Case T-316/18: Action brought on 22 May 2018 — Mediaservis v Commission

Action brought on 22 May 2018 — Mediaservis v Commission

(Case T-316/18)

Parties

Applicant: Mediaservis s. r. o. (Prague, Czech Republic) (represented by: D. Vosol and C. Schneider, lawyers)

Defendant: European Commission

Form of order sought

— annul Commission decision C(2018) 753 final of 19 February 2018 not to raise objections against State aid for Czech Post for the provision of the universal postal service over the period 2013-2017;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging the infringement of Article 108(2) and (3) TFEU. — The Commission decided not to initiate the procedure provided for in Article 108(2) TFEU, even though it experienced serious difficulties in its assessment of the compatibility of the State aid with the common market.

2. Second plea in law, alleging an insufficient and incomplete examination of the case and failure of the Commission to examine all the facts and points of law brought to its notice by persons, undertakings and associations whose interests may be affected by the granting of the aid and a violation of the duty to state reasons. — The Commission did not examine all issues raised in the applicant’s complaint. Instead, the Commission superficially held that the calculation of net cost was based on an appropriate accounting separation between the cost for the universal service and other costs. — The Commission violated its duty to state reasons in that regard.

3. Third plea in law, alleging a manifest error of assessment regarding the calculation of the net cost and the verification of the absence of over-compensation. — The Commission came to the wrongful conclusion that the costs Česká pošta incurred inside and outside the scope of the universal service had been allocated in line with paragraph 31 of the 2012 SGEI Framework. ( 1 ) — The Commission based its decision insofar on a manifestly unrealistic counterfactual scenario. — The counterfactual scenario accepted by the Commission did not take into account that the Czech Postal Act requires that prices should include all costs incurred. — The calculation of the net cost occurred in violation of paragraph 32 of the 2012 SGEI Framework, since it did not take into account relevant sources of income, even if linked to other activities than SGEI.

4. Fourth plea in law, alleging a manifest error in law regarding the application of paragraph 25 of the 2012 SGEI Framework in conjunction with Annex I Part B of the Postal Directive. ( 2 ) — Although paragraph 25 of the 2012 SGEI Framework and Annex I Part B of the Postal Directive require the net cost calculation to assess the benefits, including intangible benefits as far as possible, to the SGEI provider (to take into account any intangible and market benefits which accrue to the universal service provider), the Commission decision, Annex A.1, dealt only with intangible benefits.

5. Fifth plea in law, alleging a violation of paragraph 51 et seq. of the 2012 SGEI Framework and a violation of the duty to state reasons. — Due to the market behaviour of Česká pošta which aims at driving competitors from the market, the Commission would have been obliged to impose additional requirements necessary to ensure that the development of trade is not affected to an extent contrary to the interests of the Union within the meaning of paragraph 51 et seq. of the 2012 SGEI Framework, but failed to do so. — Even if not under such an obligation, the Commission would have been obliged, against the background of the market share and the market behaviour of Česká pošta, to state concrete reasons why such additional requirements had not been necessary, but it failed to do so.

( 1 ) Commission Communication, European Union framework for State aid in the form of public service compensation (2011) (OJ 2012 C 8, p. 15).

( 2 ) 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 last amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).