to determine, however, which postal services those are, an analysis of the objectively relevant product market for parcel services is a conditio sine qua non.

The refusal to carry out that analysis prevents Germany from enforcing immediately and effectively the full recovery of the aid incompatible with the internal market which has been granted and from making the alteration to the aid system in respect of the future.

In the alternative, in the event that Germany’s legal view that it could have recourse to final decisions of the competent authorities in the implementation of Decision 2012/636/EU is correct, quod non, Germany should have taken a separate ‘B2B’ parcel service market as a starting point. It is common ground between Germany and the Commission that Deutsche Post AG has not held a market-dominant position on such a separate ‘B2B’ parcel service market at any time since 2003. The ‘B2B’ parcel service market thus comes under non-regulated postal services.

Germany ought therefore to have classified the pension subsidy for those officials assigned to the ‘B2B’ parcel service as aid incompatible with the internal market both when calculating the amount of aid to be recovered for the period 2003-2012 and when altering the aid system for the future. It should have recovered that aid in respect of the past and abolished it in respect of the future.

(1) Notified under document C(2012) 184, OJ 2012 L 289, p. 1.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83, p. 1.