Case T-388/03: Action brought on 27 November 2003 by Deutsche Post AG and DHL International N.V. /S.A. against the Commission of the European Communities
Date: 2004-02-07
Institutions: Court of First Instance
Subjects: Belgium, European Commission, State aid, action for annulment (EU), corporation tax, postal service, tax exemption

C 35/14

EN

Official Journal of the European Union

7.2.2004

Action brought on 27 November 2003 by Deutsche
Post AG and DHL International N.V. /S.A. against the
Commission of the European Communities

(Case T-388/03)

(2004/C 35/22)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 November 2003 by Deutsche
Post AG, Bonn (Germany), and DHL International N.V./S.A.,
Diegem (Belgium), represented by J. Sedemund and T. Lübbig,
lawyers.

The applicants claim that the Court should:

— annul

the decision of

the European Commission of

23 July 2003 (Aid No N 763/02) and

— order the defendant to pay the costs.

Pleas in law and main arguments

The action is directed against the decision of the European
Commission, adopted in a procedure pursuant to Article 88(3)
EC, not to raise any objection to the compatibility of a capital
injection of EUR 297,5 million into the Belgian postal
company La Poste,
to the exemption of La Poste from
corporation tax and from property tax on real-estate trans-
actions effected by it in connection with the public supply
mandate, to La Poste’s ability to obtain State guarantees for
loans taken out by it, to the cancellation of provision made for
pensions, to the overcompensation from which La Poste
benefited in respect of its public service tasks and to two
capital injections amounting to EUR 62 million in total which
were not notified to the Commission.

The applicants submit that the contested decision is incompat-
ible with Article 87(1) EC and Article 253 EC.

The Commission did not treat the exemption of La Poste from
corporation tax as State aid only because, from 1992 to 2002,
La Poste made net losses and thus would not have been
required to pay corporation tax even if no tax exemption had
been granted. The Commission thus failed to take account of
the fact that, as an abstract rule, the tax exemption automati-
cally grants La Poste a financial advantage over other undertak-
ings at least where it makes taxable profits, thereby enabling
the declaration requirement to be avoided.

The Commission failed, in its decision, to take account of the
fact that, despite the cancellation of a provision created to
cover its obligations to pay pensions to persons employed as
postal workers from 1972 to 1992, La Poste continues to
be permitted to retain, without consideration, the business
premises initially transferred to it by way of compensation for
creation of the provision.

the
The Commission was wrong to take the view that
possibility, laid down in statute, of obtaining State guarantees
for certain loans does not constitute aid granted to La Poste
provided that it has made no use of that facility.

The contested decision is unlawful because, when offsetting
the financial advantages granted to La Poste against the net
additional costs of the universal postal service, the Commission
failed to take account of the abovementioned measures.

The Commission offset the net additional costs of performing
the corresponding
services in the public interest against
compensation as a whole, without examining whether the
compensation was actually paid in respect of the period in
which the net additional costs in question were incurred.

Action brought on 4 December 2003 by Regione Siciliana
against the Commission of the European Communities

(Case T-392/03)

(2004/C 35/23)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities by Regione Siciliana, represented by
Giacomo Aiello, Avvocato dello Stato.

The applicant claims that the Court should:

— annul Order BUDG/C5/ME/jlsD(2003)358046 of 6 Octo-
ber 2003 of the Commission of the European Communi-
ties on the detailed rules for the recovery of the contri-
bution of the European Regional Development Fund
(ERDF), ERDF ‘Gibbesi Dam’ cancelled by Commission
Decision C(2002)4905 of 11 December 2002, and in
consequence order the Commission of the European
Communities to pay the costs.