Case T-493/04: Action brought on 22 December 2004 by Deutsche Post AG against the Commission of the European Communities
Date: 2005-02-05
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), dominant position, national law, postal charges, postal service, provision of services, quality standard

5.2.2005

EN

Official Journal of the European Union

C 31/29

Action brought on 21 December 2004 by the Federal
Republic of Germany against the Commission of the Euro-
pean Communities

(Case T-490/04)

(2005/C 31/54)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 21 December 2004 by the Federal
represented by W.-D. Plessing and
Republic of Germany,
T. Lübbig, Rechtsanwalt, acting as Agents.

The applicant claims that the Court should:

— annul Commission Decision K(2004)4001/3 of 20 October
2004 on the German legislation governing the area of mail
pre-sorting services,
in particular access for self-delivery
intermediaries and mail consolidators to the public postal
net work and the associated special rates (BdKEP – restric-
tions in the area of mail pre-sorting);

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

Pleas in law and main arguments:

According to the contested decision, Paragraph 51(1), second
sentence, point 5 of the Postgesetz (German Postal Law), under
which Deutsche Post AG is granted for a transitional period a
privileged legal position (the so-called exclusive licence) for its
mail delivery activities, breaches Article 86(1) EC, in conjunc-
tion with Article 82 EC, in so far as that provision prevents
commercial mail pre-sorting firms, irrespective of whether they
are acting as self-delivery intermediaries for a single sender or
as mail consolidators for several customers,
from securing
volume-dependent part-performance discounts for the delivery
of mail to Deutsche Post AG sorting centres.

In this action brought under the second paragraph of Article
230 EC, the Federal Republic of Germany submits that the
contested decision breaches both Article 82 EC and Directive
97/67/EC on postal services (1) for the following reasons:

— the Commission incorrectly assumes

the German
provision extends the dominant market position of
the
universal service provider Deutsche Post AG within the
reserved sector to the upstream market in mail pre-sorting,
to the detriment of mail pre-sorting firms;

that

— the contested decision amounts to a premature intrusion
into the area covered by the exclusive licence of Deutsche
Post AG, which could lawfully be reserved under Article
7(1) of the Directive on postal services.

The Federal Republic of Germany submits further that the
contested decision is not adequately reasoned, contrary to
Article 253 EC.

(1) Directive 97/67/EC of the European Parliament and of the Council
of 15 December 1997 on common rules for the development of the
internal market of Community postal services and the improvement
of quality of service (OJ 1998 L 15, p. 14).

Action brought on 22 December 2004 by Deutsche Post
AG against the Commission of the European Communities

(Case T-493/04)

(2005/C 31/55)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 22 December 2004 by Deutsche
Post AG, Bonn (Germany), represented by J. Sedemund, lawyer.

The applicant claims that the Court should:

1. annul

the Commission's Decision of 20 October 2004
(K(2004)4001/3) on the German legal framework governing
the provision of postal services,
in particular access by
private postal service providers and consolidators to the
public postal network and the special
tariffs connected
therewith (BdKEP – Beschränkungen im Bereich der Postvor-
bereitung (restrictions on postal services);

2. Order the Commission to pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments of Deutsche Post AG in
the proceedings brought under Article 230(4) EC correspond,
with regard to Article 82 EC and the Postal Service Directive
97/67/EC (1), to those of Case T-490/04.

— the differing treatment of

self-delivery by senders as
compared with that of commercial postal service providers
does not constitute discrimination within the terms of
82 EC or the fifth indent of Article 12 of the Directive on
postal services; and

(1) Directive 97/67/EC of the European Parliament and of the Council
of 15 December 1997 on common rules for the development of the
internal market of Community postal services and the improvement
of quality of service (OJ L 15, 21.1.1998, p. 14).