ORDER OF THE GENERAL COURT (Sixth Chamber)
15 May 2013 (*)
(Action for annulment – State aid – Aid granted by the Belgian authorities to De Post-La Poste (now bpost) – Compensation for public service costs – Decision declaring the aid in part incompatible with the internal market and ordering its recovery – Lack of interest in bringing proceedings – Inadmissibility – Offers of further evidence)
In Case T‑413/12,
Post Invest Europe Sàrl, established in Luxembourg (Luxembourg), represented by B. van de Walle de Ghelcke and T. Franchoo, lawyers,
applicant,
v
European Commission, represented by L. Armati, É. Gippini Fournier and D. Grespan, acting as Agents,
defendant,
ACTION for annulment of Articles 2 and 5 to 7 of Commission Decision 2012/321/EU of 25 January 2012 on the measure SA.14588 (C 20/09) implemented by Belgium in favour of De Post-La Poste (now bpost) (OJ 2012 L 170, p. 1),
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen, President, S. Soldevila Fragoso (Rapporteur) and G. Berardis, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Post Invest Europe Sàrl (‘PIE’), is a private limited liability company under Luxembourg law, a wholly-owned subsidiary of MIE Group SA, a public limited liability company under Luxembourg law, itself owned by investment funds advised by CVC Capital Partners.
2 On 16 January 2006, PIE acquired 49% of the shares of De Post-La Poste, a public limited liability company that was until that date wholly owned by the Belgian State. The applicant was at that time jointly controlled by CVC Capital Partners and Post Danmark A/S. In 2009, Post Danmark A/S sold all of its shares in PIE to CVC Capital Partners. De Post-La Poste was renamed bpost on 1 September 2010.
3 At the time the present action was brought, bpost was held by four shareholders, namely the Belgian State (24.14%), the Société fédérale de Participations et d’Investissements SA (25.87%), itself owned by the Belgian State, the applicant (49%) and current and former employees of bpost under the ‘Employee Stock Option Plan’.
4 By letter of 3 December 2002, the Kingdom of Belgium notified the Commission of the European Communities of a project to increase the capital of De Post-La Poste by the amount of EUR 297.5 million. Following a preliminary examination of that measure, on 23 July 2003 the Commission decided not to raise any objections, taking the view that the measure in question did not constitute State aid (Decision C(2003) 2508 final). That decision was annulled by the judgment of the General Court in Case T‑388/03 Deutsche Post and DHL International v Commission [2009] ECR II‑199, confirmed by the judgment of the Court of Justice in Case C-148/09 P Belgium v Deutsche Post and Others [2011] ECR I‑0000.
5 By decision of 13 July 2009, a summary of which is published in the Official Journal of the European Union of 29 July 2009 (OJ 2009 C 176, p. 17), the Commission opened a formal investigation pursuant to Article 88(2) EC. It carried out an examination of all the compensation granted to bpost in application of the different management contracts over the period from 1992 to 2010 and six ad hoc measures, namely the exemption from corporate taxes, the exemption from property tax of buildings used for public service tasks and from other indirect and local taxes, capital injections, State guarantees for loans, the transfer of buildings free of charge and the relief of De Post-La Poste’s pension obligations. The Belgian State and a number of other interested parties submitted observations on the decision to open that procedure and on those measures.
6 The Commission closed the procedure by Decision 2012/321/EU of 25 January 2012 on the measure SA.14588 (C 20/09) implemented by Belgium in favour of De Post-La Poste (now bpost) (OJ 2012 L 170, p. 1; ‘the contested decision’).
7 The enacting terms of the contested decision are worded as follows:
‘Article 1
The State aid in the form of pension relief granted to De Post-La Poste (DPLP, now bpost) implemented by Belgium is compatible with the internal market within the meaning of Article 107(3)(c) of the Treaty on the Functioning of the European Union.
Article 2
The State aid in the form of compensation for public service costs granted to De Post-La Poste (DPLP, now bpost) unlawfully implemented by Belgium in breach of Article 108(3) of the Treaty on the Functioning of the European Union is incompatible with the internal market.
Article 3
The injections of capital into De Post-La Poste (DPLP, now bpost) made by Belgium in 2003 and 2006 do not constitute aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union.
Article 4
The State aid in the form of a State guarantee granted to De Post-La Poste (DPLP, now bpost) unlawfully implemented by Belgium in breach of Article 108(3) of the Treaty on the Functioning of the European Union is incompatible with the internal market.
Article 5
1. Belgium shall recover the incompatible aid granted under the measures referred to in Articles 2 and 4.
2. The sums to be recovered shall bear interest from the date on which they were made available to the recipient until the date of their actual recovery.
3. The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 and Regulation (EC) No 271/2008 amending Regulation (EC) No 794/2004.
4. Belgium shall cancel, with effect from the date of adoption of this Decision, all outstanding payments of aid referred to in Articles 2 and 4.
Article 6
1. Recovery of the aid granted under the measures referred to in Articles 2 and 4 shall be immediate and effective.
2. Belgium shall ensure that this Decision is implemented within four months of the date of its notification.
Article 7
1. Within two months of the notification of this Decision, Belgium shall submit the following information to the Commission:
(a) the total amount (principal and interest) to be recovered from the recipients;
(b) a detailed description of the measures already taken and planned to comply with this Decision;
(c) documents demonstrating that the beneficiary has been ordered to repay the aid.
2. Belgium shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid granted under the schemes referred to in Articles 2 and 4 has been completed. At the Commission’s request, it shall immediately submit information on the measures already adopted and planned for the purpose of complying with this Decision. It shall also provide detailed information concerning the amount of aid and interest already recovered from the beneficiary.
…’
Procedure and forms of order sought by the parties
8 By application lodged at the Registry of the General Court on 20 September 2012, the applicant brought the present action.
9 By document lodged at the Registry of the General Court on 31 October 2012, the Commission raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court.
10 By letter lodged at the Registry of the General Court on 20 December 2012, the Kingdom of Belgium sought leave to intervene in support of the form of order sought by the Commission.
11 On 4 January 2013, the applicant submitted observations on the plea of inadmissibility raised by the Commission.
12 In its application, the applicant claims that the Court should:
– annul Articles 2 and 5 to 7 of the contested decision;
– order the Commission to pay the costs.
13 The Commission contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
14 In its observations on the plea of inadmissibility, the applicant claims that the Court should:
– dismiss the plea of inadmissibility and declare the action admissible;
– in the alternative, reserve its decision until final judgment;
– order the Commission to pay the costs.
Law
15 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings are to be oral. In the present case the Court considers that it has sufficient information from the documents before it and decides that there is no need to open the oral procedure.
16 The Commission submits that the present action is inadmissible on the ground that the applicant has not shown either that it has an interest in bringing proceedings or that it was individually concerned by the contested decision.
17 It is appropriate to begin by examining the first objection to admissibility raised by the Commission, since, if the applicant has no interest in bringing proceedings, it is not necessary to examine whether the contested decision is of direct and individual concern to the applicant within the meaning of the fourth paragraph of Article 263 TFEU (Case T‑326/99 Fern Olivieri v Commission and EMEA [2003] ECR II‑6053, paragraph 66).
18 The Commission argues that the applicant cannot show an interest in bringing proceedings separate from that of bpost, the company receiving the aid of which it is a shareholder, which has itself brought an action for annulment of the contested decision, identical in substance to the present action. The applicant merely asserts that the reimbursement of the aid required by the contested decision results in a reduction in value of the share of the capital in bpost which it holds, without providing any other evidence in that regard.
19 The applicant argues that it has an interest in bringing proceedings against the contested decision since, if that decision were to be annulled, bpost would recover the amount of EUR 301 million paid to the Belgian State pursuant to that decision, which would have the effect of restoring the value of the applicant’s shareholding in bpost. It states that in December 2012 an investment bank was instructed to produce an analysis of the amount and structure of bpost’s capital, with the aim of making a capital reduction of a maximum of EUR 360 million, whereas in 2009 a capital reduction of EUR 772 million was contemplated. That difference is explained mainly by the amount of the State aid reimbursed by bpost and by a potential overcompensation for public services for the years 2011 and 2012. Furthermore, the applicant submits that it has an interest in securing its rights through its own action, without being dependent on procedural decisions taken by bpost in the other case.
Admissibility of the evidence adduced by the applicant at the stage of observations on the plea of inadmissibility
20 First of all, it is necessary to examine the question of the admissibility of the new evidence adduced by the applicant at the stage of the observations on the plea of inadmissibility raised by the Commission.
21 Under Article 44(1) and Article 48(1) of the Rules of Procedure, the application must, in principle, state the nature of any evidence offered in support, but the parties may offer further evidence in support of their arguments in reply or rejoinder, provided that they give reasons for the delay in offering it. In the absence of such reasons or if those reasons are held to be inadequate, the evidence or the offers of evidence submitted are to be excluded as out of time. That time-bar does not apply to offers of evidence in rebuttal or amplification of offers of evidence submitted following evidence in rebuttal from the opposite party in its defence (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 72). Similarly, with regard to observations on a plea of inadmissibility, the submission of new offers of evidence must be regarded as inherent to the right of an applicant to respond to the arguments made by the defendant in its plea of inadmissibility, since there is no procedural rule which requires an applicant to set out all the evidence enabling the admissibility of its action to be established at the stage of the application. The view must therefore be taken that the evidence provided by the applicant at the stage of the observations on the plea of inadmissibility intended to respond to the arguments put forward by the Commission in its plea of inadmissibility are admissible.
The interest in bringing proceedings
22 In accordance with established case-law, an interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings. An action for annulment brought by a natural or legal person is thus admissible only in so far as that person has an interest in the annulment of the contested measure. An applicant’s interest in bringing proceedings presupposes that the annulment of the contested act is capable alone of having legal consequence, that the action is therefore appropriate, by its result, to obtain a benefit for the party which brought it and that that party can show an actual and current interest in the annulment of that act (see judgment of 19 June 2009 in Case T‑269/03 Socratec v Commission, not published in the ECR, paragraph 36 and the case-law cited).
23 In accordance with the case-law, it is the applicant itself which must prove that it has an interest in making its application (Case 206/89 R S. v Commission [1989] ECR 2841, paragraph 8, and Case T‑141/03 Sniace v Commission [2005] ECR II‑1197, paragraph 31). The applicant must, in particular, show that it has an interest in seeing the contested measure annulled. That interest must be vested and present and is evaluated as at the date on which the action is brought (see order in Case T‑78/98 Unione provinciale degli agricoltori di Firenze and Others v Commission [1999] ECR II‑1377, paragraph 30 and the case-law cited, and Case T‑136/05 Salvat père & fils and Others v Commission [2007] ECR II‑4063, paragraph 34). If the interest which an applicant claims concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain. Accordingly, an applicant cannot rely only upon future and uncertain situations to justify its interest in applying for annulment of the contested act (Case T‑138/89 NBV and NVB v Commission [1992] ECR II‑2181, paragraph 33, and Sniace v Commission, paragraph 26).
24 Furthermore, in accordance with the case-law, an applicant must show that it has a legal interest in bringing proceedings separate from that possessed by an undertaking which it partly controls and which is concerned by a Union measure. Otherwise, in order to defend its interests in relation to that measure, its only remedy lies in the exercise of its rights as a member of the undertaking which itself has a right of action (Case T‑597/97 Euromin v Council [2000] ECR II‑2419, paragraph 50, and order of 27 March 2012 in Case T‑261/11 European Goldfields v Commission, not published in the ECR, paragraph 21).
25 In the present case, none of the arguments put forward by the applicant is such as to establish the existence, with regard to it, of a personal interest in bringing proceedings separate from that of bpost.
26 Firstly, the applicant submits that, since it holds 49% of the shares in bpost, it has its own interest in bringing proceedings since the annulment of the contested decision would restore the value of its shareholding in bpost and therefore the value of its own capital. In that regard, it states that since 2009 there were plans to reduce bpost’s capital and thus to reimburse the shareholders, that the amount of that reduction depends on the outcome of the present dispute and that that cannot take place until the dispute is resolved.
27 With regard to the reduction in the value of its own capital caused by the contested decision, however, the applicant has not adduced any evidence to support the view that it alone is affected and not the company bpost as a whole.
28 As regards the possible future reduction in the capital of bpost, it must, firstly, be borne in mind that an applicant cannot rely on future and uncertain situations to justify its interest in applying for annulment of the contested act (see paragraph 23 above) and, secondly, found that such a reduction would of necessity affect all bpost’s shareholders and not only the applicant. Moreover, the applicant has not adduced any evidence to show that the contested decision is capable of threatening its current or future solvency, nor has it referred to any action pending before the national courts concerning the recovery of the aid concerned, whereby the liability of the applicant is at issue (European Goldfields v Commission, paragraph 28).
29 Secondly, the applicant states, without providing further information, that it has an interest in securing its rights through its own action, without being dependent on procedural decisions taken by bpost in its action. It must be recalled that the applicant has, in principle, since it holds 49% of the shares in bpost, the power to decide, jointly with the other shareholders, on the management and policy of bpost and thus also to define the interests which that company must protect. Moreover, the applicant has not disputed the Commission’s argument that the present case is completely identical to Case T‑412/12 brought by bpost, seeking the annulment of Articles 2 and 5 to 7 of the contested decision, and the pleas in law raised in the two applications are identical. That fact shows that the applicant is not being denied justice as regards the interests which it claims to protect (Case 282/85 DEFI v Commission [1986] ECR 2469, paragraph 19). Finally, the applicant has given no indication as to any procedural decisions which bpost may take in Case T‑412/12 which could show that it has its own interest in bringing proceedings.
30 In conclusion, the applicant has failed to show in what way the interests which it claims are its own are distinct from bpost’s interest in having the contested decision annulled. Since the applicant has not shown that it has a personal, vested and current interest in bringing proceedings against the contested decision, its action must, accordingly, be declared inadmissible, without it being necessary to examine the second plea of inadmissibility raised by the Commission, alleging that the applicant was not individually concerned by the contested decision.
31 In those circumstances, there is no need to adjudicate on the application for leave to intervene made by the Kingdom of Belgium.
Costs
32 Under Article 87(2) of the Rules of Procedure, 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 applicant has been unsuccessful, it must be ordered to pay the costs incurred by the Commission, in addition to its own costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no need to adjudicate on the application for leave to intervene made by the Kingdom of Belgium.
3. Post Invest Europe Sàrl shall pay the costs.
Luxembourg, 15 May 2013.