Notice for the OJ
Action brought on 27 November 2003 by Deutsche Post AG and DHL International N.V. /S.A. against the Commission of the European Communities
Language of the case: German
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 November 2003 by Deutsche Post AG, Bonn (Germany), and DHL International N.V./S.A., Diegem (Belgium), represented by J. Sedemund and T. Lübbig, lawyers.
The applicants claim that the Court should:
annul the decision of the European Commission of 23 July 2003 (Aid No N 763/02) and
order the defendant to pay the costs.
Pleas in law and main arguments:
The action is directed against the decision of the European Commission, adopted in a procedure pursuant to Article 88(3) EC, not to raise any objection to the compatibility of a capital injection of EUR 297.5 million into the Belgian postal company La Poste, to the exemption of La Poste from corporation tax and from property tax on real-estate transactions effected by it in connection with the public supply mandate, to La Poste's ability to obtain State guarantees for loans taken out by it, to the cancellation of provision made for pensions, to the overcompensation from which La Poste benefited in respect of its public service tasks and to two capital injections amounting to EUR 62 million in total which were not notified to the Commission.
The applicants submit that the contested decision is incompatible with Article 87(1) EC and Article 253 EC.
The Commission did not treat the exemption of La Poste from corporation tax as State aid only because, from 1992 to 2002, La Poste made net losses and thus would not have been required to pay corporation tax even if no tax exemption had been granted. The Commission thus failed to take account of the fact that, as an abstract rule, the tax exemption automatically grants La Poste a financial advantage over other undertakings at least where it makes taxable profits, thereby enabling the declaration requirement to be avoided.
The Commission failed, in its decision, to take account of the fact that, despite the cancellation of a provision created to cover its obligations to pay pensions to persons employed as postal workers from 1972 to 1992, La Poste continues to be permitted to retain, without consideration, the business premises initially transferred to it by way of compensation for creation of the provision.
The Commission was wrong to take the view that the possibility, laid down in statute, of obtaining State guarantees for certain loans does not constitute aid granted to La Poste provided that it has made no use of that facility.
The contested decision is unlawful because, when offsetting the financial advantages granted to La Poste against the net additional costs of the universal postal service, the Commission failed to take account of the abovementioned measures.
The Commission offset the net additional costs of performing services in the public interest against the corresponding compensation as a whole, without examining whether the compensation was actually paid in respect of the period in which the net additional costs in question were incurred.____________