Case T-60/05: Action brought on 2 February 2005 by Union française de l'express (UFEX) and Others against the Commission of the European Communities
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Commission, France, action for annulment (EU), competition law, complaint to the Commission, dominant position, postal service, transport company

16.4.2005

EN

Official Journal of the European Union

C 93/39

In support of their action, the applicants also claim that there
has been a breach of the principle of good administration, of
the principle that an institution is to have regard for the
welfare of its officials, of the principle of transparency, of the
principle of legitimate expectations, of the principle of good
faith, of the principle of equal treatment and non-discrimina-
tion and of the principle of equivalence of post and grade.

(1) OJ L 124, p. 1.

Justice and the Court of First Instance cited above, namely
whether the defendant complied with its obligations in the
context of the examination of the complaint. The applicants
submit that, in rejecting the complaint on the ground of an
alleged lack of Community interest,
the contested decision
infringes the legal rules relating to assessment of Community
interest,
is vitiated by a contradiction in the grounds and
contains a number of errors of law, as regards the rejection of
that part of the complaint based on Articles 86 EC, 82 EC, 3(g)
EC and 10 EC.

Specifically, the applicants claim in particular that the Commis-
sion made errors in assessing the elements which necessarily
make up the definition of Community interest, since, in order
to give reasons for its finding that there is no Community
it must assess the seriousness and duration of the
interest,
infringements alleged in the complaint. Consequently, it is not
sufficient to establish whether anti-competitive effects still exist
and, in the absence of such effects, that there is no Community
interest in continuing the examination of the complaint.

that

As regards the duration of the infringement, the applicants
the Commission merely examined
criticise the fact
whether the incidental effects of the alleged infringements still
existed (development of market shares, competitors leaving the
market, price sensitivity of demand, absence of persistent
effects in terms of price, etc), without paying attention to the
main effect of a structural nature, namely having placed SFMI-
Chronopost in a position of market leader and having main-
tained it there.

As far as reasoning is concerned, it is pointed out that, in the
contested decision, the Commission asserts, on the one hand,
that it is perfectly able to check the level to which la Poste
covers costs, which in the light of both Article 82 EC and
Article 87 EC would be the only calculation making it possible
to ascertain the existence of cross-subsidies, and, on the other
hand, that the reason for not checking the level to which la
Poste covers costs in the light of Article 82 EC is that this
would have amounted to a duplication of the work which it is
required to undertake itself
the
complaint.

for the State aid part of

The applicants also contest the Commission's assertion that the
benefits granted to Chronopost in terms of customs clearance
and franking come within the scope of the action of the French
State in the field of its public authority and do not fall within
the scope of Article 82 EC in conjunction with Article 86 EC.

(1) Case C-119/97 P UFEX and Others v Commission [1999] ECR I-
1341, and Case T-77/95 REV UFEX and Others v Commission [2000]
ECR II-2167.

Action brought on 2 February 2005 by Union française de
l'express (UFEX) and Others against the Commission of
the European Communities

(Case T-60/05)

(2005/C 93/71)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 2 February 2005 by Union française
de l'express (UFEX), having its registered office at Roissy
Charles de Gaulle (France), DHL International SA, having its
registered office at Roissy Charles de Gaulle (France), Federal
Express International (France) SNC, having its registered office
at Gennevilliers (France), and CRIE, having its registered office
at Asnières (France), represented by Eric Morgan de Rivery and
Jacques Derenne, lawyers.

The applicants claim that the Court should:

— annul Commission decision SG-Greffe (2004) D/205294 of

19 November 2004;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present application seeks annulment of
the decision
rejecting the complaint lodged in December 1990 by UFEX,
then called SFEI, against la Poste as a result of cross-subsidies
allegedly amounting to an abuse of a dominant position to the
benefit of Société Française de Messagerie Internationale (SFMI).
That decision is the consequence of a request to reopen the
procedure before the Commission following annulment by the
Community Court of
the Commission's decision of 30
December 1994, which rejected the initial complaint. (1)

The main issue raised in the present case is still the same as
that which was the subject of the judgments of the Court of