Case C-94/01 P: Appeal brought on 26 February 2001 by La Poste against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France) and CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste
Date: 2001-05-05
Institutions: Court of Justice
Subjects: France, General Court (EU), State aid, action for annulment (EU), postal service, subsidiary

5.5.2001

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Official Journal of the European Communities

C 134/7

— order the United Kingdom to pay to the Commission of
the European Communities, into the account ‘EC own
resources’, a penalty payment of EUR 106 800 for each
day of delay in implementing the measures necessary to
comply with the judgment in Case C-56/90 from delivery
of the present judgment until the judgment in Case
C-56/90 has been complied with;

— order the United Kingdom to pay the costs.

Appeal brought on 26 February 2001 by La Poste against
the judgment delivered on 14 December 2000 by the
Fourth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX),
DHL International, Federal Express International (France)
and CRIE and the Commission of the European Communi-
ties, supported by the French Republic, Chronopost SA
and La Poste

Pleas in law and main arguments

In its judgment of 14 July 1993, in Case C-56/90 (ECR 1993
p. I-4109), the Court declared that, by failing to take all the
necessary measures to ensure that the quality of the bathing
to Southport
waters in Blackpool and of
conformed to the limit values set in accordance with Article 3
of Council Directive 76/160/EEC of 8 December 1975 con-
cerning the quality of bathing water, the United Kingdom had
failed to fulfil its obligations under the EEC Treaty.

those adjacent

Article 228(1) of the EC Treaty requires a Member State to
take the necessary measures to comply with a judgment by the
Court which finds that it has failed to fulfil an obligation under
the Treaty.

There cannot be any doubt that, in the present case, the United
Kingdom should long since have taken all the necessary
measures to ensure that the quality of the bathing waters in
Blackpool and of those adjacent to Southport conform to
the limit values set in accordance with Article 3 of the
aforementioned directive. Over six years had already passed
since the Court gave its judgment by the time the Commission
issued its reasoned opinion. At this time, six out of the nine
bathing waters in question still failed to comply with the
directive.

In accordance with Article 228(2) of the EC Treaty, the
Commission asks the Court to impose a penalty payment of
EUR 106 800 on the United Kingdom for each day’s delay in
implementing the Court’s judgment in Case C-56/90, begin-
ning from the day on which the Court gives its judgment in
the present case.

(1) of 8 December 1975 concerning the quality of bathing water (OJ

L 31, 5.2.1976, p. 1).

(Case C-94/01 P)

(2001/C 134/11)

An appeal against the judgment delivered on 14 December
2000 by the Fourth Chamber (Extended Composition) of the
Court of First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX), DHL,
International, Federal Express International (France) and CRIE
and the Commission of the European Communities, supported
by the French Republic, Chronopost SA and La Poste, was
brought before the Court of Justice of the European Communi-
ties on 26 February 2001 by La Poste, represented by
H. Lehman, Avocat, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
14 December 2000 in so far as it annuls Article 1 of
Commission Decision 98/365/EC of 1 October 1997
concerning alleged State aid granted by France to SFMI-
Chronopost (1) in so far as it finds that the logistical
and commercial assistance provided by La Poste to its
subsidiary SFMI-Chronopost does not constitute State aid
to SFMI-Chronopost;

— order Union Française de l’Express, DHL, International,
Federal Express International and CRIE to pay the costs
incurred by La Poste in the proceedings before both the
Court of First Instance and the Court of Justice.

Pleas in law and main arguments

— Contradictory and insufficient statement of reasons

The Court of First Instance purports to apply the private
investor test, but instead its method consists in appraising
the impact of the reserved service. In requiring account
to be taken of a private undertaking with no reserved
sector, the Court of First Instance draws a comparison
between public owners and private owners with no
reserved sector but does not treat the public owner and
the private owner in the same way. A private owner with
a reserved sector would never be required to take into

C 134/8

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Official Journal of the European Communities

5.5.2001

account the impact of the reserved sector when setting its
charges for services in the competitive sector. It would
merely be required to comply with Akzo (2), that is to say,
to cover at least its variable costs.

The judgment does not explain how reserved rights
affected costs; nor does it indicate how that should have
been determined.

— Infringement of Article 88 EC

The judgment disregards the broad discretion attributed
to the Commission in relation to complex appraisals of
an economic nature. However, it is clear from Article 88
EC that the Commission must enjoy a broad discretion,
not only in order to assess whether State aid is compatible
with the common market, but also to classify a measure
as State aid when the form of State intervention under
investigation is complex.

Galileo International, LLC, established in Rosemount, Illinois,
United States of America, represented by Mr Richard Plender
QC, instructed by Ms Katherine Holmes and Mr Daniel Austin,
solicitors, of Richards Butler, with an address for service in
Luxembourg.

The Appellants seek the following orders from the Court of
Justice:

1.

That the Contested Order be set aside.

2.

That the plea of admissibility raised by the Council
and supported by the Commission as interveners be
dismissed.

— Infringement of Article 87 EC

3.

That the Application be declared admissible.

The judgment errs in holding that all advantages con-
ferred by the State constitute aid; on the contrary, only
the transfer of financial resources may be so classified.

The judgment has distorted the notion of normal market
conditions.

4.

5.

(1) OJ L 164 of 9.6.1998, p. 37.
(2) Case C-62/86 (1991) ECR I-3359.

That the case be referred back to the CFI so that the CFI
may determine the Application on the merits.

That the Council do pay the costs of this appeal and the
costs of determining the Council’s plea of admissibility,
including the costs of responding to the Commission’s
Statement of Intervention.

Appeal brought on 27 February 2001 by Galileo Company
and Galileo International, LLC against the order dated
15 December 2000 of the Second Chamber of the Court
of First Instance of the European Communities in case
T-113/99 (1) between Galileo Company and Galileo Inter-
national, LLC, supported by Amadeus Global Travel
Distribution SA, and Council of the European Union,
supported by Commission of the European Communities

(Case C-96/01 P)

(2001/C 134/12)

An appeal against the order dated 15 December 2000 of the
Second Chamber of the Court of First Instance of the European
Communities in case T-113/99 between Galileo Company and
Galileo International, LLC, supported by Amadeus Global
Travel Distribution SA, and Council of the European Union,
supported by Commission of the European Communities,
was brought before the Court of Justice of the European
Communities on 27 February 2001 by Galileo Company,
established in Windsor, Berkshire, United Kingdom, and

Pleas in law and main arguments

a)

In finding that
the contested measure concerns the
applicants in their objective capacity as ‘system’ vendor,
in the same way as any other system vendor, the CFI
erred in law in the following material respects:

i)

By failing to take into account and apply the
consistent case law of the Court of Justice that an
individual trader, that forms part of a group of
traders that are fixed and identifiable when the
contested measure is made, may nevertheless be
individually concerned by that measure. Such a
trader may be individually concerned to the extent
that the measure applies to undertakings engaged in
the relevant trade at the time when it was adopted,
and the measure fails to make transitional arrange-
ments to protect them against substantial detriment.

ii)

By failing to appreciate that the fact that a measure
may be of legislative nature applying to a category
of traders in general does not prevent it in certain
circumstances from affecting some of the market
participants concerned individualy.