CELEX: C2001/150/19
Language: en
Date: 2001-05-19 00:00:00
Title: Case C-87/01 P: Appeal brought on 21 February 2001 by the Commission of the European Communities against the judgment delivered on 14 December 2000 by the Fourth Chamber of the Court of First Instance of the European Communitics in Case T-105/99 between the Council of European Municipalities and Regions (CEMR) and the Commission of the European Communities

C 150/10                  EN                   Official Journal of the European Communities                                        19.5.2001
Pleas and main arguments                                                  —    Infringement of Article 88 EC
                                                                               In criticising the Commission for not considering whether
                                                                               La Poste was in receipt of aid from the French State, the
—     Infringement of Article 87 EC                                            Court of First Instance encourages the Commission to act
                                                                               in breach of the procedure set out in Article 88(2) and in
                                                                               disregard of the French Government’s right to a fair
                                                                               hearing.
      Contrary to the position maintained by the Court of First
      Instance, the existence of aid for the purposes of                       The Court of First Instance also rebukes the Commission
      Article 87 presupposes not only that an advantage be                     for failing to determine whether or not La Poste charged
      conferred on an undertaking but also that that advantage                 its subsidiary not only its total costs but also the difference
      be financed directly or indirectly through State resources.              between those and the costs which would have been
                                                                               borne by La Poste if it had been a private operator with
                                                                               no reserved market. In so doing, the Court of First
                                                                               Instance confuses procedures, out of a desire to ensure
      In holding that the Commission was under a duty to                       that the entry on to a competitive market of a subsidiary
      consider whether La Poste’s reserved rights in the ordinary              of a public undertaking is made in ‘normal’ conditions.
      mail sector enabled it to save so much on costs that its
      charges for its services did not have to be based on
      ‘normal market conditions’, the Court of First Instance is
      requiring the Commission to search for the causes of
      postulated aid, whereas the Court has consistently held
      that aid is not identified by its causes or the reasons for
      State intervention, but by its effects.
                                                                          Appeal brought on 21 February 2001 by the Commission
      Taking the criterion of the behaviour of a private investor         of the European Communities against the judgment deliv-
      or operator, the Court of First Instance applies it, not to         ered on 14 December 2000 by the Fourth Chamber of the
      the market in which the subsidiary conducts its business            Court of First Instance of the European Communitics
      and in which the services provided by the parent company            in Case T-105/99 between the Council of European
      were used, but to the quite separate market in which the            Municipalities and Regions (CEMR) and the Commission
      parent company itself operates. Then it distorts once                                of the European Communities
      again the rule set out in Article 87 EC by disregarding the
      ‘real life’ situation of public operators and contemplating
      instead the situation of private operators as it ideally                                     (Case C-87/01 P)
      should be, that is to say, it constructs a picture of an ideal
      market on which an ideal form of competition is at play.
      That approach, indirectly but inexorably, calls in question                                  (2001/C 150/19)
      the policies and measures adopted in recent years in
      connection with the opening up of sectors previously not
      exposed to competition. Ultimately, it would mean that,             An appeal against the judgment delivered on 14 December
      even through the creation of subsidiaries and with                  2000 by the Fourth Chamber of the Court of First Instance of
      due respect for the principle of transparency, public               the European Communities in Case T-105/99 between the
      undertakings would no longer be able to compete on                  Council of European Municipalities and Regions (CEMR) and
      those new markets. Also, to accept as a premiss that, in            the Commission of the European Communities was brought
      the case of the public service managed by La Poste, La              before the Court of Justice of the European Communities on
      Poste’s reserved rights constitute ‘State aid’ which enables        21 February 2001 by the Commission of the European
      it to cut operating costs and which can be passed on to             Communities, represented by P. Oliver and H.M.H. Speyart,
      its subsidiary in the form of undercharging for services,           acting as Agents, with an address for service in Luxembourg.
      implies a premature finding that La Poste receives State
      aid for discharging its public service responsibilities and
      that this must be removed so that the benefit cannot be             The appellant claims that the Court should:
      passed on to its subsidiary. That is tantamount to calling
      in question, contrary to Article 16 EC, the subsidising of
                                                                          —    set aside the judgment delivered by the Court of First
      public services; although, in any event, Article 87 EC
                                                                               Instance on 14 December 2000 in Case T-105/99 and
      should not be applied to such funding, by virtue of
                                                                               draw all the legal consequences of the setting aside of
      Article 86(2) EC. Lastly, the approach adopted by the
                                                                               that judgment;
      Court of First Instance appears at odds with the provisions
      of Article 86(1) and 82 EC which endorse a costs-based
      approach in relation to the fixing of rates for access to           —    order the applicant at first instance to pay the costs of the
      the network.                                                             present appeal.
 ---pagebreak--- 19.5.2001              EN                      Official Journal of the European Communities                                       C 150/11
Pleas in law and main arguments                                           Appeal brought on 26 February 2001 by the French
                                                                          Republic against the judgment delivered on 14 December
—     Breach of the principle of Community law relating to the            2000 by the Fourth Chamber (Extended Composition) of
      concept of set-off between claims: the distinction drawn            the Court of First Instance of the European Communities
      by the Court of First Instance between ‘actual payment’             in Case T-613/97 between Union Française de l’Express
      and payment by means of set-off does not exist in law,              (UFEX), DHL International, Federal Express International
      since those two methods of payment have the same legal              (France), CRIE and the Commission of the European
      and accounting consequences.                                        Communities, supported by the French Republic, Chrono-
                                                                                                post SA and La Poste
—     Breach of the principle of the effectiveness of Community
      law: the Court of First Instance was wrong in concentrat-
      ing on the proper carrying out of the activities relating to
      the payments made by means of set-off without dwelling                                       (Case C-93/01 P)
      on the need to protect the Communities’ financial
      interests. The Court of First Instance did not explain,
      moreover, why set-off is more damaging, in respect of                                        (2001/C 150/21)
      the carrying out of the activities at issue, than enforced
      recovery. By stating that the non-payment of the sums
      intended for the activities at issue jeopardised the carrying       An appeal against the judgment delivered on 14 December
      out of those activities, the Court of First Instance distorted      2000 by the Fourth Chamber (Extended Composition) of the
      the facts or failed, at least, to state the reasons for its         Court of First Instance of the European Communities in Case
      observations whereas, indeed, it stated that the CEMR               T-613/97 between Union Française de l’Express (UFEX), DHL
      was not insolvent.                                                  International, Federal Express International (France), CRIE and
                                                                          the Commission of the European Communities, supported by
—     Breach of the principles of sound financial management              the French Republic, Chronopost SA and La Poste, was brought
      and the sound administration of justice: the Court of First         before the Court of Justice of the European Communities on
      Instance failed to take account of the main purpose of              26 February 2001 by the French Republic, represented by
      set-off, which is economy of procedure and the saving of            G. de Bergues and F. Million, acting as Agents, with an address
      costs, not only in the context of mutual financial                  for service in Luxembourg.
      obligations, but also in the context of the sound adminis-
      tration of justice.
                                                                          The appellant claims that the Court should:
                                                                          —     set aside the judgment of the Court of First Instance;
Reference for a preliminary ruling by the Monomeles
Dioikitiko Protodikeio Irakliou (Second Chamber) by                       —     order the UFEX to pay the costs incurred in the proceed-
judgment of that court of 31 October 2000 in the case of                        ings before the Court of Justice and make a fresh ruling
             G. Stilianakis against the Greek State                             in relation to the costs incurred in the proceedings before
                                                                                the Court of First Instance.
                           (Case C-92/01)
                          (2001/C 150/20)
                                                                          Pleas and main arguments
Reference has been made to the Court of Justice of the
European Communities by judgment of the Monomeles Dioiki-
tiko Protodikeio Irakliou (Administrative Court of First                  —     Misinterpretation of ‘normal market conditions’: The
Instance, Heraklion), Second Chamber, of 31 October 2000,                       Court of First Instance erred in holding that when the
received at the Court Registry on 22 February 2001, for a                       Commission carried out an analysis of the economic
preliminary ruling in the case of G. Stilianakis against the                    factors on the basis of which it was considered possible
Greek State on the following question:                                          to assess whether remuneration was ‘normal’, it should
                                                                                have taken into account the implications for La Poste’s
Are Articles 8a and 59 of the EC Treaty and Article 3(1) of                     costs — hence on the remuneration requested from its
Council Regulation No 2408/92 (1) to be interpreted as                          subsidiary — of its structural situation (its reserved
prohibiting a Member State from imposing a differentiated                       sector).
fiscal charge on domestic and intra-Community flights with
the direct result that an amount of tax is charged on intra-
Community flights double that on flights within the Member                      The approach espoused by the Court of First Instance has
State?                                                                          no basis in reality, since a private operator with no
                                                                                reserved activities would never wish to equip itself with a
                                                                                network like the La Poste network, which was developed
(1) OJ L 240 of 24.8.1992, p. 8.                                                solely to meet the needs of the reserved sector. Moreover,
                                                                                no private operator desires access to the La Poste network,
                                                                                despite the allegedly cheaper rates offered.