European Commission v Deutsche Post AG.
Date: 2010-09-02
38. First of all, according to settled case-law, the classification as ‘aid’ within the meaning of Article 87(1) EC requires that all the conditions set out in that provision are fulfilled (Case C-142/87 Belgium v Commission [1990] ECR I-959 (‘ Tubemeuse ’), paragraph 25; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-4777, paragraph 125; and Case C-206/06 Essent Netwerk Noord and Others  [2008] ECR I-5497, paragraph 63).
39. Thus, for a national measure to be classified as State aid, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition (see to that effect, in particular, Case C‑237/04 Enirisorse  [2006] ECR I‑2843, paragraphs 38 and 39; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 56; and Case C‑169/08 Presidente del Consiglio dei Ministri  [2009] ECR I‑0000, paragraph 52).
40. Since this ground of appeal concerns only the third of those conditions, it is appropriate to note that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid ( Enirisorse , paragraph 30; Servizi Ausiliari Dottori Commercialisti , paragraph 59; and Essent Netwerk Noord and Others , paragraph 79).
41. In that context, with regard to undertakings responsible for an SGEI, the Court has held that where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, that measure is not caught by Article 87(1) EC (see, to that effect, Ferring , paragraph 27; Altmark Trans and Regierungspräsidium Magdeburg , paragraph 87; Enirisorse , paragraph 31; and Essent Netwerk Noord and Others , paragraph 80).
42. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88; Servizi Ausiliari Dottori Commercialisti , paragraph 61; and Essent Netwerk Noord and Others , paragraph 81).
43. In particular, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations (see, to that effect, Ferring , paragraph 32; Altmark Trans and Regierungspräsidium Magdeburg , paragraph 92; Servizi Ausiliari Dottori Commercialisti , paragraph 66; and Essent Netwerk Noord and Others , paragraph 84).
63. It should be recalled at the outset that, according to settled case‑law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject, as such, to review by the Court of Justice (see, among others, Case C‑419/08 P Trubowest Handel and Makarov v Council and Commission  [2010] ECR I‑0000, paragraphs 30 and 31 and the case‑law cited).
64. In addition, it is important to note that the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence ( Trubowest Handel and Makarov  v Council and Commission , paragraph 32 and the case-law cited).
75. It should be recalled that, according to settled case-law, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory (Case C‑184/01 P Hirschfeldt v EEA  [2002] ECR I‑10173, paragraph 48; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 148; and order of 9 March 2007 in Case C‑188/06 P Schneider Electric  v Commission , paragraph 64).
84. As is clear from Article 230 EC, the object of an action for annulment is to review the legality of acts adopted by the Community institutions named therein, since the analysis of the pleas in law raised in such an action has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure (see, to that effect, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission  [2004] ECR I‑123, paragraph 103).
93. Having first decided that the Commission had acknowledged, at least implicitly, that DPAG bore costs partly associated with the provision of SGEI, as noted in paragraphs 66 to 73 of the present judgment, the General Court then, in the context of a review of legality, correctly examined the complaint made by DPAG concerning the method followed by the Commission as regards the calculation of any overcompensation in the sense of the third condition under the judgment in Altmark Trans and Regierungspräsidium Magdeburg , as noted in paragraphs 41 to 43 of the present judgment.
97. However, it must be held, in accordance with settled case‑law, that review by the Community judicature of complex economic assessments made by the Commission, such as those in this case, must necessarily be confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers ( Aalborg Portland and Others  v Commission , paragraph 279, and Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others  [2009] ECR I‑0000, paragraph 85).