OPINION OF ADVOCATE GENERAL

BOT

delivered on 30 June 2011 ( )

Joined Cases C‑463/10 P and C‑475/10 P

Deutsche Post AG (C‑463/10 P),

Federal Republic of Germany (C‑475/10 P)

v

European Commission

(Appeal – State aid – Measures implemented by the German authorities in favour of Deutsche Post AG – Regulation (EC) No 659/1999 – Article 10(3) – Article 230 EC – Admissibility of an action for annulment brought against a decision requiring information to be provided – Concept of ‘act open to challenge’ – Principle of effective judicial protection – Capacity of Deutsche Post AG to bring proceedings)





1. These cases should lead the Court to clarify whether a decision by which the European Commission requires a Member State to provide information concerning allegedly unlawful aid is a an act open to challenge.

2. By their appeals, Deutsche Post AG ( ) and the Federal Republic of Germany claim that the orders of the General Court of the European Union of 14 July 2010 in Case T‑570/08 Deutsche Post v Commission and Case T‑571/08 Germany v Commission should be set aside. ( ) By those orders, the General Court dismissed as inadmissible their actions for the annulment of the decision by which the Commission, in accordance with Article 10(3) of Regulation (EC) No 659/1999, ( ) required the Federal Republic of Germany to provide information concerning Deutsche Post’s costs and revenue for the period from 1989 to 2007. ( )

3. In this Opinion, I shall propose that the Court uphold these appeals, set aside the orders under appeal and give final judgment on the admissibility of the actions at first instance.

4. I shall argue that, despite the preparatory nature of an information injunction, that act is the culmination of the investigation procedure initiated by the Commission and produces binding and immediate legal effects vis‑à‑vis the Member State concerned. I shall therefore state that that act must be amenable to judicial review so as to ensure effective judicial protection for that State, in accordance with the Court’s case‑law.

I – The European Union legal framework

5. The Regulation codified the practice of the powers conferred on the Commission by the EC Treaty. It lays down specific rules which have been formulated in accordance with the case-law of the Court of Justice. ( )

6. When a Member State notifies the Commission of a plan to grant new aid, that State is required, pursuant to Article 2(2) of the Regulation, to provide ‘all necessary information in order to enable the Commission to take a decision pursuant to Articles 4 and 7 [of the Regulation]’.

7. Article 5(1) and (2) of the Regulation provide as follows:

‘1. Where the Commission considers that information provided by the Member State concerned with regard to a measure notified pursuant to Article 2 is incomplete, it shall request all necessary additional information. Where a Member State responds to such a request, the Commission shall inform the Member State of the receipt of the response.

2. Where the Member State concerned does not provide the information requested within the period prescribed by the Commission or provides incomplete information, the Commission shall send a reminder, allowing an appropriate additional period within which the information shall be provided.’

8. Articles 10 to 13 of the Regulation form part of Chapter III of the Regulation, headed ‘Procedure regarding unlawful aid’.

9. Article 10 of the Regulation is worded as follows:

‘1. Where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.

2. If necessary, it shall request information from the Member State concerned. Article 2(2) and Article 5(1) and (2) shall apply mutatis mutandis.

3. Where, despite a reminder pursuant to Article 5(2), the Member State concerned does not provide the information requested within the period prescribed by the Commission, or where it provides incomplete information, the Commission shall by decision require the information to be provided ... The decision shall specify what information is required and prescribe an appropriate period within which it is to be supplied.’

10. Pursuant to Article 11 of the Regulation, the Commission may, after giving the Member State concerned the opportunity to submit its comments, adopt a decision requiring that State to suspend the aid in question and/or provisionally to recover it until the Commission has taken a decision on the compatibility of the aid with the common market.

11. Article 12 of the Regulation is worded as follows:

‘If the Member State fails to comply with a suspension injunction or a recovery injunction, the Commission shall be entitled, while carrying out the examination on the substance of the matter on the basis of the information available, to refer the matter to the Court of Justice … direct and apply for a declaration that the failure to comply constitutes an infringement of the Treaty.’

12. Finally, as provided in Article 13(1) of the Regulation:

‘The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 7. If a Member State fails to comply with an information injunction, that decision shall be taken on the basis of the information available.’

II – Facts

13. Following complaints lodged by private operators, the Commission found that Deutsche Post priced door-to-door parcels below marginal costs and that that aggressive rebate policy did not fall within the undertaking’s universal service obligation.

14. By decision of 19 June 2002, ( ) the Commission considered that the losses totalling EUR 572 million which resulted from that policy constituted State aid incompatible with the common market and ordered the Federal Republic of Germany to take the necessary steps to recover the aid from Deutsche Post.

15. The Commission subsequently received further complaints from private competitors alleging that Deutsche Post enjoyed significantly higher financial benefits than those determined in Decision 2002/753. The Commission considered it necessary to address comprehensively the distortions of competition which resulted from the State resources granted to Deutsche Post by initiating, on 12 September 2007, a new formal investigation procedure in accordance with Article 88(2) EC. ( )

16. By a judgment delivered on 1 July 2008, ( ) the Court of First Instance annulled Decision 2002/753, ruling that the Commission had infringed Article 87(1) EC in its examination of the compatibility of the aid in question with the common market.

17. On 17 July 2008, the Commission sent the Federal Republic of Germany a request for information which included a questionnaire on Deutsche Post’s revenue and costs for the period from 1989 to 2007. On 12 and 21 August 2008, the Commission sent a reminder letter, again asking that State to supply the information requested. ( )

18. In its replies of 5 August, 14 August and 29 September 2008, the Federal Republic of Germany confirmed that it refused to send the data relating to Deutsche Post’s products and charges after 1995, taking the view that the Commission’s examination should be confined to the period from 1989 to 1994 and that responding to that questionnaire would require a disproportionate investment in terms of time and work.

19. By letter of 30 October 2008, the Commission required the Federal Republic of Germany, pursuant to Article 10(3) of the Regulation, to provide, within 20 days, all the information necessary to reply to that questionnaire. The Commission added that, if, despite that injunction, the German authorities did not provide the information requested within the prescribed period, it would take its decision on the basis of the information available, in accordance with Article 13(1) of the Regulation.

20. In a judgment delivered on 2 September 2010, ( ) the Court confirmed, on appeal, the annulment of Decision 2002/753.

III – Procedure before the General Court and orders under appeal

21. By applications lodged at the Registry of the General Court, Deutsche Post (Case T‑570/08) and the Federal Republic of Germany (Case T‑571/08) each brought an action for annulment against the act at issue.

22. By separate documents lodged at the Registry of the General Court on 19 March 2009, the Commission raised, in each of those cases, an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court.

23. The General Court upheld that objection, ruling that the act at issue did not constitute an act open to challenge within the meaning of the case‑law.

24. The General Court ( ) first recalled the principles laid down by the Court of Justice in IBM v Commission ( ) and Athinaïki Techniki v Commission. ( ) First, it pointed out that it is necessary to look to the substance of an act, and not to its form, in order to determine whether it constitutes an act open to challenge as referred to in Article 230 EC. Secondly, it stated that only measures which establish definitively the Commission’s position and which produce legal effects constitute acts open to challenge. Consequently, the General Court examined whether, as the Commission maintained, the act at issue constitutes an intermediate measure the purpose of which is to prepare for the Commission’s final decision and which has no legal effects.

25. With regard to the effects of the act at issue, the General Court stated that the Community legislature has not provided for any sanction against the Member State where it fails to comply with the Commission’s injunction. ( ) This makes it possible to distinguish the act at issue from the injunctions to suspend and to recover aid which the Commission is entitled to adopt pursuant to Article 11 of the Regulation. If a Member State failed to comply with either of those two injunctions, Article 12 of the Regulation would entitle the Commission to refer the matter to the Court directly and apply for a declaration that the Treaty had been infringed.

26. The General Court then held that the act at issue is only an intermediate measure enabling the Commission to prepare for its final decision. ( ) It ensures observance of the rule that the parties should be heard by enabling the Commission to obtain the information necessary for determining whether the aid is compatible with the common market, but it does not prejudge the Commission’s final decision, since the Commission may still, at that stage, conclude that there is no State aid, that such aid is compatible or that it is incompatible with the common market.

27. Next, the General Court rejected the applicants’ arguments seeking to draw a parallel between the act at issue and the decision by which the Commission initiates the formal investigation procedure concerning the aid. ( ) The applicants, referring to the case-law relating to the admissibility of actions brought against such a decision, maintained that, despite its provisional nature, that decision was regarded as an act open to challenge. ( ) The General Court refused to make such a parallel on the ground that that the effects of that decision are not comparable to those of the act at issue.

28. So far as concerns the specific legal effects of the act at issue on the situation of the Federal Republic of Germany, the General Court found that that act does not have the effect of closing the formal investigation procedure. ( ) It is only the Member State’s refusal to comply with the injunction to provide the information requested that allows the Commission to close the procedure.

29. As regards the alleged deterioration in the procedural situation of Deutsche Post and the Federal Republic of Germany in the event of non‑compliance with the act at issue, the General Court pointed out, in paragraphs 42 of the orders under appeal, that it is the refusal of the German authorities to provide the Commission with the information required in the act at issue, and not the act at issue as such, which is capable of depriving the parties concerned of the possibility of alleging incompleteness of the factual basis of the final decision. According to the General Court, if the German authorities consider that the information requested by the Commission is not necessary in order to establish the facts or that the research requested is too onerous in relation to the expected result, they may choose to ignore the injunction issued to them.

30. In any event, the General Court pointed out, at paragraphs 43 of the orders under appeal, that the act at issue cannot be regarded as terminating the Commission’s obligation to substantiate its final decision and as barring Deutsche Post and the Federal Republic of Germany from challenging its basis in any way.

31. As regards observance of the rights of defence of the Federal Republic of Germany, the General Court pointed out that these were safeguarded by the possibility of contesting the facts alleged by the Commission throughout the administrative procedure and that they remain so through the possibility of bringing an action against the final decision.

32. The General Court concluded, at paragraph 46 of the order in Deutsche Post v Commission and at paragraph 45 of the order in Germany v Commission that the act at issue did not constitute an act open to challenge as referred to in Article 230 CE.

IV – Procedure before the Court of Justice and forms of order sought by the parties

33. In Case C‑463/10 P, Deutsche Post asks the Court to set aside the order in Deutsche Post v Commission and order the Commission to pay the costs.

34. The Commission, for its part, asks the Court to dismiss the appeal and order Deutsche Post to pay the costs.

35. In Case C‑475/10 P, the Federal Republic of Germany asks the Court to set aside the order in Germany v Commission and order the Commission to pay the costs.

36. The Commission, for its part, asks the Court to dismiss the appeal and order the Federal Republic of Germany to pay the costs.

37. By order of 15 December 2010, the President of the Court decided to join Cases C‑463/10 P and C‑475/10 P for the purposes of the oral procedure and the judgment.

V – The appeals

A – The parties’ arguments

38. Deutsche Post and the Federal Republic of Germany claim that the orders under appeal are vitiated by a number of errors of law in that the General Court did not classify the act at issue as an act open to challenge as referred to in Article 230 EC. They claim that, contrary to what the General Court held, an information injunction pursuant to Article 10(3) of the Regulation produces binding legal effects and therefore constitutes an act open to challenge as referred to in Article 230 EC.

39. They rely on five grounds of appeal. The first three grounds allege failure to have regard, respectively, to Article 249 EC, to the Court’s case‑law relating to the nature of acts open to challenge and to the legal effects of the act at issue. The fourth ground alleges breach of the principle of effective judicial protection and the fifth ground alleges failure to have regard to the division of powers between the Commission and the Member States.

1. The first ground, alleging failure to have regard to Article 249 EC

40. Deutsche Post and the Federal Republic of Germany point out that Article 10(3) of the Regulation expressly empowers the Commission to adopt a formal decision. Pursuant to the fourth paragraph of Article 249 EC, such an act is binding in its entirety upon those to whom it is addressed.

41. Deutsche Post and the Federal Republic of Germany also refer to the principle of cooperation in good faith referred to in Article 10 EC and to the sixth recital in the preamble to the Regulation in order to demonstrate the binding nature of the act at issue. A Member State which does not discharge the obligation laid down in the act at issue infringes the Treaty and accordingly lays itself open to Treaty infringement proceedings.

42. The binding nature of the act at issue also affects Deutsche Post as the beneficiary of the aid. Indeed, the Federal Republic of Germany must of necessity obtain that undertaking’s cooperation in order to discharge its obligation. Moreover, only the latter has the information requested.

43. The Commission submits, in essence, that, in accordance with the case‑law, it is necessary to take as a basis, not the form of an act, but its substance in order to determine whether an action for annulment can be brought. Only measures capable of producing binding legal effects of such a kind as to affect the applicant’s interests constitute acts open to challenge as referred to in Article 230 EC. ( ) However, a decision within the meaning of Article 249 EC does not automatically fulfil that criterion. ( )

2. The second ground, alleging failure to have regard to the case‑law relating to the nature of acts open to challenge

44. The Federal Republic of Germany contests the application to this case of the principle established in IBM v Commission, ( ) that an act is open to challenge only if it is a measure definitively laying down the position of the institution on the conclusion of a procedure, and not a provisional measure. Referring to the Court’s case‑law, the Federal Republic of Germany submits that such a principle is not capable of being applied in the context of State aid.

45. Deutsche Post points out that the provisional nature of information injunctions and suspension injunctions does not mean that those acts have no independent legal effect. ( ) In that regard, the Court has already recognised that suspension injunctions constitute acts open to challenge. ( )

46. The Commission points out that no action may be brought against acts not definitively laying down its position but serving only to pave the way for its final decision. In its view, if an action were possible against preparatory acts, the beneficiary of an aid could slow down the decision‑making process considerably by systematically challenging any preparatory act in court. Moreover, since preparatory acts do not lay down any definitive Commission position, the Courts of the Union could find it necessary to prejudge the final decision in order to be able to rule on the lawfulness of the provisional act. Finally, any legal defects in the preparatory acts may be relied upon in an action directed against the definitive act for which they represent a preparatory step. ( )

47. The principles established in IBM v Commission have been applied by the Courts of the Union not only in the context of competition law, but also in a whole series of other areas. Moreover, the case‑law concerning the initiation of a procedure regarding State aid confirms that actions for annulment against preparatory acts are, in principle, inadmissible. Only where the decision to initiate the formal investigation procedure directly entails legal effects which are different from that of the final decision is an action admissible against such a decision to initiate.

3. The third ground, alleging failure to have regard to the legal effects of an information injunction

48. Deutsche Post and the Federal Republic of Germany submit that, contrary to what the General Court held, ( ) an information injunction pursuant to Article 10(3) of the Regulation entails binding legal effects to the detriment of the Member State and of the undertaking concerned. In the view of the Federal Republic of Germany, such a decision closes the administrative procedure regarding State aid in so far as it terminates the Commission’s obligation to establish the facts on its own responsibility. In the absence of a response from the Member State, such an injunction enables the Commission to give its decision on the basis of the documents in the file. This entails a break in the course of the procedure, since the stage of cooperation between the Member State and the Commission gives way to a formal stage, the timetable and content of which are directly determined by the Commission.

49. The appellants add that non‑compliance with the injunction alleviates the burden of proof on the Commission and prevents them from relying in a subsequent action on the defectiveness on the facts of the final decision. In addition, they point out that an action against the final decision does not serve to remedy the consequences arising from the Member State’s failure to cooperate. In order to safeguard their rights of defence, the appellants are therefore forced to comply with the injunction.

50. Finally, the appellants note that the absence of sanctions, referred to in paragraph 29 of the order in Deutsche Post v Commission and paragraph 28 of the order in Germany v Commission, is not decisive.

51. The Commission contends that, in a procedure regarding State aid, the obligation for the Member State concerned to supply the information requested results from Article 10 EC rather than from the act at issue. In so far as it has no other investigative powers, the Commission cannot establish the facts without the cooperation in good faith of the Member States. Consequently, it is not the information injunction but the Member State’s refusal to comply with that injunction which enables the Commission to decide on the basis of the information available and to bring Treaty infringement proceedings. However, such proceedings are not such as to affect the interests of the Federal Republic of Germany and even less those of Deutsche Post. In the same way, the act at issue, which is intended to ensure observance of the rule that the parties should be heard, does not affect the legal position of that Member State.

52. Finally, the Commission stresses the fact that no sanction results from non‑compliance with the act at issue. The fact that the parties will no longer be able to rely, at a later stage, on facts which they have not disclosed during the administrative procedure does not constitute a sanction, but the corollary of the rule that the parties should be heard.

4. The fourth plea, alleging breach of the principle of effective judicial protection

53. Deutsche Post and the Federal Republic of Germany claim that the orders under appeal infringe the principle of effective judicial protection.

54. The Courts of the Union must be able, on the one hand, to verify whether the Commission has complied with the procedural requirements laid down by the Regulation and, on the other, to review the proportionality and necessity of the information requested by the Commission. According to the applicants, the interests of the parties concerned are not sufficiently safeguarded by the fact that the final decision is open to challenge.

55. The Federal Republic of Germany further claims that the General Court infringes the rule of law at paragraphs 42 of the orders under appeal in so far as it suggests that that Member State is free to comply or not to comply with the act at issue. A State governed by the rule of law must not be led to infringe an obligation imposed by the Commission. Moreover, the procedural disadvantages associated with such conduct are extremely serious.

56. The Commission, first of all, counters that the appellants enjoy effective judicial protection in so far as they are entitled to raise the unlawfulness of the act at issue in an action brought against the final decision.

57. The Commission, secondly, distinguishes the procedure for reviewing State aid from that laid down in relation to anticompetitive practices. In Regulation No 17, ( ) the Community legislature expressly provided that an undertaking may bring an action against an injunction issued by the Commission. It also provided that the Commission may impose fines and periodic penalty payments where the undertaking fails to comply with such an injunction. The two systems are therefore not comparable.

5. The fifth plea, alleging failure to have regard to the division of powers between the Commission and the Member States

58. The Federal Republic of Germany submits that the General Court failed to have regard to the system of division of powers by holding that Member States can choose to ignore the injunction issued to them. They can therefore refuse to supply the information which they consider not to be necessary in order to establish the facts. According to the Federal Republic of Germany, such reasoning results in a transfer to the Member States of the obligation to establish the facts and determine the subject-matter of the procedure.

59. The Commission counters that the orders under appeal do not entail any transfer of competence. Since the Commission does not have any power of investigation, it is dependent on the cooperation of the Member State, of the beneficiary of the aid and of the interested third parties for clarification of the facts. However, the definition of what is to be regarded as information necessary to enable the Commission to take its final decision concerning a State aid is a matter for that institution.

B – My assessment

60. I am of the opinion that the act at issue constitutes an act open to challenge as referred to in Article 230 EC.

61. In order to reach that conclusion, it is necessary to recall, first, the Court’s case‑law relating to the nature of acts open to challenge and the procedural framework of which the act at issue forms part.

1. Preliminary observations

a) The Court’s case‑law relating to nature of acts open to challenge in an action for annulment

62. The Court’s case‑law relating to the nature of acts open to challenge in an action for annulment was developed several decades ago in Commission v Council, ‘ERTA’, ( ) and IBM v Commission. ( ) That case‑law has been applied consistently in the context of State aid and, most recently, in Athinaïki Techniki v Commission, and NDSHT v Commission. ( )

63. In order for an act to be the subject‑matter of an action for annulment, two conditions must be satisfied.

64. Firstly, in accordance with Article 230 EC, it must be an act adopted by one of the institutions of the Union.

65. Secondly, it must be an act capable of producing binding legal effects. In other words, the interests of the applicants must be affected and a distinct change must be brought about in their legal position. The form in which an act or decision is adopted is, in principle, immaterial. ( ) It is therefore necessary to look to its substance in order to ascertain whether or not it produces such effects. ( )

66. That case‑law enables the scope of the action to be extended to acts which cannot formally be classified as ‘decisions’ but which, in substance, produce binding legal effects. It also serves to ensure that the institutions cannot avoid review by the Courts of the Union by simply disregarding formal requirements such as the title of the act, the statement of reasons on which it is based or reference to the provisions which constitute its legal basis.

67. This second condition is of particular importance when it is a matter of assessing whether an act which forms part of an administrative procedure involving several stages, such as that relating to the review of State aid, is open to challenge. ( )

68. In this field, the Commission adopts numerous acts by which it not only makes a definitive assessment of the classification of a measure and its compatibility with the common market, but also decides on the measures of investigation and organisation of the procedure. However, not all of those acts entail legal effects vis-à-vis the Member States and undertakings concerned.

69. The Court therefore assigns those acts to different categories.

70. The first are acts by which the Commission lays down definitively its position at the end of the procedure. Those are acts open to challenge in so far as they produce binding legal effects and are not followed by any other act capable of giving rise to an action for annulment.

71. That is true of decisions by which the Commission, at the end of the formal investigation procedure referred to in Article 88(2) EC, considers that the measure in question does not constitute aid or that it is compatible or incompatible with the common market. ( ) That is also true of the act by which the Commission classifies a complaint relating to an allegedly unlawful aid. ( )

72. The second are intermediate acts whose purpose is to pave the way for the final decision.

73. On the one hand, we find measures which, although adopted in the course of the preparatory procedure, are the culmination of a distinct stage of the main procedure and produce legal effects. ( )

74. We find numerous examples in the context of the procedures for the implementation of Articles 81 EC and 82 EC. Those are arranged in several successive stages, such as the preliminary investigation stage, the inter partes inquiry stage, then the hearing stage. Thus, in Hoechst v Commission ( ) and Orkem v Commission, ( ) the Court accepted that the decisions by which the Commission requests information from the undertakings or conducts on‑the‑spot investigations are acts open to challenge.

75. In the same way, the Court has held that the decision by which the Commission initiates the formal investigation procedure following its preliminary analysis is an act open to challenge. ( ) The Court takes the view that such a decision entails legal effects vis‑à‑vis the Member State and undertakings concerned, since the Commission can order the suspension of the measure. According to the Court, those effects are independent of the final decision and are not capable of being rectified in proceedings against the final decision, thus depriving the applicants of sufficient judicial protection ( )

76. On the other hand, we find measures of a ‘purely’ ( ) or ‘simply’ ( ) preparatory character. Such measures constitute only one of the stages enabling the institution to adopt its final decision. They do not produce any legal effects and are not, in accordance with the case‑law, acts open to challenge. From that standpoint, the Court takes the view that any defects in such measures may be relied upon in an action directed against the final decision, for which they represent a preparatory step. ( ) That is true, in competition law, of the act by which the Commission communicates its objections concerning the undertakings.

77. Reference to that case‑law reveals the imperatives which guide the Court’s action in this field.

78. As we have just seen, the Court seeks to ensure effective judicial protection of an individual’s rights under European Union law. In Athinaïki Techniki v Commission, the Court noted that, as the European Union is a community based on the rule of law, the procedural rules governing actions must be interpreted in such a way as to ensure that those rules can contribute to the attainment of such an objective. ( ) That is why preparatory acts capable of producing legal effects and constituting the culmination of a procedure ancillary to the main procedure must, according to the Court, be acts against which an action for annulment may be brought.

79. Nevertheless, the Court also seeks to avoid a multiplication of actions against preparatory measures, which could paralyse the activity of the institutions. It also aims to preserve the division of powers and the system of legal remedies laid down by the Treaty. The Court is, accordingly, disinclined to accept the admissibility of an action against a preparatory act where such an action obliges it to arrive at a decision on questions on which the Commission has not yet had an opportunity to state its position. That would have the consequence of anticipating the arguments on the substance of the case and of confusing different procedural stages, both administrative and judicial. ( )

80. That is the case-law context within which the act at issue must be classified. Is it, as the General Court asserts in the orders under appeal, a measure of a ‘purely preparatory character’, which is not actionable, or is it, as Deutsche Post and the Federal Republic of Germany claim, an act open to challenge?

81. In order to answer that question, it is also necessary to examine the procedural framework of which the act at issue forms part.

b) The procedural framework of which the act at issue forms part

82. In the context of the procedure for reviewing State aid, the Commission has exclusive competence as regards the assessment of the compatibility of an aid with the Treaty. ( ) In particular, the Commission is required to ensure that no aid contrary to the Treaty is granted or maintained, in accordance with Article 87 EC. ( )

83. In order to ensure the implementation of that provision and to reconcile the Member States’ right to take action with the guarantee of undistorted competition within the Union, the Treaty has laid down a procedure for the review and prior authorisation of State aid, in the course of which a dialogue develops between the Member State concerned and the Commission. The first is bound by an obligation of cooperation in good faith. As for the second, it has powers of investigation and must, for that purpose, comply with a number of procedural requirements.

84. It is clear from the sixth recital in the preamble to the Regulation that, in accordance with Article 10 EC, Member States must cooperate with the Commission. This means that they are required, on the one hand, to notify to the Commission any plans to grant new aid and, on the other, to provide that institution with all the information necessary to enable it to assess the compatibility of the aid with the common market. Those two obligations are intimately linked since, under Article 5 of the Regulation, the Commission may consider that the notification has been withdrawn if a Member State refuses to provide the additional information which it needs within the prescribed period.

85. If that is the case, the Commission undertakes the examination of the aid in accordance with Articles 10 to 15 of the Regulation, relating to unlawful aid. ( )

86. In that context, the Commission has powers of injunction enabling it to obtain information and limit the damage associated with implementation of the aid which has not been notified.

87. Under Article 10 of the Regulation, the Commission is empowered to obtain from the Member State concerned all the documents, information and data necessary for the examination of the compatibility of the aid with the common market. This is the only power of investigation conferred on the Commission in the context of the procedure for reviewing State aid. It is a graduated power. The Commission may request ( ) that information from the Member State concerned, sending it, if necessary, a reminder and allowing an additional period. Where appropriate, it may issue an injunction to it. ( )

88. It is important to point out that the Commission can use that power of injunction only in the context of a procedure regarding unlawful aid, that is to say, where the Member State fails to notify a plan to grant new aid or where, despite a notification, it does not provide the additional information requested by the Commission, in accordance with Article 5(3) of the Regulation.

89. The injunction must specify what information is required and prescribe an appropriate period within which it is to be supplied.

90. Where the Member State fails to comply with its obligation of cooperation and refuses to provide the information requested, the Commission is empowered to terminate the procedure and may adopt a decision, solely on the basis of the information available to it, on the question whether or not the aid is compatible with the common market. Those principles were laid down by the Court in France v Commission ( ) and specifically embodied in Article 13(1) of the Regulation.

91. The other powers of injunction, provided for in Article 11 of the Regulation, must, for their part, enable the Commission to adopt provisional measures to limit the damage associated with implementation of the aid which has not been notified. The Commission may thus require the Member State concerned to suspend the aid or provisionally to recover it from the beneficiaries until the Commission has taken a decision on the compatibility of the aid with the common market. ( ) If the Member State fails to comply with one of those injunctions, Article 12 of the Regulation expressly authorises the Commission to refer the matter to the Court and apply for a declaration that the Treaty has been infringed.

92. In Italy v Commission [2001], the Court held that the suspension injunction is an act against which an action for annulment may be brought, either by the beneficiary undertaking or by the Member State concerned. It took the view that that act has an immediately binding character vis‑à‑vis the Member State and undertakings concerned and entails irreversible consequences which an action for annulment against the final decision does nothing to eradicate. ( )

93. The description of that procedural framework allows us to draw two conclusions.

94. Firstly, I note that the Member State is bound by a duty of genuine cooperation. Like the Commission, it must collaborate in good faith with a view to overcoming difficulties raised by the assessment of the compatibility of an aid, whilst observing the Treaty provisions. ( )

95. Secondly, I note that the Community legislature imposes different sanctions for non‑compliance by the Member State with an injunction issued by the Commission depending on whether that injunction seeks to obtain information or is designed to suspend or provisionally recover aid. That is very clear from the wording of the twelfth recital in the preamble and from Articles 12 and 13 of the Regulation.

96. Where the Member State fails to comply with an information injunction, the Commission is entitled to decide solely on the basis of the information available. However, where that State refuses to suspend or provisionally recover aid, the Commission is authorised to refer the matter to the Court direct.

97. In my opinion, that distinction is explained in terms of the consequences entailed by the Member State’s refusal to cooperate.

98. In the first case, the information injunction is designed to provide the Commission with the fullest possible clarification of the facts before it adopts a decision capable of affecting the interests of the Member State concerned. Consequently, if the Member State refuses to cooperate, its conduct is liable, in the first place, to affect its own interests.

99. In the second case, on the other hand, injunctions to suspend and provisionally recover aid must enable the Commission to restore, without delay, effective competition within the common market. If the Member State refuses to comply with them, its conduct no longer affects only its own interests, but it could also cause serious and immediate damage to competitors, which likewise affects the proper functioning of the market.

100. Does that difference none the less justify the assumption that an information injunction is not an act open to challenge, in contrast to injunctions to suspend and recover aid?

101. I do not think so. Although the act at issue is clearly preparatory to the final decision, it nevertheless satisfies all of the conditions laid down by the case‑law in order to form the subject‑matter of an action for annulment.

2. The application to this case of the Court’s case‑law

102. I would reiterate that, under the case‑law, a preparatory act is open to challenge where it represents the culmination of a distinct stage of the main procedure and produces legal effects.

103. Firstly, I believe that the act at issue does indeed represent the culmination of the investigation procedure initiated by the Commission. The information injunction even represents the heart of the preparatory inquiry stage of the procedure, during which the Member State is required to cooperate.

104. That power is wide since the Commission can ask the Member State to provide it with any documents, information and data which appear to it to be necessary ( ) for the assessment of the aid, since the Commission is obliged only to specify what items are required. That right therefore implies the power to seek diverse information which is not yet known or precisely identified by the Commission, such as the amount of the aid in question, its nature, the beneficiary undertakings or the period during which it was paid. Nevertheless, if the institution meets with a refusal to cooperate on the part of the Member State concerned, it becomes difficult for it to gather the material necessary for the assessment of the aid. The Commission has no other powers of investigation, in contrast to those conferred on it in competition law under Regulation No 1/2003. ( ) Thus, where the Member State fails to discharge its duty of cooperation and refuses to provide the information requested, the Commission is entitled to adopt a decision solely on the basis of the material available to it. As the Court has expressly recognised, the Commission is thus ‘empowered to terminate the procedure’. ( )

105. Secondly, I think that the act at issue produces binding and immediate legal effects vis‑à‑vis the Member State concerned.

106. In the first place, it takes the form of a decision, which, as stated in Article 249 EC, is binding in its entirety upon the person to whom it is addressed. In addition, an injunction inherently involves a command to act, which imposes on the Member State concerned an obligation of immediate and effective execution.

107. Secondly, it is clear from the wording of Article 10(2) and (3) of the Regulation that the Community legislature intended to distinguish the injunction from the simple request for information referred to in Article 10(2) of the Regulation. The latter is not, as such, actually binding at all.

108. That distinction makes sense only if the injunction has binding force vis‑à‑vis the Member State concerned and entails legal consequences if the latter does not comply with it.

109. Indeed, the Commission is entitled to assess the compatibility of the aid solely on the basis of the information available.

110. Moreover, the Commission is free to bring an action for failure to comply with obligations against the Member State for infringement of the Treaty. I would point out that the State in question has not notified the aid, which has therefore been put into effect unlawfully, and refuses to cooperate by providing the information requested by the Commission.

111. Contrary to what the Commission contends, the bringing of such an action is not insignificant. The action for a declaration that a Member State has failed to fulfil its obligations under the Treaty has the function of sanctioning a breach of European Union law imputable to the Member State and of ensuring the effective restoration of Community legality. The judgment given by the Court, which is declaratory in character, therefore involves, pursuant to Article 228 EC, an obligation of execution, failure to comply with which may be sanctioned by a further action for failure to fulfil Treaty obligations or by the imposition of penalty payments. Furthermore, it must not be forgotten that the judgment establishing a breach of obligations may put the Member State’s liability in issue before the national courts.

112. I can therefore hardly share the opinion of the General Court that the Member State ‘can choose to ignore the injunction issued [to it]’ by the Commission. ( ) Indeed, I cannot lead a Member State to fail to comply with its obligations, to infringe the provisions of European Union law and to lay itself open to the bringing of legal proceedings. As the Federal Republic of Germany submits, that is actually contrary to the rule of law and to effective judicial protection.

113. On the basis of all those factors, I therefore believe that the act at issue entails binding legal effects vis‑à‑vis the Member State concerned.

114. That act must therefore be subject to judicial review.

115. The recognition of a power of coercion for the Commission, which gives rise, moreover, to the possibility of bringing Treaty infringement proceedings against the Member State, must, in my opinion, go hand in hand with the recognition of procedural guarantees for the Member States.

116. The Courts of the Union should be able to satisfy themselves that the Commission has complied with the procedural conditions laid down in Articles 5(2) and 10(2) of the Regulation before it adopts the final decision.

117. They should, in addition, be able to examine the nature, necessity and proportionality of the information requested by the Commission.

118. As we have seen, the wording of the Regulation indicates that requests for information may have a very wide scope, since the Commission is entitled to request all information which it considers necessary, ( ) being obliged only to specify what ( ) information is required. The Courts of the European Union should therefore be able to satisfy themselves that the information requested could actually be considered necessary in the light of the objective pursued by the Commission in the formal investigation procedure and does not go beyond the scope of that procedure.

119. That review therefore does not cover the assessment, on the substance, of the compatibility of the aid with the common market and must not lead the Courts of the Union to arrive at a decision on questions on which the Commission has not yet had an opportunity to state its position, thus avoiding any anticipation of the proceedings on the substance. In the present cases, the act at issue does not set out any provisional opinion as to the existence of an aid or its compatibility with the common market. The bringing of an action for annulment against the act at issue should therefore not create any risk of confusing different procedural stages, both administrative and judicial.

120. That upstream review would serve to avoid the situation in which a Member State has to await the adoption of the final decision in order to plead, in an action brought against that decision, the unlawfulness of the injunction. Such a situation would be liable to compromise both the proper conduct of the administrative procedure and the sound administration of justice.

121. Two scenarios serve to illustrate this point.

122. In the first scenario, let us suppose that the Member State fails to comply with the injunction because it considers, rightly or wrongly, that the procedural rules have not been observed or that the information requested is disproportionate.

123. While awaiting the adoption of the final decision, the Member State therefore finds itself in breach of provisions of European Union law and the bringing of Treaty infringement proceedings is not the appropriate legal remedy to enable it to plead the unlawfulness of the injunction. As for the Commission, it must adopt a decision which is not based on complete and reliable evidence.

124. In the second scenario, let us suppose that the Member State complies with the Commission’s injunction before pleading its unlawfulness in the action brought against the final decision. That situation does not serve to ensure sufficient judicial protection against any irregularities by which that injunction may have been vitiated. Information has been provided and has guided the Commission’s assessment. However, in some cases, it may seem difficult to assess the impact of that information on the course of the procedure. Thus, even where the action brought against the final decision is upheld, I am not certain that all the effects entailed by the injunction can be eradicated.

125. The solution which I propose, although it actually leads to a multiplication of intermediate actions, should not impede the Commission’s activity. I know that the bringing of an action for annulment against an act does not remove the obligation for the person to whom it is addressed to comply with it, bearing in mind that the action does not have suspensory effect and in so far as no suspension of operation has been ordered by the judge hearing an application for interim measures. ( )

126. Furthermore, that solution seems to me to be perfectly in line with the principles established in competition‑law cases.

127. Indeed, it is unambiguously clear from the legislation and from the Court’s case‑law that requests for information made by the Commission in the context of the control of anti-competitive practices are acts open to challenge as referred to in Article 230 EC. ( ) Such requests for information were provided for in Article 11 of Regulation No 17 ( ) before being codified in Article 18 of Regulation No 1/2003. The information requested by the Commission must be necessary, as must be that requested during the procedure for reviewing State aid. In the context of competition‑law cases, this means that the Court has the power to satisfy itself that the information requested does not exceed what is necessary to enable the Commission to define the infringement, to determine its duration and to identify the circle of undertakings involved. ( )

128. On the basis of those factors and in the light of the foregoing considerations, I think that the act at issue must also be amenable to judicial review.

129. Consequently, I am of the view that the act at issue is an act open to challenge.

130. The appeals brought by the appellants are therefore well founded and the orders under appeal must, accordingly, be set aside.

VI – The consequences of setting aside the orders under appeal

131. Pursuant to the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if it quashes the decision of the General Court, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

132. In Case C‑475/10 P, the objection of inadmissibility raised by the Commission against the action brought by the Federal Republic of Germany must, on the basis of the foregoing arguments, be dismissed. The action for annulment brought by that State must therefore be held admissible.

133. In Case C‑463/10 P, the Commission has put forward a second plea in support of its objection of inadmissibility of the action brought by Deutsche Post, alleging that the latter does not have standing to bring proceedings.

134. I am of the opinion that the Court has all the information it needs to give a ruling on that plea.

A – The parties’ arguments

135. The Commission contends that Deutsche Post is neither individually nor directly concerned by the act at issue for the purposes of the fourth paragraph of Article 230 EC.

136. As regards individual concern, the Commission points out that the act at issue is addressed only to the Federal Republic of Germany and that it does not impose any obligations on Deutsche Post. As regards direct concern, the Commission maintains that the execution of the injunction allows the Member State a margin of discretion. It is the Member State which determines to whom the injunction is to be addressed and how the information requested is to be obtained.

137. Deutsche Post disputes those assessments. It considers itself to be distinguished individually within the meaning of Plaumann v Commission, ( ) since it is the only holder of the information requested and the only undertaking required to repay the aid in question. Deutsche Post also considers that it is directly concerned by the act at issue since, contrary to what the Commission maintains, the Federal Republic of Germany has no margin of discretion as regards the execution of the injunction. There is no possible uncertainty as regards the information required by the Commission, which is clear from the act at issue without there being any need for the Federal Republic of Germany to adopt intermediate measures.

B – My assessment

138. Unlike the Commission, I believe that Deutsche Post is individually and directly concerned by the act at issue and that the action for annulment brought before the General Court is therefore admissible.

139. I base that analysis on the following considerations.

140. In the procedure for reviewing State aid, decisions adopted by the Commission are addressed only to the Member States concerned. ( ) Natural or legal persons wishing to bring an action against those decisions must therefore demonstrate that the decisions are of direct and individual concern to them, in accordance with the fourth paragraph of Article 230 EC.

1. Individual concern to Deutsche Post

141. It is settled case-law that 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 these factors distinguishes them individually just as in the case of the person addressed by such a decision. ( )

142. It is also clear from the Court’s case-law that where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of economic operators. ( )

143. In the present cases, it is obvious that Deutsche Post is distinguished individually by the act at issue. The procedure initiated by the Commission expressly concerns the measures implemented by the Federal Republic of Germany for that undertaking and the act at issue relates specifically to the costs and revenue of that undertaking over the last 20 years. Inasmuch as it requires Deutsche Post to provide information, that act therefore affects it in particular.

144. On the basis of those factors, I am of the opinion that Deutsche Post is therefore individually concerned by the act at issue.

2. Direct concern to Deutsche Post

145. In accordance with settled case‑law, the condition that the contested act must be of direct concern to a natural or legal person is twofold: (i) the act must affect directly the legal situation of the individual, by depriving him of a right or imposing an obligation on him and (ii) it must leave no discretion to its addressees, who are entrusted with the task of implementing it. That condition must therefore be purely automatic and must result from European Union rules without the application of other intermediate rules. ( )

146. In this case, it seems to me that those two conditions are met.

147. Firstly, I think that the act at issue entails, automatically, direct consequences for the legal situation of Deutsche Post. By requiring the Federal Republic of Germany to supply all the information relating to the undertaking’s costs and revenue since 1989, that act obliges Deutsche Post to send those data, of which it alone is in possession. The act at issue therefore places that undertaking in a similar situation to that of the Federal Republic of Germany. Thus, although the injunction is addressed to the Member State, the latter is, in reality, an intermediary between the Commission and the undertaking specifically named as the subject of the investigation. ( )

148. Secondly, I believe that the Federal Republic of Germany does not have any discretion in the implementation of the act at issue.

149. It is settled case-law that where a Community measure is addressed to a Member State by an institution, if the action to be taken by the Member State in order to implement that measure is automatic or if, in one way or another, the consequences of the measure are unequivocally imperative, that measure is of direct concern to any person affected by that action. ( )

150. Where the contested measure and the applicant are linked by a national implementing measure, the Court considers that this is not in itself a factor entailing the inadmissibility of the action, if the measure is purely automatic or if its meaning is predictable and may be inferred from European Union legislation. ( ) For example, the Court held that that was the situation in Commission v Infront WM. Despite the existence of a margin for manoeuvre in the implementation of the contested measure, the Court found, at paragraphs 59 to 63 of that judgment, that the national authorities did not have any power of assessment as to the result to be attained, since that was wholly determined by the measure in question. ( )

151. In the present cases, the Federal Republic of Germany does not have any margin for manoeuvre in the implementation of the act at issue. That act is in the nature of a decision and obliges that Member State to act along the lines specified by the Commission, that is to say, in other words, to provide all the information requested by the institution, whatever the means employed.

152. On the basis of those factors, I am therefore of the opinion that Deutsche Post is without doubt directly concerned by the act at issue.

153. On those grounds, I am of the view that the action for annulment brought by Deutsche Post is admissible and that the objection of inadmissibility raised by the Commission against that action must be dismissed.

154. I now invite the Court to refer the two cases back to the General Court for a ruling on the claims of Deutsche Post and the Federal Republic of Germany for the annulment of the act at issue.

VII – Conclusion

155. In the light of the foregoing considerations, I propose that the Court should:

– Set aside the orders of the General Court of the European Union of 14 July 2010 in Case T‑570/08 Deutsche Post v Commission and in Case T‑571/08 Germany v Commission;

– Dismiss as unfounded the objections of inadmissibility raised by the European Commission before the General Court of the European Union;

– Refer the cases back to the General Court of the European Union for a ruling on the claims of Deutsche Post AG and the Federal Republic of Germany for the annulment of the European Commission’s decision of 30 October 2008 requiring that Member State to provide information concerning the revenue and costs of Deutsche Post for the period from 1989 to 2007, and,

– Order that the costs be reserved.