Case T-282/16: Action brought on 30 May 2016 — Inpost Paczkomaty v Commission
Date: 2016-05-30
Institutions: General Court
Subjects: Poland, State aid, control of State aid, postal service, provision of services, public contract, restriction on competition, services of general interest, terms for aid, universal service








C_2016270EN.01005801.xml










25.7.2016   


EN


Official Journal of the European Union


C 270/58





Action brought on 30 May 2016 — Inpost Paczkomaty v Commission
(Case T-282/16)
(2016/C 270/65)
Language of the case: Polish

Parties


Applicant: Inpost Paczkomaty sp. z o.o. (Cracow, Poland) (represented by: T. Proć, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul European Commission Decision (EU) C(2015) 8236 of 26 November 2015 on State aid SA.38869 (2014/N), which Poland intends to grant to the Polish postal service as compensation for net costs arising in the years 2013-2015 in connection with the duty to provide universal services;










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order the defendant to pay the costs.





Pleas in law and main arguments

The applicant raises seven pleas in law.






1.


First plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 19 (Clause 2.6) of the [European Union] framework [for State aid in the form of public service compensation (2011)], infringement of the Treaty principles on public procurement and incorrect application of Article 7(2) of 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; ‘the Postal Services Directive’)






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The methods of financing the provision of universal services applied by the Member States must be consistent with the principles of non-discrimination, transparency and equal treatment (including the choice of the provider of universal postal services by way of competition) arising from the provisions of the TFEU on the internal market freedoms, and also with Article 106(2) TFEU, which was not the case in the present dispute.














2.


Second plea in law, alleging infringement of Article 106(2) of the Treaty and incorrect assessment as to meeting the requirements of headings 14 (Clause 2.2) and 60 (Clause 2.10) of the [European Union] framework [for State aid in the form of public service compensation (2011)]






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The European Commission proceeded on the incorrect assumption that the duty borne by the Polish postal service to provide public services is in fact consistent with the requirements laid down in the Postal Services Directive and that it is therefore not necessary, as proof of the exact assessment of public service needs, to carry out a public consultation or use some other appropriate means to take the interests of users and service providers into account.














3.


Third plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 52 (Clause 2.9) of the [European Union] framework [for State aid in the form of public service compensation (2011)] and infringement of Article 7(1), (3) and (5) of the Postal Services Directive






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The European Commission proceeded on the incorrect assumption that the compensation fund fulfils the requirement of non-discrimination in relation to the uniform maximum contribution in the amount of 2 % of the revenue of the provider of universal services or substitutable services; this percentage of the contribution to be paid by providers applies uniformly to all market operators, which is discriminatory since the situation of the provider of universal services and the situation of the provider of substitutable services are not the same.














4.


Fourth plea in law, alleging infringement of Article 7(1) of the Postal Services Directive, since the European Commission acknowledges that the costs of the universal service were financed through a multitude of exclusive and special rights which were granted to the Polish postal service






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Article 7(1) of the Postal Services Directive provides that the Member States may not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. At the same time, the Commission acknowledges that the Polish postal service was granted exclusive and special rights in connection with the universal services being provided by it.














5.


Fifth plea in law, alleging infringement of Article 102, in conjunction with Article 106(1), of the Treaty






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The disproportionately high contribution to the compensation fund leads to ‘anticompetitive foreclosure’ of the postal services market.














6.


Sixth plea in law, alleging infringement of Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union






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By the contested decision, a State aid scheme (programme) was confirmed which results in a disproportionate interference with the applicant’s right to property and a disproportionate restriction of its freedom to conduct a business.














7.


Seventh plea in law, alleging infringement of essential procedural requirements and failure to comply with the obligation to state reasons under Article 296 of the Treaty






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The Commission incorrectly determined the circumstances and frequently based its decision on incorrectly determined facts. In addition, the Commission thereby failed to state adequate reasons, since it did not — contrary to its own decision-making practice — take account, as regards the effect on competition, of the failure to launch a call for tenders as an incriminating factor.