Notice for the OJ
Action brought on 4 September 2002 by Deutsche Post AG against the Commission of the European Communities
(Case T-266/02)
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 4 September 2002 by Deutsche Post AG, Bonn (Germany), represented by J. Sedemund and T. Lübbig, with an address for service in Luxembourg.
The applicant claims that the Court should :
-declare the Commission Decision of 19 June 2002 on State aid No 61/99 (ex No 153/96) void;
-order the Commission to pay the costs.
Pleas in law and main arguments
The subject of the contested decision is the below-cost selling of parcel services for business clients, compensating for which gives rise to cross-subsidisation which is contrary to the law on aid. In its decision the Commission found that the State aid of EUR 572 million, which Germany granted to the applicant, was incompatible with the common market. It found that State compensation for the net additional costs of a rebate policy which reduces the costs normally incurred in providing door to door parcel services which are open to competition favoured the undertaking within the meaning of Article 87(1) EC.
The applicant contests that decision and points out that the same below-cost selling was the subject of the Commission Decision of 20 March 2000
1 adopted on the basis of Article 82 EC and that the two decisions came to very different conclusions regarding the duration, the amount and the source of financing of the alleged below-cost selling. The applicant submits that the below-cost selling alleged in the Decision is based on a miscalculation.
The applicant also argues that the Commission's assertion that the below-cost selling complained of arose as a result of an aggressive rebate policy and that there is thus no causal link between it and the applicant's public service obligations is not based on any evidence and is clearly inaccurate. Further, the Commission has exceeded its powers in the area of services in the general economic interest, as, according to the case-law, it has no authority to decide on the level of costs or the efficiency of the postal service provider.
The applicant submits that the Commission has misapplied Article 87 and infringed the case-law on findings regarding aid to undertakings providing services in the general economic interest. The Commission has furnished no evidence that the decision on cross-subsidisation in favour of the business client parcel service can be attributed to State-run bodies of the Federal Republic of Germany. Moreover the Commission has disregarded the fact that a purely internal offsetting of losses within an undertaking does not constitute aid, but is merely covered by Article 82. It has also disregarded the fact that the financing of temporary below-cost selling was an economically sound decision.
Finally, the applicant submits that the Commission has infringed the principle of the right to a fair hearing.
____________1 - Commission Decision 2001/354/EC of 20 March 2001 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).