CELEX: 62007TJ0421(01)
Language: en
Date: 2015-09-18 00:00:00
Title: Judgment of the General Court (First Chamber) of 18 September 2015.#Deutsche Post AG v European Commission.#State aid — Postal delivery — Measures taken by the German authorities in favour of Deutsche Post AG — Decision to initiate the procedure laid down in Article 88(2) EC — Interest in bringing proceedings — Re-opening of a closed procedure — Effects of a judgment annulling a measure.#Case T-421/07 RENV.

Parties
               Grounds
               Operative part
               
            
            Parties
            In Case T‑421/07 RENV,
            Deutsche Post AG, established in Bonn (Germany), represented by J. Sedemund and T. Lübbig, lawyers,
            applicant,
            v
            European Commission,  represented by B. Martenczuk, T. Maxian Rusche and R. Sauer, acting as Agents,
            defendant,
            supported by
            UPS Europe NV/SA,  established in Brussels (Belgium),
            and
            UPS Deutschland Inc. & Co. OHG,  established in Neuss (Germany),
            represented by T. Ottervanger, lawyer,
            interveners,
            APPLICATION for annulment of the Commission Decision of 12 September 2007 to initiate the procedure laid down in Article 88(2) [EC] in respect of State aid granted by the Federal Republic of Germany to Deutsche Post AG (State aid C 36/07 (ex NN 25/07)),
            THE GENERAL COURT (First Chamber),
            composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,
            Registrar: K. Andová, Administrator,
            having regard to the written procedure and further to the hearing on 9 January 2015,
            gives the following
            Judgment 
            
            Grounds
            Background to the dispute 
            1. On 7 July 1994, the private parcel delivery company UPS Europe NV/SA brought a complaint before the Commission of the European Communities against the German public postal undertaking Deutsche Bundespost Postdienst (‘DB-Postdienst’), whose activities were taken over on 1 January 1995 by the applicant, Deutsche Post AG. That complaint, based on both Article 86 of the EC Treaty (which became Article 82 EC) and Article 92 of the EC Treaty (which became Article 87 EC), was followed by another complaint brought in 1997 by the association of private providers of messenger services and express mail and parcel delivery services, the Bundesverband Internationaler Express- und Kurierdienste e.V.
            2. UPS Europe and Bundesverband Internationaler Express-und Kurierdienste accused DB-Postdienst of applying a policy of selling below cost in the door-to-door parcel delivery sector, which was open to competition, financed through income generated in the mail delivery sector, in which it enjoyed a legal monopoly, or through aid contrary to Article 87 EC.
            3. By letter dated 17 August 1999, published in the Official Journal of the European Communities  on 23 October 1999 (OJ 1999 C 306, p. 25), the Commission informed the Federal Republic of Germany of its decision to initiate the formal investigation procedure laid down in Article 88(2) EC with regard to several measures under which the applicant had received public funds (‘the 1999 decision’).
            4. On 19 June 2002, the Commission adopted Decision 2002/753/EC on measures implemented by the Federal Republic of Germany for the applicant (OJ 2002 L 247, p. 27, ‘the 2002 decision’), the operative part of which is worded as follows: 
            ‘ Article 1 
            The State aid totalling EUR 572 million (DEM 1 118.7 million) which [the Federal Republic of Germany] has granted to [the applicant] is incompatible with the common market. 
            Article 2 
            1. [The Federal Republic of Germany] shall take the necessary steps to recover from [the applicant] the aid referred to in Article 1, which was granted unlawfully.
            …’
            5. By its judgment of 1 July 2008 in Deutsche Post  v Commission  (T‑266/02, ECR, EU:T:2008:235, ‘the annulment judgment’) the General Court annulled the 2002 decision. The appeal brought by the Commission against that judgment was dismissed by judgment of 2 September 2010 in Commission  v Deutsche Post  (C‑399/08 P, ECR, EU:C:2010:481).
            6. On 11 May 2004, UPS Europe lodged a new complaint with the Commission, claiming that, in the 2002 decision, the Commission had not examined all of the public measures mentioned in the 1994 complaint and that the advantages which the applicant had received exceeded to a large extent the amount which the Commission had ordered to be recovered. In turn, on 16 July 2004, TNT Post AG & Co. KG lodged a complaint alleging that the tariffs of the services invoiced by the applicant to one of its subsidiaries were excessively low, and that those services were financed by means of income from the mail delivery sector.
            7. By letter dated 12 September 2007, the Commission informed the Federal Republic of Germany of its decision to initiate the procedure laid down in Article 88(2) EC in respect of State aid granted by the German authorities to Deutsche Post (State aid C 36/07 (ex NN 25/07)) (‘the contested decision’). The contested decision was published in the Official Journal of the European Union  of 19 October 2007 (OJ 2007 C 245, p. 21) in the authentic language, German, preceded by a summary in the other official languages. 
            8. In the contested decision, first of all, the Commission recalled the procedures initiated against the applicant pursuant to Article 87 EC since 1994. It referred to the need to carry out a comprehensive investigation into all of the distortions of competition which resulted from the public funds granted to the applicant and its predecessor and stated that the procedure initiated by the 1999 decision would be supplemented in order to incorporate the newly submitted information and to adopt a definitive position on the compatibility of those funds with the EC Treaty (recitals 1 to 15 of the contested decision). 
            9. Secondly, the Commission noted that the ‘supplementary investigation’ which it intended to carry out ‘w[ould] by no means substitute the 2002 [d]ecision’, which found that ‘State aid of EUR 572 million had been used to cross subsidise that business, but had left open the question of whether [the applicant and its predecessor] had been overcompensated [for providing services of general economic interest] through State resources’. The Commission explained that it intended to determine whether there had been overcompensation beyond that EUR 572 million, and announced that it would investigate all public measures granted in favour of those undertakings from 1 July 1989, when DB-Postdienst was set up, to 31 December 2007, which is the presumed termination date of the applicant’s mandate of providing services of general economic interest (recital 15 of the contested decision). 
            10. Thirdly, the Commission mentioned three public measures from which DB-Postdienst and the applicant had benefited (recitals 25 to 32, 38, 39 and 40 to 48 of the contested decision).
            11. Fourthly, the Commission stated that the three measures referred to in paragraph 10 above either were State aid or were possibly State aid (recitals 76 to 78 of the contested decision).
            12. Fifth, the Commission stated that it would investigate to what extent the compensation granted to the applicant and its predecessor was necessary to ensure the fulfilment of the universal service obligations (recitals 80 and 81 of the contested decision). 
            13. Sixth, and last, the Commission requested the Federal Republic of Germany to ‘submit its comments within one month of receipt of the [contested decision]’ and ‘to provide all necessary information for the legal assessment of the measures in the light of the provisions on State aid’. 
            Procedure before the General Court and the Court of Justice 
            14. By application lodged at the Registry of the General Court on 22 November 2007 the applicant sought the annulment of the contested decision and an order that the Commission pay the costs. 
            15. The Commission lodged a defence at the Court Registry on 6 February 2008 in which it requested the Court to dismiss the action before it as inadmissible or, in the alternative, unfounded and to order the applicant to pay the costs. 
            16. By letter lodged at the Court Registry on 29 February 2008, UPS Europe and UPS Deutschland Inc. & Co. OHG (together ‘UPS’) requested leave to intervene in support of the form of order sought by the Commission.
            17. By Order of 9 July 2008 the President of the First Chamber of the General Court granted UPS’s application for leave to intervene. 
            18. By judgment of 8 December 2011, Deutsche Post  v Commission  (T‑421/07, ECR, EU:T:2011:720), the Court dismissed the action as inadmissible and ordered the applicant to bear its own costs and pay those incurred by the Commission. UPS was ordered to bear its own costs. 
            19. By application lodged at the Registry of the Court of Justice on 13 February 2012, the applicant brought an appeal against the judgment of the General Court, pursuant to Article 56 of the Statute of the Court of Justice of the European Union.
            20. By judgment of 24 October 2013 in Deutsche Post  v Commission  (C‑77/12 P, EU:C:2013:695, ‘the judgment on appeal’), the Court of Justice set aside the judgment of the General Court, referred the case back to the General court and reserved the costs.
            Procedure and forms of order sought after the referral back to the General Court 
            21. Following the judgment on appeal and in accordance with Article 118(1) of the Rules of Procedure of the General Court of 2 May 1991, the case was assigned to the First Chamber by decision of the President of the General Court of 13 November 2013. 
            22. In accordance with Article 119(1) of the Rules of Procedure of 2 May 1991, the applicant and the Commission lodged written observations at the Registry of the General Court on 23 December 2013 and 19 February 2014 respectively. UPS waived its right to lodge written observations on 17 April 2014.
            23. The General Court put written questions to the parties in the context of measures of organisation of the procedure under Article 64 of the Rules of Procedure of 2 May 1991, to which the parties replied within the time allowed. In particular, the Court wished to establish, in the interests of the proper administration of justice and with a view to optimising the handing of the three cases pending before it between the applicant and the Commission, that is to say, first, the present case, secondly, Case T‑388/11, Deutsche Post  v Commission  and, thirdly, Case T‑152/12, Deutsche Post  v Commission , to ascertain the parties’ views on what the priorities could or should be in terms of the order in which those cases should be dealt with and on the possibility of staying the proceedings in one or more of the cases pending the judgment in the remaining case or cases. In Case T‑388/11, Deutsche Post  v Commission , the applicant seeks annulment of Commission Decision C(2011) 3081 final of 10 May 2011, by which the Commission decided to extend the formal investigation procedure that was underway concerning State aid granted by Germany to the applicant by way of compensation in respect of its universal service obligations to the subsidies paid by the German authorities to the applicant in order to cover the pension costs of employees engaged as officials (State aid C 36/07 (ex NN 25/07)). In Case T‑152/12, Deutsche Post  v Commission , the applicant seeks the annulment of Articles 1, 2 and 4 to 6 of Commission Decision 2012/636/EU of 25 January 2012 concerning Measure C 36/07 (ex NN 25/07) implemented by Germany in favour of the applicant (OJ 2012 L 289, p. 1).
            24. The parties having submitted their observations, by Orders of 15 September 2014 of the President of the First Chamber of the General Court in Case T‑388/11, Deutsche Post  v Commission , and of the President of the Eighth Chamber in Case T‑152/12, Deutsche Post  v Commission , proceedings in both those cases were stayed pending final judgment in the present case. 
            25. The parties presented oral argument and answered the questions put by the Court at the hearing on 9 January 2015. 
            26. In its statement of observations of 23 December 2013, the applicant claims that the Court should: 
            – annul the contested decision; 
            – order the Commission to pay the costs. 
            27. At the hearing, the applicant withdrew part of its application, abandoning its claim for annulment of the contested decision to the extent that it initiated the formal investigation procedure with regard to certain State guarantees granted to its predecessor and itself. It maintained its application as to the remainder and, thus, in so far as concerns the initiation of the formal investigation procedure with regard to the other public measures referred to in the contested decision (‘the contested measures’). 
            28. The Commission, supported by UPS, contends that the General Court should: 
            – declare that it is no longer necessary to rule on the action;
            – in the alternative, dismiss the action; 
            – order the applicant to pay the costs. 
            Law 
            Legal interest in bringing proceedings 
            29. According to settled case-law, an applicant’s legal interest in bringing proceedings must exist on the day on which they are brought, failing which they will be inadmissible. Furthermore, the applicant’s interest in obtaining satisfaction must continue until the final decision, failing which there will be no need to adjudicate (see, to that effect, the judgments of 16 December 1963 in Forges de Clabecq  v High Authority , 14/63, ECR, EU:C:1963:60, paragraph 748, and of 7 June 2007 in Wunenburger  v Commission , C‑362/05 P, ECR, EU:C:2007:322, paragraph 42).
            30. In its observations following the referral back to the General Court, the Commission argues that, following the annulment of the 2002 decision, the applicant no longer has any legal interest in challenging the contested decision and requests the Court to find that there is no longer any need to adjudicate on the action.
            31. The Commission points out that, in the judgment on appeal, the Court held that, notwithstanding the annulment of the 2002 decision, the action had to be regarded as admissible when it was brought on 22 November 2007, since the 2002 decision had not been annulled by that date. However, the Court of Justice did not rule on the question whether, given the annulment of the 2002 decision, the action had since become devoid of purpose. On that point, the Commission states, first, that the formal investigation procedure initiated by the 1999 decision concerned the contested measures and, secondly, that the sole legal effect of the contested decision, that is to say, the obligation upon the Federal Republic of Germany to suspend implementation of the contested measures, had already arisen as a result of the 1999 decision to initiate the procedure. As a result of the annulment of the 2002 decision on 1 July 2008, the formal investigation procedure initiated by the 1999 decision had been re-opened in its entirety. The Commission also states that, following the annulment of the 2002 decision, it was required, under Article 233 EC, to take the necessary measures to comply with the annulment judgment, which included bringing the formal investigation to a close by means of a final decision. The Commission concludes that the annulment of the contested decision is no longer capable of procuring any advantage for the applicant inasmuch as, first, the formal investigation procedure remains open and must be brought to a close by means of a final decision and, secondly, the obligation to suspend the implementation of the measures still exists.
            32. The applicant disputes the Commission’s arguments and claims that it retains an interest in bringing legal proceedings against the contested decision. 
            33. It must be recalled in this connection that the legal interest in bringing proceedings referred to in the case-law mentioned in paragraph 29 above is a condition of admissibility that must, even in the event of an appeal, continue up until the Court’s ruling on the substance. According to the case-law of the Court, such an interest exists as long as the appeal may, if successful, procure an advantage for the party bringing it (judgment of 14 September 2010 in Akzo Nobel Chemicals and Akcros Chemicals  v Commission , C‑550/07 P, ECR, EU:C:2010:512, paragraphs 22 and 23).
            34. Since, first of all, the 2002 decision was annulled on 1 July 2008, and therefore prior to delivery of the judgment on appeal, and, secondly, the Court mentioned that decision’s annulment in its judgment and could not, therefore, have been unaware of the effects of that annulment, it must be held that, by upholding the applicant’s appeal, it implicitly, but necessarily, found that the applicant did retain a legal interest in bringing proceedings against the contested decision, even after the annulment of the 2002 decision.
            35. In this connection, it must also be held that the applicant retains a legal interest in bringing proceedings against the contested decision in view of the particular circumstances of the case, that is to say, the fact that the Commission has, since 1999, adopted several decisions in succession concerning the measures adopted in favour of the applicant and, in particular, the fact that, should the Court uphold in the present case certain of the applicant’s arguments relating to observance of the reasonable time requirement, that could not only lead to the annulment of the contested decision but could also affect the Commission’s obligation to take that into account in any subsequent investigation into those measures.
            36. The Commission’s claim that there is no need to adjudicate must therefore be rejected. 
            Substance 
            37. The applicant puts forward three pleas in law in support of its application for partial annulment of the contested decision. The Commission, supported by UPS, contests those pleas. The pleas allege, first, infringement of basic principles of procedure, secondly, breach of the duty to state reasons and, thirdly, infringement of Article 87(1) EC and Article 88 EC.
            38. The applicant bases its first plea on several grounds. By the first of these, which it is appropriate to consider first, it disputes the Commission’s entitlement to initiate the formal investigation procedure with regard to the contested measures, since those measures have already been formally investigated in a procedure that has been brought to a close and a reasonable period of time for the necessary investigation has already been exceeded. It maintains that, in accordance with the case-law, the Commission cannot order the recovery of unlawful aid after an unduly long period of inactivity and that is to safeguard the principle of the protection of legitimate expectations. Moreover, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 199 L 83, p. 1), as well as the basic principles of procedure, including in particular the principle of legal certainty, preclude the re-opening of a procedure that has already been closed.
            39. The Commission replies that the period of time which elapsed prior to the adoption of the contested decision was reasonable, given the complexity of the investigation into DB-Postdienst’s and the applicant’s expenditure and income over a period of more than 20 years and given the fact that it had received information after adopting the 2002 decision which had brought new issues to light. Moreover, Article 15(1) of Regulation No 659/1999 provides for a limitation period of 10 years with regard to unlawful aid and no legitimate expectations may be based on the passage of time where a limitation period is expressly provided for. Furthermore, the Commission points out that it was obliged to restart the formal investigation procedure after the 2002 decision was annulled, and that the contested decision had merely anticipated that eventuality, and that, since final decisions may be revoked under Article 9 of Regulation No 659/1999, they are therefore not necessarily definitive.
            40. It is appropriate to begin by considering whether, by adopting the contested decision, the Commission infringed Regulation No 659/1999 and the principle of legal certainty.
            41. First of all, it is important to point out that both the Commission, in its observations on the judgment on appeal, and the applicant, in its response to the Court’s measures of organisation of the procedure, referred to in paragraph 23 above, and at the hearing, have confirmed that the contested measures had already been formally investigated, in the procedure initiated by the 1999 decision, as indeed this Court had already found in paragraphs 56 to 60 of its judgment in Deutsche Post  v Commission , cited in paragraph 18 above (EU:T:2011:720), without the Court of Justice pointing, in the judgment on appeal, to any error whatsoever in that regard.
            42. It must therefore be concluded that the formal investigation procedure concerning the contested measures was initiated in 1999.
            43. Secondly, it must be recalled that, pursuant to Article 7(1) of Regulation No 659/1999, which, in accordance with Article 13(1) of that regulation, applies to procedures relating to unlawful aid, the formal investigation procedure is to be closed by means of a decision as provided for in paragraphs 2 to 5 of Article 7, except where the Member State concerned withdraws its notification, and that the Court of Justice held, in the judgment on appeal, that, by the 2002 decision, the Commission completely closed the formal investigation procedure initiated in 1999 (paragraphs 56 to 64 of the judgment on appeal). 
            44. The contested decision must therefore be regarded, in so far as concerns the contested measures, as a decision re-opening a formal investigation procedure that had been completely closed.
            45. Thirdly, it is appropriate to point out that Article 9 of Regulation No 659/1999 permits the revocation of a decision closing a formal investigation procedure only where that decision was based on incorrect information of decisive importance provided during the procedure. Article 9 also indicates that, before revoking such a decision and taking a new decision, the formal investigation procedure must be opened. 
            46. Admittedly, Article 9 of Regulation No 659/1999 does not offer the only possibility for the Commission to amend a decision closing a formal investigation procedure.
            47. That provision is merely a specific expression of the general principle of law according to which retroactive withdrawal of an unlawful administrative act which has created subjective rights is permissible, in particular if the administrative act at issue was adopted on the basis of false or incomplete information provided by the party concerned. The right to withdraw retroactively an unlawful administrative act which has created subjective rights is not, however, limited to that situation alone, since such a withdrawal may always be carried out provided that the institution which adopted the act complies with the conditions relating to reasonable time-limits and the legitimate expectations of beneficiaries of the act who have been entitled to rely on its lawfulness (see the judgment of 12 September 2007 in González y Díez  v Commission , T‑25/04, ECR, EU:T:2007:257, paragraph 97 and the case-law cited).
            48. However, the Commission never had it in mind to revoke or withdraw the 2002 decision, as indeed it acknowledges in its pleadings. Nor has it maintained that the 2002 decision was based on false information. Instead, it has justified the initiation of a new formal investigation procedure by reference to the need to supplement the procedure initiated in 1999 in order to incorporate the newly submitted information (recital 14 of the contested decision). Moreover, in recital 15 of the contested decision, the Commission stated that the contested decision did not replace the 2002 decision (see paragraph 9 above).
            49. The contested decision cannot, therefore, be regarded as a decision withdrawing or revoking the 2002 decision adopted either under Article 9 of Regulation No 659/1999 or in accordance with the general legal principle that the retroactive withdrawal of an unlawful administrative act is permissible in certain circumstances.
            50. Fourthly, it must be observed that no provision of Regulation No 659/1999 allows the Commission to re-open a formal investigation procedure that has been closed or to adopt a new decision without first revoking or withdrawing the closure decision. 
            51. Admittedly, Regulation No 659/1999 does not expressly prohibit such a re-opening of the procedure. Nevertheless, that would be contrary to the principle of legal certainty and contrary to the spirit of that regulation, recital 3 of which makes clear that the need to increase legal certainty was one of the reasons for its adoption, and recital 9 of which indicates that formal investigation procedures are brought to a close by a ‘final’ decision. 
            52. Indeed, such a re-opening of the procedure would imply the coexistence in the legal order of two incompatible decisions. Moreover, to allow the Commission to re-open a formal investigation procedure that has been closed and to adopt a new decision without first revoking or withdrawing the closure decision would enable the Commission to go back on its decisions at any time and would therefore deprive the parties concerned by an investigation procedure that has been closed of all legal certainty regarding their legal position.
            53. In light of the foregoing, it must be concluded that the contested decision was adopted in breach of Regulation No 659/1999 and of the principle of legal certainty, since it re-opened the formal investigation procedure that had been completely closed by the 2002 decision in order that a new decision might be adopted without the earlier decision being either revoked or withdrawn.
            54. At the hearing, the Commission acknowledged that the re-opening of a formal investigation procedure that has been completely closed, as in the present case, is unlawful unless the closure decision is revoked or withdrawn. However, according to the Commission, account must be taken of the fact that, in this case, the annulment of the 2002 decision had the effect of removing from the legal order, with retroactive effect, the decision to close the formal investigation procedure initiated in 1999. The contested decision is therefore unlawful. 
            55. It must be recalled in this connection that the legality of a measure must be assessed on the basis of the situation pertaining at the time of its adoption (judgment of 7 February 1979 in France  v Commission , 15/76 and 16/76, ECR, EU:C:1979:29, paragraph 7). However, when the contested decision was adopted, in 2007, the annulment judgment, delivered in 2008, had not yet come into existence and the Commission could not, therefore, have taken it into consideration. Moreover, the subsequent retroactive annulment of the 2002 decision does not mean that its existence could not be taken into account in any assessment of the procedural situation pertaining prior to that annulment, as is clear from the judgment on appeal, in which the Court of Justice stated that, when the contested decision was adopted, the 2002 decision was still part of the EU legal order and was still in force (paragraphs 65 and 66 of the judgment on appeal). 
            56. Next, it is appropriate to point out that the contested decision was adopted on the premiss that the 2002 decision had not entirely closed the procedure and that, consequently, the continuation of the procedure which resulted in the contested decision amounted to a ‘supplementary investigation’ (see paragraph 9 above). As the Court of Justice held in the judgment on appeal, that premiss was false and the Commission was not entitled to adopt the contested decision on that basis (see paragraph 53 above). 
            57. Admittedly, it is true that, under the first paragraph of Article 231 EC, when an action for annulment is well-founded, the EU judicature must declare the contested act void. In accordance with consistent case-law, it follows that the decision of annulment leads to the disappearance retroactively of the contested act with regard to all persons (judgments of 1 June 2006 in P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya  v Commission , C‑442/03 P and C‑471/03 P, ECR, EU:C:2006:356, paragraph 43, and 12 February 2008 in CELF and Ministre de la Culture et de la Communication , C‑199/06, ECR, EU:C:2008:79, paragraph 61). Accordingly, once the annulment judgment was delivered, the 2002 decision disappeared retroactively.
            58. The annulment of the 2002 decision by the annulment judgment imposed an obligation on the Commission to take the necessary measures to comply with that judgment, in accordance with Article 233 EC. To that end, it must take into consideration the fact that the 2002 decision disappeared with retroactive effect.
            59. On that last point, it must be recalled that an institution whose act has been annulled is required, in order to comply with the judgment and implement it fully, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, inasmuch as they are necessary in order to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (judgment of 26 April 1988 in Asteris and Others  v Commission 97/86, 193/86, 99/86, and 215/86, ECR 2181, paragraph 27). 
            60. Accordingly, in so far as concerns the re-opening of a formal investigation procedure that had been closed, it must be held that, when the Commission re-opens such a procedure following the annulment of the closure decision, it is in a different legal situation from that which pertained when it adopted the contested decision, which was not founded on the non-existence of the 2002 decision.
            61. Consequently, the Commission cannot validly rely on the annulment judgment in order to argue the lawfulness of the contested decision, since its adoption of that latter decision took into account the 2002 decision, which was annulled by that judgment. Nor can the contested decision constitute, in such circumstances, an act ‘anticipating’ the annulment judgment, as the Commission argues.
            62. Finally, the annulment of a decision closing a formal investigation procedure must be regarded, in the absence of any withdrawal or revocation of that decision, as a necessary and formal pre-condition of the re-opening of that procedure, otherwise the parties concerned by the formal investigation procedure would be placed in a position of uncertainty regarding the nature of the decision re-opening the procedure which would be incompatible with the need to increase legal certainty, which was one of the reasons for the adoption of Regulation No 659/1999 (see paragraph 51 above). 
            63. It follows from all the foregoing considerations that the Commission was not entitled to adopt the contested decision prior to the annulment of the 2002 decision. Therefore, the first ground of the applicant’s first plea is well-founded.
            64. Since the first plea must be upheld, the contested decision must be annulled, without it being necessary for the Court to consider the other pleas, complaints and arguments put forward by the applicant in support of its claim.
            Costs 
            65. Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs incurred in respect of the action for annulment, including those incurred in the appeal before the Court of Justice, as applied for by the applicant in its pleadings. 
            66. UPS shall bear its own costs pursuant to the third subparagraph of Article 138(3) of the Rules of Procedure. 
            
            Operative part
            On those grounds,
            THE GENERAL COURT (First Chamber)
            hereby:
            1. Annuls the Commission Decision of 12 September 2007 to initiate the procedure laid down in Article 88(2) EC in respect of State aid granted by the Federal Republic of Germany to Deutsche Post AG (State aid C 36/07 (ex NN 25/07)) to the extent that it initiated the formal investigation procedure with regard to the public measures referred to, with the exception of the State guarantees granted to Deutsche Bundespost Postdienst and Deutsche Post; 
            2. Orders the European Commission, in addition to bearing its own costs, to pay those incurred by Deutsche Post in respect of the action for annulment, including those incurred in the appeal proceedings before the Court of Justice; 
            3. Orders UPS Europe NV/SA and UPS Deutschland Inc. & Co. OHG to pay their own costs.