Deutsche Post AG and Federal Republic of Germany v European Commission.
Date: 2011-10-13
36. According to consistent case-law, developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, within the meaning of Article 263 TFEU (see, in particular, Case 22/70 Commission  v Council  (‘ ERTA’ ) [1971] ECR 263, paragraph 42; Case C‑316/91 Parliament  v Council  [1994] ECR I-625, paragraph 8; Spain  v Commission , cited above, paragraph 27; Joined Cases C‑138/03, C‑324/03 and C‑431/03 Italy  v Commission  [2005] ECR I‑10043, paragraph 32; Case C‑301/03 Italy  v Commission  [2005] ECR I‑10217, paragraph 19; Case C‑370/07 Commission  v Council  [2009] ECR I‑8917, paragraph 42). The case-law further shows that a Member State, such as the applicant in Case C‑475/10 P, may admissibly bring an action for annulment of a measure producing binding legal effects without having to demonstrate that it has an interest in bringing proceedings (see, to that effect, Case 45/86 Commission  v Council  [1987] ECR. 1493, paragraph 3 and Commission v Council  [2009] ECR I-8917, paragraph 16).
37. Where the action for annulment against an act adopted by an institution is brought by a natural or legal person, the Court of Justice had repeatedly held that the action lies only if the binding legal effects of that act are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, in particular, IBM  v Commission , paragraph 9; Athinaïki Techniki  v Commission , paragraph 29; Case C‑322/09 P NDSHT  v Commission  [2010] ECR I-0000, paragraph 45).
38. It must, however, be emphasised that the case-law cited in the paragraph above was developed in the context of actions brought before the EU judicature by natural or legal persons against measures of which they were the addressees. Where, as in the case giving rise to the order in Deutsche Post  v Commission , an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU.
50. In that regard, admittedly, intermediate measures whose aim is to prepare the final decision do not, in principle, constitute acts which may form the subject-matter of an action for annulment ( IBM  v Commission , paragraph 10; Athinaïki Techniki  v Commission , paragraph 42; Case C‑362/08 P Internationaler Hilfsfonds  v Commission  [2010] ECR I‑669, paragraph 52). However, the intermediate acts thus referred to are first acts which express a provisional opinion of the institution (see, to that effect, IBM  v Commission , paragraph 20; Joined Cases C‑133/87 and C‑150/87 Nashua Corporation and Others  v Commission and Council  [1990] ECR I‑719, paragraphs 8 to 10; Case C‑282/95 P Guérin Automobiles  v Commission  [1997] ECR I‑1503, paragraph 34; Case C‑147/96 Netherlands  v Commission  [2000] ECR I‑4723, paragraph 35).
51. An action for annulment against measures expressing a provisional opinion of the Commission might make it necessary for the EU judicature to arrive at a decision on questions on which the institution concerned has not yet had an opportunity to state its position and would as a result anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial. To allow such an action would thus be incompatible with the system of the division of powers between the Commission and the EU judicature and of the remedies laid down by the Treaty, as well as the requirements of the sound administration of justice and the proper course of the administrative procedure to be followed in the Commission ( IBM  v Commission , paragraph 20).
52. However, in this case, an action for annulment directed against the act at issue, whereby the Commission requests information from the German authorities on the revenues and costs of Deutsche Post, for the period from 1989 to 2007, does not involve a risk of confusion of the various stages of the administrative and judicial procedures ( IBM  v Commission , paragraph 20). Such an action for annulment should not lead the EU judicature to rule on the existence of a State aid measure or its possible compatibility with the internal market.
53. Next, the case-law shows that an intermediate measure is also not capable of forming the subject-matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection ( IBM  v Commission , paragraph 12; Case 53/85 AKZO Chemie and AKZO Chemie UK  v Commission  [1986] ECR 1965, paragraph 19; Case C-400/99 Italy  v Commission  [2001] ECR I 7303, paragraph 63).
54. However, if that latter condition is not satisfied, it will be considered that the intermediate measure – independently of whether the latter expresses a provisional opinion of the institution concerned – produces independent legal effects and must therefore be capable of forming the subject-matter of an action for annulment ( AKZO Chemie and AKZO Chemie UK  v Commission , paragraph 20; Case C‑170/89 BEUC  v Commission  [1991] I‑5709, paragraphs 9 to 11; Case C‑39/93 P SFEI and Others  v Commission  [1994] ECR I‑2681, paragraph 28; Case C- 400/99 Italy  v Commission  [2001] ECR I-7303, paragraphs 57 to 68; Athinaïki Techniki  v Commission , paragraph 54).
59. In the context of an action for failure to fulfil obligations, a Member State which is the addressee of a decision, such as an information injunction, cannot validly justify non-performance of the latter on the basis of its alleged illegality. It is in the context of a distinct procedure, namely that of an action for annulment under Article 263 TFEU, that any challenge to the legality of such an injunction must be made (see, to that effect, Case C‑261/99 Commission  v France  [2001] ECR I‑2537, paragraph 18, Case C‑419/06 Commission  v Greece  [2008] ECR I‑0000, paragraph 52).
66. Concerning, first, the question whether Deutsche Post is directly concerned by the act at issue, with is addressed to the Federal Republic of Germany, it follows from settled case‑law that in order to satisfy that requirement two cumulative criteria must be met, namely, first, the contested Community measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (Joined Cases C‑445/07 P and C‑455/07 P Commission  v Ente per le Ville Vesuviane  and Ente per le Ville Vesuviane  v Commission [2009] ECR I‑7993, paragraph 45 and case-law cited).
71. As for whether Deutsche Post is individually concerned by the act at issue, it should be recalled that, according to consistent case-law of the Court of Justice, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (see, among others, Case C‑260/05 P Sniace  v Commission  [2007] I‑10005, paragraph 53 and case-law cited).