Action brought on 30 March 2012 - Germany v Commission

(Case T-143/12)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: T. Henze, K. Petersen and U. Soltész, lawyer)

Defendant: European Commission

Form of order sought

Annul Article 1 of Commission Decision C(2012) 184 final of 25 January 2012 on Measure No C 36/2007 (ex NN 25/2007) implemented by Germany for Deutsche Post AG;

annul Articles 4 to 6 of Commission Decision C(2012) 184 final of 25 January 2012 on Measure No C 36/2007 (ex NN 25/2007) implemented by Germany for Deutsche Post AG;

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on 10 pleas in law.

First plea in law, alleging infringement of Article 107(1) TFEU in so far as the 'pension subsidy' was found to have benefited an undertaking

The 'pension subsidy' is granted directly to the Postbeamtenversorgungskasse (PBVK) (civil servants' pension fund) and indirectly to retired civil servants, and is thus not granted to any undertaking. Nor has there been any indirect aid for Deutsche Post AG (DPAG).

Second plea in law, alleging infringement of Article 107(1) TFEU in so far as the 'pension subsidy' was found to have compensated costs 'normally' borne by undertakings

The 'pension subsidy' fully finances excess social costs which would not 'normally' be borne by undertakings. Furthermore, the costs compensated by means of the 'pension subsidy' constitute a 'special charge' for the purposes of Combus. ²

Third plea in law, alleging infringement of Article 107(1) TFEU (alternatively of Article 107(3) TFEU) in so far as price-regulated revenues were taken into account

The 'comparative advantage' does not arise from the 'pension subsidy' and is entirely independent of it. The 'comparative advantage' arises from regulated prices and thus from non-State resources (PreussenElektra ⁴). There is no double compensation of costs. No 'aid' is thus being declared incompatible with the internal market and reclaimed. The 'aid' merely provides an opportunity retroactively to skim off DPAG's revenues.

Fourth plea in law, alleging infringement of Articles 107 TFEU and 108 TFEU and Regulation (EC) No 659/1999  by the unlawful skimming-off of price-regulated revenues in State aid proceedings - misuse of powers/abuse of process

The Commission can lawfully recover revenues in that form only in the context of Regulation (EC) No 1/2003,  not in State aid proceedings.

Fifth plea in law, alleging infringement of Articles 107 TFEU and 108 TFEU and Regulation No 659/1999 by the unlawful pursuit of 'cross-subsidisation' in State aid proceedings - misuse of powers /abuse of process

Any 'cross-subsidisation' arises from regulated prices, from non-State resources and not, therefore, from aid. Such 'cross-subsidisation' cannot be pursued in State aid proceedings either.

Sixth plea in law, alleging infringement of Article 107(1) TFEU (alternatively of Article 107(3) TFEU) as a result of erroneous calculations in respect of compensation of social costs

The benchmark adopted by the Commission, which takes into account the employee's share, is erroneously excessive since, under German social insurance law, an employer bears only the employer's share. As the employee's share has already been taken into account by the Commission in relation to the wage base ('notional gross wage'), the fact that it is taken into account again in the benchmark means that it is counted twice. The increase in the wage base is also misconceived, as civil servants' salaries were higher than wages paid by private competitors.

Seventh plea in law, alleging infringement of Article 107(1) TFEU (alternatively of Article 107(3) TFEU) in so far as the 'pension subsidy' was found to constitute aid (incompatible with the internal market) in respect of the period from 1995 to 2002 also

Eighth plea in law, alleging infringement of Article 108(1) TFEU and Article 1(b)(i) of Regulation No 659/1999 in so far as the pension subsidy was found to constitute new aid

The Commission's findings are based on an inadequate assessment of the facts.

Ninth plea in law, alleging infringement of Article 14(1) and Article 7(5) of Regulation No 659/1999 in so far as the order for recovery and the obligation to desist contained in Article 4(1) and Article 4(4) respectively are contrary to the law on State aid

Recovery under Article 4(1) relates not to 'aid' but to DPAG's revenues from regulated stamp prices. Compliance with the order no longer to benefit cannot be achieved by means of a reduction in 'aid'. A reduction in the 'pension subsidy' would have no effect on the size of the 'comparative advantage'. To cease to benefit in accordance with Article 4(4) would require the amendment of price regulation, and thus encroaches upon the applicant's regulatory sovereignty.

Tenth plea in law, alleging infringement of Article 6 TEU, Article 41 of the Charter of Fundamental Rights of the European Union, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the principle of good administration and Article 10(1) of Regulation No 659/1999, on account of the unreasonable length of the proceedings and inactivity on the part of the Commission

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¹ - Case T-157/01 Danske Busvognmænd v Commission [2004] ECR II-917.

² - Case C-379/98 PreussenElektra [2001] ECR I-2099.

³ - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

⁴ - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).