Case C-148/09 P

Kingdom of Belgium

v

Deutsche Post AG

and

DHL International

(Appeal – Action for annulment – State aid – Article 88(3) EC – Regulation (EC) No 659/1999 – Commission decision not to raise objections – Concept of ‘doubts’ – Services of general economic interest)

Summary of the Judgment

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the common market without initiating the formal review procedure – Actions brought by interested parties for the purposes of Article 88(2) EC – Admissibility – Conditions

(Arts 88(2) EC and 230, fourth para, EC; Council Regulation No 659/1999, Art. 1(h), 4(3) and 6(1))

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the common market without initiating the formal review procedure – Actions brought by interested parties for the purposes of Article 88(2) EC – Identification of the subject‑matter of the action

(Art. 88(2) EC and 230, fourth para., EC; Council Regulation No 659/1999, Arts 1(h), 4(3) and 6(1))

3. State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of the aid with the common market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Concept of ‘doubts’ – Objective nature

(Art. 88(2) EC; Council Regulation No 659/1999, Arts 4(3), (4) and (5), and 6(1))

1. In the field of State aid, the lawfulness of a Commission decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC, depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the Union judicature the decision not to raise objections.

(see para. 54)

2. In the field of State aid, an applicant challenging the Commission’s decision not to initiate the formal investigation procedure may rely on any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified ought to have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, change the subject-matter of the action or the conditions for its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC.

It is not for the Union judicature to interpret an action brought by an applicant challenging exclusively the substance of a decision appraising the aid as such as one seeking, in fact, to safeguard the applicant’s procedural rights pursuant to Article 88(2) EC and Article 6(1) of Regulation No 659/1999, if the applicant has not expressly raised a plea to that effect. In such a case, the interpretation of the plea would lead to a reclassification of the subject‑matter of the action.

(see paras 55, 58)

3. It follows from Article 4(4) of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC, that if, following the preliminary examination, the Commission finds that the planned aid raises doubts as to its compatibility with the common market, it is required to adopt a decision initiating the formal investigation procedure under Article 88(2) EC and Article 6(1) of that regulation.

The concept of ‘doubts’ referred to in Article 4(4) of Regulation No 659/1999 being objective, their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied.

With regard to the length and circumstances of the preliminary examination procedure, while it is true that a period exceeding the two-month period provided for in Article 4(5) of Regulation No 659/1999 and the number of requests for information addressed to the Member State concerned do not of themselves support the conclusion that the Commission ought to have initiated the formal investigation procedure, those elements may none the less constitute evidence that the Commission may have had doubts regarding the compatibility of the aid at issue with the common market.

(see paras 77, 79, 81)

JUDGMENT OF THE COURT (First Chamber)

22 September 2011 ( )

(Appeal – Action for annulment – State aid – Article 88(3) EC – Regulation (EC) No 659/1999 – Commission decision not to raise objections – Concept of ‘doubts’ – Services of general economic interest)

In Case C‑148/09 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 24 April 2009,

Kingdom of Belgium, represented by C. Pochet and T. Materne, acting as Agents, and J. Meyers, advocaat,

appellant,

the other parties to the proceedings being:

Deutsche Post AG, established in Bonn (Germany), represented by T. Lübbig and J. Sedemund, Rechtsanwälte,

DHL International, established in Diegem (Belgium), represented by T. Lübbig and J. Sedemund, Rechtsanwälte,

applicants at first instance,

European Commission, represented by B. Martenczuk and D. Grespan, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, J.-J. Kasel, A. Borg Barthet, E. Levits (Rapporteur) and M. Safjan, Judges,

Advocate General: N. Jääskinen,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 7 September 2010,

after hearing the Opinion of the Advocate General at the sitting on 2 December 2010,

gives the following

Judgment

1 By its appeal, the Kingdom of Belgium, supported by the European Commission, seeks to have set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 10 February 2009 in Case T-388/03 Deutsche Post and DHL International v Commission [2009] ECR II-199 (‘the judgment under appeal’) annulling the Commission’s decision of 23 July 2003 not to raise objections, following the preliminary examination procedure provided for in Article 88(3) EC, to several measures taken by the Belgian authorities in favour of La Poste SA, the Belgian public postal undertaking (C(2003) 2508 final, ‘the contested decision’).

Legal context

2 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1) is intended, according to the second recital in its preamble, to codify and reinforce the consistent practice developed and established by the Commission for the application of Article 88 EC, in accordance with the case-law of the Court.

3 Article 1 of Regulation No 659/1999 provides:

‘For the purpose of this Regulation:

…

(h) “interested party” shall mean any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.’

4 Article 4 of that regulation, ‘Preliminary examination of the notification and decisions of the Commission’, provides in paragraphs 2 to 4:

‘2. Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision.

3. Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure, in so far as it falls within the scope of Article [87](1) of the Treaty, it shall decide that the measure is compatible with the common market (hereinafter referred to as a “decision not to raise objections”). The decision shall specify which exception under the Treaty has been applied.

4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pursuant to Article [88](2) of the Treaty (hereinafter referred to as a “decision to initiate the formal investigation procedure”).’

5 Under Article 6(1) of the regulation:

‘The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the common market. The decision shall call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which shall normally not exceed one month. In duly justified cases, the Commission may extend the prescribed period.’

Background to the dispute

6 La Poste SA (‘La Poste’) was converted to a share company governed by public law in 1992, but remains the operator of the universal postal service in Belgium and has to meet specific obligations in regard to services of general economic interest (‘SGEIs’). The detailed rules for compensating the additional net cost of SGEIs are determined in the management contract concluded with the Belgian State.

7 The express parcels sector accounts for 4% of the turnover of La Poste, which corresponds to an 18% market share in that sector. Deutsche Post AG (‘Deutsche Post’) and its Belgian subsidiary DHL International hold a 35% to 45% share of that market.

8 By letter of 3 December 2002, the Belgian authorities informed the Commission of a proposed increase in the capital of La Poste of EUR 297.5 million.

9 On 22 July 2003, the applicants asked the Commission for information on the status of the examination procedure in respect of the notified measure with a view to their possible participation in it.

10 On 23 July 2003, believing that the capital increase notified did not constitute State aid, the Commission adopted the contested decision following the preliminary examination procedure provided for in Article 88(3) EC.

Procedure before the Commission and the contested decision

11 After three meetings with the Belgian authorities as well as several exchanges of letters, the Commission found that the capital contribution notified by those authorities was compatible with the common market.

12 In order to reach that conclusion, the Commission started by examining six unnotified measures from which La Poste had benefited since its conversion into an autonomous public undertaking, being of the view that the lawfulness of the increase in capital notified depended on them.

13 The first measure consisted in an exemption from corporation tax. As La Poste had shown an aggregate net loss of EUR 238.4 million from 1992 to 2002, the Commission found that that exemption had not led to any transfer of State resources.

14 The second measure consisted in the transfer by the Belgian State of buildings necessary for the public service to La Poste in return for the cancellation of a provision for pensions of EUR 100 million created by La Poste. The Commission was of the view that La Poste had derived no advantage from that measure.

15 The third measure consisted in a State guarantee for loans taken out. Having found that La Poste had never had recourse to that guarantee, the Commission was of the view that it did not amount to State aid.

16 The fourth measure consisted in an exemption from property tax on buildings used for providing public services. The Commission found that such a measure was liable to constitute State aid.

17 The fifth measure consisted in an overcompensation in respect of financial services of general interest for the period 1992-1997. The Commission found that such a measure was liable to constitute State aid.

18 The sixth measure consisted in two increases in capital in March and December 1997 totalling EUR 62 million which were intended to make good inadequate compensation for SGEIs. The Commission found that such a measure was liable to constitute State aid.

19 With regard to the fourth, fifth and sixth unnotified measures and the notified measure, the Commission found that, even if those measures contained elements of State aid, they were compatible with the common market under Article 86(2) EC, as they did not involve an overcompensation of the net additional costs of SGEIs.

20 Finally, the Commission stated that the notified measure consisting in an increase in capital of EUR 297.5 million was of a lower amount than the historical undercompensation of the net additional costs of SGEI activities, so that it did not constitute State aid within the meaning of Article 87(1) EC.

Procedure before the General Court and the judgment under appeal

21 The applicants brought an action for annulment of the contested decision, putting forward seven pleas in law in support of the action. The Commission raised an objection of inadmissibility based on the applicants’ lack of standing to bring proceedings and their lack of legal interest in bringing proceedings.

22 By order of the General Court of 15 December 2004, the application for a ruling on admissibility was reserved for the final judgment.

23 In regard to admissibility, the General Court conducted a review first of the applicants’ standing to bring proceedings and then of their interest in doing so.

24 In the first place, it stated that, according to settled case-law, the persons intended to benefit from the procedural guarantees provided for in Article 88(2) EC may secure compliance therewith only if they are able to challenge before the European Union judicature the Commission decision taken on the basis of paragraph 3 of that article to declare aid compatible with the common market without initiating the formal investigation procedure.

25 In paragraph 43 of the judgment under appeal, the General Court stated that the persons intended to benefit from those guarantees are parties concerned within the meaning of Article 88(2) EC, namely, in particular, undertakings competing with the beneficiaries of the contested aid.

26 Noting that standing to bring legal proceedings can only be recognised in that context where the parties concerned seek in bringing their action to safeguard their procedural guarantees and not when they challenge the substance of a decision adopted on the basis of Article 88(3) EC, the General Court proceeded to analyse the pleas put forward by the applicants and found that those pleas were of two types.

27 As regards the pleas challenging the substance of the contested decision, the General Court took the view, in paragraph 49 of the judgment under appeal, that the applicants had failed to show that the aid which was the subject of the contested decision substantially affected their competitive position on the market. Therefore, it ruled that the applicants did not have standing to challenge the substance of the contested decision.

28 As regards the pleas seeking to safeguard their procedural guarantees, it ruled, in paragraph 52 of the judgment under appeal, that the applicants, as direct competitors of La Poste, had the status of concerned parties within the meaning of Article 88(2) EC. In that regard, first, the General Court noted in paragraph 55 of that judgment that the second plea expressly alleged infringement of the applicants’ procedural rights. Secondly, it found in paragraph 56 of that judgment that the third, fourth, fifth and seventh pleas provided arguments in support of the second plea. Therefore, it held that the applicants had standing to bring proceedings, and that the second plea and the arguments brought in support of that plea were admissible.

29 In the second place, the General Court ruled in paragraph 62 of the judgment under appeal that the applicants, in their capacity as concerned parties within the meaning of Article 88(2) EC, had a legal interest in securing the annulment of the contested decision, in so far as such an annulment would require the Commission to initiate the formal investigation procedure.

30 The General Court therefore rejected the plea of inadmissibility submitted by the Commission.

31 On the substance, after noting that the concept of serious difficulties, in the presence of which the Commission must, on examination of an aid measure, initiate the formal procedure, was objective in nature, the General Court identified, in paragraphs 96 to 107 of the judgment under appeal, the evidence suggesting the presence of such serious difficulties on examination of an aid measure, namely the duration and circumstances of the examination, the inadequate and incomplete nature of the examination and the content of the contested decision.

32 First, the General Court found that seven months had elapsed between the notification of the notified aid and the adoption of the contested decision, a much longer period than the two-month period envisaged for preliminary examinations under Article 4(5) of Regulation No 659/1999.

33 Next, the procedure was punctuated by three meetings between the Belgian authorities and the Commission and various requests for information, in which the Commission highlighted the complexity of the case and the wide scope of the investigation which it was obliged to cover, given that it made the compatibility of the notified measure dependant on that of the six measures which were not notified.

34 Finally, the Court pointed out, in paragraph 103 of the judgment under appeal, that the Commission hesitated as to the choice of legal basis for the adoption of the contested decision, between an approach based on Article 87 EC and an approach based on Article 86(2) EC.

35 The General Court concluded, in paragraph 106 of the judgment under appeal, that the procedure conducted by the Commission considerably exceeded what is normally required for an initial examination pursuant to Article 88(3) EC.

36 Secondly, the General Court verified whether matters concerning the content of the contested decision might also constitute evidence that the Commission had experienced serious difficulties in the examination of the measures at issue.

37 In that context, the General Court found that the examination by the Commission of the second unnotified measure in favour of La Poste, namely the cancellation of the provision of pensions, had been inadequate, on the ground that the Commission had not had at its disposal the evidence needed in order to assess the advantage procured by the free provision of buildings by the Belgian State.

38 After noting that, in accordance with paragraph 93 of Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, delivered after the adoption of the contested decision, the Commission must examine whether the SGEI costs offset by the State are equivalent to or lower than those of an average well-managed company (‘benchmarking’ criterion), the General Court found that there had been no such determination in the present case. It therefore concluded that the examination of the notified measure was incomplete.

39 Consequently, the General Court annulled the contested decision.

Procedure before the Court

40 By its appeal, the Kingdom of Belgium, supported by the Commission, submits that the Court should:

– set aside the judgment under appeal; and

– order Deutsche Post and DHL International to pay the costs.

41 Deutsche Post and DHL International claim that the Court should:

– dismiss the appeal; and

– order the Kingdom of Belgium and the Commission to pay the costs.

The appeal

42 The Kingdom of Belgium puts forward three grounds of appeal, alleging, first, an incorrect classification of the circumstances of the case, secondly, that the General Court erred in law and thirdly, infringement of the principle of legal certainty. The Commission, which supports the form of order sought by the Kingdom of Belgium, raises, in addition, a self-standing ground of appeal, namely that the General Court infringed Article 230(4) EC.

43 First of all it is necessary to examine the pleas whereby the Kingdom of Belgium and the Commission challenge the General Court’s assessment of the admissibility of the action at first instance as well as that of certain pleas that it upheld.

The second ground of appeal and the Commission’s self-standing ground of appeal

Arguments of the parties

44 The Kingdom of Belgium argues that the General Court erred in law by declaring the fourth and seventh pleas in law admissible, even though by those pleas the applicants called into question the substance of the contested decision.

45 According to the Commission, the General Court infringed Article 230(4) EC, by ruling the applicants’ action admissible on the ground that they relied on the safeguarding of their procedural guarantees under Article 88(2) EC. In fact, no such claim appears in any of the applicants’ pleas in law, so that on that basis the Court should set aside the judgment under appeal of its own motion.

46 Furthermore, in doing so, the General Court prejudged the issue of the lawfulness of the contested aid.

47 Deutsche Post and DHL International, submit, at the outset, that the Commission’s self-standing ground of appeal is inadmissible.

48 As to the substance, they maintain that the General Court merely took into account all relevant elements in order to assess the possible presence of serious difficulties. In addition, the Commission is mistaken in considering that the plea concerning the safeguarding of procedural rights was not raised at first instance. They list, in that connection, the various passages in their application that refer to that issue.

Findings of the Court

– Admissibility of the Commission’s self-standing ground of appeal

49 As a preliminary point, it is necessary to examine the admissibility before the Court of the Commission’s self-standing ground of appeal alleging that the General Court infringed Article 230(4) EC.

50 In that regard, it should be recalled that, under the second paragraph of Article 56 of the Statute of the Court of Justice, an appeal may be brought before the Court by any party which has been unsuccessful, in whole or in part, in its submissions before the General Court. As it was the defendant before the General Court, the Commission may, by virtue of Article 115(1) of the Rules of Procedure of the Court, lodge a response within a period of two months of service of the notice of appeal, in accordance with the requirements of Articles 115(2) and 116 of the Rules of Procedure.

51 It follows that the Commission’s self-standing ground of appeal is admissible.

– Substance

52 As to the substance, the Commission alleges infringement of Article 230(4) EC, in so far as, by artificially constructing a plea alleging infringement of procedural rights from the arguments in the application, the General Court reclassified the action at first instance, which was directed against the substance of the contested decision. The Kingdom of Belgium also maintains that by their fourth and seventh pleas the applicants contested only the substance of that decision, so that the General Court wrongly held those pleas to be admissible.

53 As regards in the first place the plea alleging breach of the conditions laid down in Article 230(4) EC, it should be made clear at the outset that Article 4 of Regulation No 659/1999 provides for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether the aid notified is compatible with the common market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the common market; on the other hand, it is also possible that the measure may raise such doubts (Case C-83/09 P Commission v Kronoply and Kronotex [2011] ECR I-0000, paragraph 43).

54 In the present case, the contested decision is a decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999, the lawfulness of which depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of Regulation No 659/1999 can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the European Union judicature the decision not to raise objections (see, to that effect, Commission v Kronoply and Krontex, paragraph 47 and the case-law cited).

55 By seeking the annulment of a contested decision not to raise objections, an applicant essentially alleges that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby acting in breach of the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may rely on any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, change the subject-matter of the action or the conditions for its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999 (see Commission v Kronoply and Kronotex, paragraph 59).

56 It is in the light of those principles that the General Court’s assessment of the admissibility of the pleas in the action for annulment must be examined.

57 In the present case, the General Court found, in paragraph 45 of the judgment under appeal, that the second plea of the application at first instance alleged failure to comply with the provisions of Article 88(3) EC, the Commission having decided not to initiate the procedure provided for in Article 88(2) EC, even though it must have experienced serious difficulties in its assessment of the compatibility of the contested measures with the common market.

58 The General Court thus rightly found, in paragraph 54 of the judgment under appeal, that it is not for the European Union judicature to interpret an action brought by an applicant to challenge exclusively the substance of a decision appraising the aid as such as one seeking, in fact, to safeguard the applicant’s procedural rights pursuant to Article 88(2) EC and Article 6(1) of Regulation No 659/1999, if the applicant has not expressly raised a plea to that effect. In such a case, the interpretation of the plea would lead to a reclassification of the subject‑matter of the action (see, to that effect, Case C-176/06 P Stadtwerke Schwäbisch Hall and Others v Commission [2007] ECR I-170, paragraph 25, and Commission v Kronoply and Kronotex, paragraph 55).

59 In those circumstances, the General Court concluded, in paragraph 55 of the judgment under appeal, that the applicants expressly claimed, by their second plea, that their procedural rights under Article 88(2) EC had been infringed when the contested decision was adopted.

60 In so doing, the General Court did not err in law.

61 First, it is not contested that the purpose of the action by the applicants at first instance was in fact to achieve the annulment of a Commission decision not to initiate the formal investigation procedure provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999.

62 Secondly, while the application at first instance does not contain a particularly clear statement of the applicants’ pleas, and, specifically of a plea which is distinctly identifiable as seeking to safeguard the procedural rights that they derive from Article 88(2) EC and Article 6(1) of Regulation No 659/1999, it is none the less the case that, according to the actual wording of the application, the applicants submit that the failure to initiate the formal investigation procedure prevented them from benefiting from the procedural guarantees that they are entitled to by virtue of those provisions, and also present arguments intended to show that the Commission should have implemented the procedure referred to therein.

63 In those circumstances, the General Court was entitled to hold that the application contained a plea whereby the applicants sought to defend their procedural rights resulting from Article 88(2) EC and Article 6(1) of Regulation No 659/1999, without infringing Article 230(4) EC.

64 In the second place, the General Court is not to be criticised for having taken into account, under the second plea, the parts of the application at first instance in which the applicants seek to show that the Commission should have had doubts as to the compatibility of the contested measures with the common market.

65 In that regard, the General Court stressed, in paragraph 45 of the judgment under appeal that, in the fourth and seventh pleas, the applicants submitted that the Commission’s examination of the contested measures was inadequate and incomplete. Accordingly, after ruling, in paragraph 52 of the judgment under appeal, that the applicants, in their capacity as direct competitors of La Poste on the express parcel delivery market, had standing to bring proceedings only as concerned parties within the meaning of Article 88(2) EC and Article 1(h) of Regulation No 659/1999, the General Court was right to hold, in paragraph 69 of the judgment under appeal, that it was able to examine inter alia the fourth and seventh pleas of the application, but only in so far as they sought to establish that the Commission should have initiated the formal investigation procedure.

66 In those circumstances, the General Court also cannot be criticised for declaring admissible the pleas whereby the applicants alleged that the Commission had erred in taking the view that the measures examined did not constitute State aid. On the contrary, the Court expressly declared those pleas inadmissible in paragraph 67 of the judgment under appeal.

67 Accordingly, the Kingdom of Belgium’s second ground of appeal and the Commission’s self-standing ground of appeal must be dismissed as unfounded.

The first and third grounds of appeal

Arguments of the parties

68 The Kingdom of Belgium submits, by its first ground of appeal, that the General Court incorrectly classified the circumstances of the case.

69 It submits that, in the present case, with regard to the circumstances in which the examination procedure was conducted, the two-month reference period taken into consideration by the General Court is only indicative, so that exceeding it cannot automatically mean that the Commission has met with serious difficulties. The Commission adds that, in the specific circumstances of the case, the length of the preliminary examination procedure was not excessive.

70 Moreover, according to the Kingdom of Belgium, the General Court failed to identify a link between the wide scope of investigation involved in the examination of the contested measures and its apparent complexity and the presence of serious difficulties. According to the Commission, factual difficulties do not necessary entail serious difficulties.

71 Finally, the Kingdom of Belgium stresses that the hesitation about the legal basis demonstrates the number of choices available to the Commission for closing the file rather than serious difficulties. In fact, the Commission submits that, whatever the legal basis, the final decision would have been the same.

72 With regard to the content of the contested decision, the Kingdom of Belgium considers that, in its analysis of the adequacy of the examination of the contested measures, the General Court comes to a different result on the substance than that reached by the Commission. However, such a difference does not support the conclusion that there were serious difficulties. In any event, such a circumstance cannot lead to the conclusion that the Commission’s examination was incomplete.

73 Furthermore, the Kingdom of Belgium and the Commission claim, by their third ground of appeal, that the General Court infringed the principle of legal certainty by retroactively applying the fourth criterion of the Altmark Trans and Regierungspräsidium Magdeburg judgment.

74 In that regard, the Commission adds, moreover, that consideration of the ‘benchmarking’ criterion based on Altmark Trans and Regierungspräsidium Magdeburg is not relevant in the context of reviewing the safeguarding of the procedural guarantees provided for in Article 88(2) EC.

75 In general, Deutsche Post and DHL International consider that the examination procedures used by the Commission in the context of the privatisation of State postal undertakings are traditionally conducted by the Commission under the formal investigation procedure. Such operations are characterised by a complex factual context necessarily implying serious difficulties.

76 In particular, the applicants point out, first of all, that during the examination procedure the Commission itself highlighted the complexity of the file submitted to it. Next, the Kingdom of Belgium has failed to deal with the findings of the General Court according to which the Commission did not have available to it all the factual information necessary to examine the assignment of real property and the cancellation of the pension provision. Finally, the applicants point out that ‘benchmarking’ SGEI costs under the fourth criterion laid down in Altmark Trans and Regierungspräsidium Magdeburg met expectations at the time, particularly those of the Commission itself.

Findings of the Court

77 At the outset, it should be recalled that it follows from Article 4(4) of Regulation No 659/1999 that if, following the preliminary examination, it finds that the contested measure raises doubts as to its compatibility with the common market, the Commission is required to adopt a decision initiating the formal investigation procedure under Article 88(2) EC and Article 6(1) of that regulation (see Commission v Kronoply and Kronotex, paragraph 46).

78 In the present case, the contested decision is a decision not to raise objections adopted under Article 4(3) of Regulation No 659/1999, the lawfulness of which depends on whether there are doubts as to the compatibility of the aid with the common market.

79 The concept of ‘doubts’ referred to in Article 4(4) of Regulation No 659/1999 is an objective one and their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied (see, to that effect, Case C-431/07 Bouygues and Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 63).

80 In the present case, the General Court first examined the length and circumstances of the preliminary examination procedure, in paragraphs 96 to 107 of the judgment under appeal. Next, in the context of the examination of matters concerning the content of the contested decision, the Court held, in paragraphs 108 to 110 of that judgment, that the examination of the cancellation of the provision for pensions was inadequate and, in paragraphs 111 to 117 of that judgment, that the examination of the costs of providing SGEIs was incomplete. Finally, it concluded, in paragraph 118 of the judgment under appeal, that all those elements constituted a body of objective and consistent evidence which showed that the Commission should have initiated the formal investigation procedure.

81 With regard to, first, the length and circumstances of the preliminary examination procedure, while it is true that a period exceeding the two-month period provided for in Article 4(5) of Regulation No 659/1999 and the number of requests for information addressed to the Belgian authorities do not of themselves support the conclusion that the Commission should have initiated the formal investigation procedure, those elements may none the less, as stressed by the General Court in paragraph 106 of the judgment under appeal, constitute evidence that the Commission may have had doubts regarding the compatibility of the aid at issue with the common market.

82 In that respect it should in particular be noted that the Commission had to carry out, to declare the notified measure compatible with the common market, an examination of the compatibility of the six unnotified measures adopted between 1992 and 1997.

83 With regard to, secondly, the content of the contested decision, the General Court pointed out in particular that it revealed an inadequate examination of the contested measures.

84 Accordingly, the General Court held, in paragraph 109 of the judgment under appeal, that the Commission adopted the contested decision without having at its disposal evidence which could have enabled it to assess the advantage secured by making the properties available gratuitously in return for the cancellation of the pension reserve.

85 In that regard, it follows from the contested decision that, to cover the pension rights of its salaried officials, in 1992 La Poste made a provision of EUR 100 million at the time of its conversion into an autonomous public undertaking which was cancelled in 1997. The consideration for that provision was the transfer of buildings necessary to the public service.

86 In those circumstances, the General Court was justified in concluding that the Commission should have asked for clarification from the Belgian authorities, in particular concerning the value of the buildings that the Belgian State made available gratuitously for La Poste.

87 The General Court is not to be criticised for finding that such a circumstance could constitute evidence that the Commission should have had doubts regarding the compatibility of the contested measure with the common market. In fact, it cannot be ruled out that, depending on the value of the buildings made available to it, La Poste derived a substantial economic advantage from that transaction constituting State aid. To be sure that the opposite was true, the Commission should have, at the very least, had at its disposal assessments of the financial advantage that that provision represents for La Poste.

88 As regards the third ground of appeal alleging infringement of the principle of legal certainty, it should be pointed out, as follows from paragraphs 81 and 87 above, that the General Court’s analysis of the circumstances of the adoption and the content of the contested decision highlighted the doubts that the Commission should have had as to the compatibility of the notified measure with the common market, doubts which were adequate to support the conclusion that it should have initiated the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999.

89 In those circumstances, there is no need to examine that ground of appeal.

90 Accordingly, the first ground of appeal must be rejected as unfounded and the third ground of appeal must be rejected as ineffective.

91 It follows that the appeal must be dismissed in its entirety.

Costs

92 Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 118, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Kingdom of Belgium and the Commission have been unsuccessful, they must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1. Dismisses the appeal;

2. Orders the Kingdom of Belgium and the European Commission to pay the costs.

[Signatures]