Case T‑421/07 RENV

Deutsche Post AG

v

European Commission

(State aid — Postal delivery — Measures taken by the German authorities in favour of Deutsche Post AG — Decision to initiate the procedure laid down in Article 88(2) EC — Interest in bringing proceedings — Re-opening of a closed procedure — Effects of a judgment annulling a measure)

Summary — Judgment of the General Court (First Chamber), 18 September 2015

1.      Appeal — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it

2.      Acts of the institutions — Withdrawal — Unlawful acts — Decision of the Commission to close a formal investigation procedure — Conditions — Compliance with duty to act within a reasonable time and with the principle of the protection of legitimate expectations — Possibility of withdrawal not limited only to the situation referred to in Article 9 of Regulation No 659/1999

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 9)

3.      State aid — Decision of the Commission to reopen a closed formal investigation procedure — No revocation or withdrawal of the closure decision — Inadmissibility

(Art. 88(2) EC; Council Regulation No 659/1999)

4.      State aid — Decision of the Commission to reopen a closed formal investigation procedure — Assessment of legality by reference to the information available at the time the decision was adopted  — Retrospective considerations — Irrelevant

(Art. 88(2) EC)

1.      See the text of the decision.

(see paras 29, 33-35)

2.      See the text of the decision.

(see paras 45-47)

3.      No provision of Regulation No 659/1999, laying down detailed rules for the application of Article 93 of the EC Treaty, allows the Commission to re-open a formal investigation procedure that has been closed or to adopt a new decision without first revoking or withdrawing the closure decision.

Admittedly, Regulation No 659/1999 does not expressly prohibit such a re-opening of the procedure. Nevertheless, that would be contrary to the principle of legal certainty and contrary to the spirit of that regulation, recital 3 of which makes clear that the need to increase legal certainty was one of the reasons for its adoption, and recital 9 of which indicates that formal investigation procedures are brought to a close by a ‘final’ decision.

First, such a re-opening of the procedure would imply the coexistence in the legal order of two incompatible decisions. Moreover, to allow the Commission to re-open a formal investigation procedure that has been closed and to adopt a new decision without first revoking or withdrawing the closure decision would enable the Commission to go back on its decisions at any time and would therefore deprive the parties concerned by an investigation procedure that has been closed of all legal certainty regarding their legal position.

Consequently, the annulment of a decision closing a formal investigation procedure by the EU judicature must be regarded, in the absence of any withdrawal or revocation of that decision, as a necessary and formal pre-condition of the re-opening of that procedure. Otherwise, the parties concerned by the formal investigation procedure would be placed in a position of uncertainty regarding the nature of the decision re-opening the procedure which would be incompatible with the need to increase legal certainty, which was one of the reasons for the adoption of Regulation No 659/1999.

(see paras 50-52, 62)

4.      See the text of the decision.

(see para. 55)