ORDER OF THE GENERAL COURT (Sixth Chamber)
4 May 2012 (*)
(State aid – Absence of a decision to close the procedure provided for by Article 88(2) EC – Action for failure to act – Locus standi – Admissibility)
In Case T‑344/10,
UPS Europe NV/SA, established in Brussels (Belgium),
United Parcel Service Deutschland Inc. & Co. OHG, established in Neuss (Germany),
represented by T. Ottervanger and E. Henny, lawyers,
applicants,
v
European Commission, represented by L. Flynn and D. Grespan, acting as Agents,
defendant,
supported by
Deutsche Post AG, represented by J. Sedemund, T. Lübbig and M. Klasse, lawyers,
intervener,
ACTION for failure to act, seeking a declaration that the Commission unlawfully failed to take a decision, within a reasonable period, in the procedure provided for in Article 88(2) EC, initiated on 12 September 2007, concerning the State aid granted by the German authorities to Deutsche Post AG (aid C 36/07 (ex NN 25/07),
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen (Rapporteur), President, N. Wahl and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, UPS Europe NV/SA and United Parcel Service Deutschland Inc. & Co. OHG, are two parcel delivery companies.
2 On 7 July 1994, UPS Europe brought a complaint (‘the 1994 complaint’) before the European Commission concerning State aid allegedly granted by the Federal Republic of Germany to the company which had taken over the activities of the former German postal administration in the postal sector, Deutsche Bundespost Postdienst (‘DB-Postdienst’).
3 Following notification received by the Commission on 11 May 1998, in accordance with Article 4 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), concerning a proposed concentration by which the successor to DB-Postdienst, Deutsche Post AG, intended to acquire, within the meaning of Article 3(1)(b) of that regulation, joint control of DHL International Ltd, UPS Europe sent, on 8 June 1998, a second complaint to the Commission against the Federal Republic of Germany and Deutsche Post relating to alleged infringements of Articles 81 EC, 82 EC and 87 EC (‘the 1998 complaint’). UPS Europe submitted, inter alia, that the proposed acquisition constituted State aid because of the use of profits derived from an exclusive right accorded to Deutsche Post solely in order to guarantee the performance of a service of general economic interest (‘SGEI’).
4 By letter dated 17 August 1999, published in the Official Journal of the European Communities on 23 October 1999 (OJ 1999 C 306, p. 25) (‘the 1999 decision to initiate the procedure’), the Commission informed the Federal Republic of Germany of its decision to initiate the formal investigation procedure laid down in Article 88(2) EC (‘the formal investigation procedure’) with regard to a number of measures under which DB-Postdienst and Deutsche Post had received public funds, and asked it to provide information.
5 On 11 October 2001, UPS Europe brought an action before the Court, under Article 232 EC, by which it sought a declaration that the Commission had failed to act by reason of its failure to rule on the 1994 and 1998 complaints and to close the formal investigation procedure initiated by the 1999 decision to initiate the procedure (Case T-253/01 UPS Europe v Commission).
6 On 19 June 2002, the Commission adopted Decision 2002/753/EC on measures implemented by the Federal Republic of Germany for Deutsche Post AG (OJ 2002 L 247, p. 27) (‘the 2002 decision’). In that decision, the Commission found that losses to a total value of EUR 572 million incurred by DB-Postdienst and, subsequently, by Deutsche Post, in their door-to-door parcel delivery activities, had been offset by State resources granted in various forms. The Commission found that the coverage of the losses at issue by means of State resources constituted State aid contrary to Articles 86 EC and 87 EC and ordered the Federal Republic of Germany to recover the EUR 572 million in question.
7 By its judgment of 1 July 2008 in Case T-266/02 Deutsche Post v Commission [2008] ECR II‑1233, the Court annulled the 2002 decision. The appeal brought by the Commission against that judgment was dismissed by the judgment of 2 September 2010 of the Court of Justice in Case C‑399/08 P Commission v Deutsche Post [2010] ECR I-0000.
8 Following the adoption of the 2002 decision, the Court requested the parties in Case T-253/01 UPS Europe v Commission, within the framework of measures of organisation of procedure, to give their views on the possible effect of the 2002 decision on that case.
9 By letter of 14 November 2002, UPS Europe stated that it was prepared to discontinue its action in Case T-253/01 UPS Europe v Commission. However, it asked the Court to order the Commission to pay the costs. By order of the Court of 30 April 2003 in Case T-253/01 UPS Europe v Commission, not published in the ECR, the case was removed from the register and the Commission was ordered to pay the costs.
10 On 11 May 2004, UPS Europe lodged a new complaint with the Commission in which it claimed that the 2002 decision had not examined all of the public measures mentioned in the 1994 complaint and that the advantages which DB-Postdienst and Deutsche Post had received exceeded to a large extent the amount which the Commission had ordered to be recovered. UPS Europe also claimed that Deutsche Post used State resources to expand its parcel operations and to charge its subsidiaries excessively low prices for the services which it was providing to them. In turn, on 16 July 2004, TNT Post AG & Co. KG lodged a complaint alleging that the tariffs for the services invoiced by Deutsche Post to one of its subsidiaries were excessively low and that those services were being financed by means of income from the letter services sector in which Deutsche Post had a legal monopoly. Following those complaints, the Commission sent requests for information to the Federal Republic of Germany, to which the latter replied.
11 On 3 September 2007, the applicants brought an action before the General Court, under Article 232 EC, seeking a declaration that the Commission had failed to act by not adopting a decision on the complaint lodged on 11 May 2004 (Case T‑329/07 UPS Europe and UPS Deutschland v Commission).
12 On 12 September 2007, the Commission adopted the decision to request the Federal Republic of Germany to submit its comments pursuant to Article 88(2) EC in respect of the State aid granted by the German authorities to Deutsche Post AG (aid C 36/07 (ex NN 25/07)) (‘the 2007 decision’).
13 By letter lodged at the Registry of the General Court on 8 November 2007, the applicants withdrew their action in Case T‑329/07. By order of the General Court of 11 December 2007 in Case T‑329/07 UPS Europe and UPS Deutschland v Commission, not published in the ECR, that case was removed from the register.
14 The 2007 decision is divided into several sections.
15 In the first section, the Commission recalled the procedures initiated against Deutsche Post following the 1994 complaint. It referred to the need to carry out a comprehensive investigation into all of the distortions of competition which resulted from the public funds granted to DB-Postdienst and Deutsche Post and stated that the procedure set in motion by the 1999 decision to initiate the procedure would be supplemented in order to incorporate the newly submitted information and to adopt a definitive position on the compatibility of those funds with the EC Treaty (recitals 1 to 15 of the 2007 decision).
16 The Commission noted that the ‘supplementary investigation’ which it intended to carry out ‘w[ould] by no means substitute the 2002 [d]ecision’. The Commission explained that it intended to determine whether there had been overcompensation through public funds of the costs borne by DB-Postdienst and Deutsche Post for providing SGEIs, beyond the EUR 572 million referred to in the 2002 decision, and announced that it would investigate all public measures granted in favour of those undertakings from 1 July 1989, the date on which DB-Postdienst was set up, to 31 December 2007, which was the envisaged termination date of Deutsche Post’s mandate for providing SGEIs (recital 15 of the 2007 decision).
17 In the third section of the 2007 decision, entitled ‘Description of public measures in favour of [DB-]Postdienst and [Deutsche Post]’, the Commission stated, in essence, firstly, that those undertakings had benefited from transfer payments made by the State company Deutsche Bundespost Telekom (‘DB-Telekom’) as well as from certain State guarantees on their debts. Secondly, the Commission examined whether there had been public financing of the pensions of certain employees of those undertakings (recitals 25 to 32 and 39 to 48 of the 2007 decision).
18 In the sixth section of the 2007 decision, entitled ‘Assessment of the existence of aid’, firstly, the Commission stated that any selective advantage granted to DB-Postdienst and Deutsche Post would distort competition and would affect trade between Member States. Secondly, it observed that the transfer payments made by DB-Telekom and the State guarantees referred to in the preceding paragraph constituted State aid within the meaning of Article 87(1) EC. Thirdly, it noted that the public financing of the pensions of certain employees of DB-Postdienst and Deutsche Post constituted a transfer of public resources and stated that it intended to investigate to what extent that financing had conferred an advantage on those undertakings (recitals 72 to 78 of the 2007 decision).
19 In the seventh section of the 2007 decision, entitled ‘Assessment of compatibility of aid’, the Commission set out the method of calculation which it intended to use in order to investigate whether the compensation granted to DB-Postdienst and Deutsche Post was necessary to ensure the fulfilment of their SGEI obligations (recitals 80, 81, and 84 to 104 of the 2007 decision).
20 In the eighth section of the 2007 decision, entitled ‘Decision’, the Commission requested the Federal Republic of Germany to submit its comments on the measures referred to in that decision and to provide all necessary information for the legal assessment of those measures in the light of the provisions on State aid.
21 On 16 November 2007, the applicants and TNT Post submitted to the Commission their comments on the measures examined in the 2007 decision (‘the disputed measures’). On 14 December 2007, the Federal Republic of Germany submitted its comments on those measures to the Commission.
22 On 22 November 2007, Deutsche Post brought an action before the Court, under Article 230 EC, against the 2007 decision (Case T‑421/07 Deutsche Post v Commission). That action was dismissed as inadmissible by judgment of 8 December 2011 in Case T‑421/07 Deutsche Post v Commission [2011] ECR II‑0000.
23 By letter of 28 April 2010, the applicants formally requested the Commission to close the formal investigation procedure initiated in regard to the disputed measures. The applicants stated that they would bring proceedings under Article 265 TFEU if the Commission did not inform them of its position in that regard within two months.
Procedure and forms of order sought
24 The applicants brought the present action by application lodged at the Registry of the General Court on 20 August 2010.
25 By letter lodged at the Registry of the Court on 3 December 2010, Deutsche Post requested leave to intervene in support of the form of order sought by the Commission.
26 By order of 24 January 2011 the President of the Eighth Chamber of the General Court granted Deutsche Post’s application for leave to intervene. Deutsche Post did not lodge a statement in intervention.
27 Following a change in the composition of the chambers of the General Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case has thus been allocated.
28 The applicants claim that the Court should:
– declare, in accordance with Article 265 TFEU, that the Commission unlawfully failed to act by not defining its position in case NN 25/2007, Germany-Deutsche Post, in order to close the formal investigation procedure;
– order the Commission to pay the costs.
29 The Commission contends that the Court should:
– dismiss the action as inadmissible or unfounded;
– order the applicants to pay the costs.
Admissibility
30 In their action, the applicants submit that the Commission failed to fulfil its obligation to close, by means of a decision pursuant to Articles 7 and 13 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1), the formal investigation procedure initiated by the 2007 decision. The applicants seek a declaration from the Court of that failure to act.
31 Under Article 113 of the Rules of Procedure of the General Court, the latter may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action, which includes the conditions for admissibility of an action (see, to that effect, order in Case C‑341/00 P Conseil national des professions de l’automobile and Others v Commission [2001] ECR I‑5263, paragraph 32, and Case T‑88/01 Sniace v Commission [2005] ECR II‑1165, paragraph 53). Under Article 114(3) of the Rules of Procedure, the remainder of the proceedings are to be oral unless the Court decides otherwise.
32 In the present case, without pleading that the action is inadmissible by way of a separate document, the Commission has put forward arguments to that effect in the defence, to which the applicants replied, and in the rejoinder. Deutsche Post had the opportunity to submit its observations on the admissibility of the action in a statement in intervention, but it did not lodge such a statement within the prescribed period.
33 That being so, the Court considers that it has sufficient information and has decided, pursuant to Article 114(3) of the Rules of Procedure, to give a decision on the action without opening the oral procedure.
34 According to settled case-law, Articles 263 TFEU and 265 TFEU merely prescribe one and the same method of recourse. It follows that, just as the fourth paragraph of Article 263 TFEU allows individuals to bring an action for annulment against a measure of an institution which is not addressed to them, provided that the measure is of direct and individual concern to them, the third paragraph of Article 265 TFEU must be interpreted as also entitling them to bring an action for failure to act against an institution which they claim has failed to adopt a measure which would have concerned them in the same way (Case C‑68/95 T. Port [1996] ECR I‑6065, paragraph 59, and, so far as State aid is concerned, order of 1 October 2004 in Case C‑379/03 P Pérez Escolar v Commission, not published in the ECR, paragraph 15).
35 As the measure which the Commission allegedly failed to adopt, namely a decision bringing to an end the formal investigation procedure initiated with regard to the disputed measures, would not have been addressed to the applicants, that decision must therefore, as the Commission correctly states, be of direct and individual concern to them in order for them to be able to bring the present action for failure to act (see, to that effect, order in Pérez Escolar v Commission, paragraph 34 above, paragraph 17).
36 Consequently, it is necessary to reject the applicants’ argument that the criterion of individual concern is not applicable in the present case, since their position should not be confused with that of applicants who challenge the merits of a final decision.
37 That conclusion cannot be invalidated by any of the arguments put forward by the applicants.
38 In that regard, the applicants submit that, by bringing the present action, they are seeking only to safeguard their procedural rights. They maintain that they should be able to bring the present action for failure to act, even if they were not individually concerned by the decision which the Commission failed to adopt, in order to maintain the effectiveness of their right to challenge a decision by which the Commission approves the disputed measures without initiating the formal investigation procedure.
39 Furthermore, the applicants submit that allowing complainants to challenge inaction on the part of the Commission is necessary to uphold the requirements of the principles of sound administration, of legal certainty and of the right to an effective judicial remedy, in order to prevent the Commission from avoiding all judicial review.
40 Those general claims cannot, however, have the effect of setting aside a condition based on the fourth paragraph of Article 263 TFEU and on Article 265 TFEU. The applicants do not put forward any specific argument to claim that the condition relating to individual concern constitutes an infringement of the right to an effective judicial remedy.
41 In the light of the foregoing, it is next necessary to examine whether the decision to close the formal investigation procedure, which, according to the applicants, the Commission unlawfully failed to adopt, would have been of individual concern to them.
42 According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraph 22; and Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, paragraph 33).
43 With more particular regard to the field of State aid, as the Commission correctly points out, an applicant who challenges the merits of a decision appraising aid taken at the end of the formal investigation procedure, such as that which, according to the applicants, the Commission unlawfully failed to adopt in the present case, will be considered to be individually concerned by that decision if its market position is substantially affected by the aid to which the contested decision relates (Case C‑260/05 P Sniace v Commission [2007] ECR I‑10005, paragraph 54).
44 It is clear from the case-law that, even where an applicant has actively participated in the administrative procedure, it must, on any view of the matter, in order to establish its locus standi, demonstrate that the measures constituting the subject-matter of that procedure were likely substantially to affect its position on the market (Sniace v Commission, paragraph 43 above, paragraph 60, and judgment of 12 December 2006 in Case T‑146/03 Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, not published in the ECR, paragraphs 47, 48 and 50).
45 It is therefore necessary to reject the applicants’ argument that, having lodged two complaints on which the formal investigation procedure of the disputed measures was based, and having brought several actions for failure to act in relation to the examination of those measures and participated actively in the administrative procedure, they have a ‘special status’ with regard to those measures for the purposes of the case-law referred to in paragraph 42 above, irrespective of whether their market position was substantially affected.
46 Consequently, it is necessary to examine whether the applicants have established that their market position is substantially affected by the disputed measures.
47 With regard to the determination of a ‘significant effect on the position’ of an undertaking on the market in question, the Court of Justice has had occasion to clarify that the mere fact that a measure may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as being individually concerned by that measure (Case C‑487/06 P British Aggregates Association v Commission [2008] ECR I‑10515, paragraph 47 and the case-law cited).
48 An undertaking cannot therefore rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show that its circumstances distinguish it in a similar way to the undertaking in receipt of the aid (British Aggregates Association v Commission, paragraph 47 above, paragraph 48 and the case-law cited).
49 A significant effect on the market position of an undertaking need not necessarily be inferred from factors such as a marked decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can have an adverse effect on the competitive situation of an operator in other ways too, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid. Similarly, the seriousness of such an effect may vary according to a large number of factors such as, in particular, the structure of the market concerned or the nature of the aid in question. Demonstrating a substantial adverse effect on a competitor’s position on the market cannot, therefore, simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance (British Aggregates Association v Commission, paragraph 47 above, paragraph 53 and the case-law cited).
50 Lastly, as the applicants submit, if a significant effect on the market position of an applicant is established, the fact that an undefined number of other competitors may, in appropriate circumstances, allege that they have suffered similar harm does not constitute an obstacle to the admissibility of the action brought by that applicant (British Aggregates Association v Commission, paragraph 47 above, paragraphs 55 and 56).
51 The applicants have put forward two arguments to establish that their position on the market for commercial parcel services, on which it is common ground between the parties that Deutsche Post and the applicants are competing providers, is substantially affected by the disputed measures.
52 In the first place, the applicants have submitted, in essence, that they are the main direct competitors of Deutsche Post on that market.
53 First of all, it must be stated that that claim is not substantiated by any specific fact put forward by the applicants.
54 Secondly, it must be pointed out that the Commission, in the 2007 decision, indicated that the European markets for parcel services are characterised by intense competition between Deutsche Post and other providers such as the applicants, TNT Post, La Poste and Royal Mail, but did not state that the applicants are the main direct competitors of Deutsche Post (recital 71 in the 2007 decision). As the Commission correctly states, the applicants themselves pointed out, in a letter sent to the Commission on 16 November 2007 in connection with the procedure relating to the formal investigation of the disputed measures which they annexed to the application, that, according to an expert’s report which they had requested, one of those undertakings, namely TNT Post, was the main comparator company to Deutsche Post.
55 Lastly, in any event, even if the applicants’ claim were proved, it would not suffice to establish that their market position is significantly affected. The Court of Justice has held that an applicant cannot, in that regard, rely solely on its status as a competitor of the aid recipient but must additionally show that its circumstances distinguish it in a similar way to the recipient of the aid, even though the applicant in question stated, like the applicants in the present case, that it had a special competitive relationship with the recipient (order of 21 February 2006 in Case C‑367/04 P Deutsche Post and DHL Express v Commission, not published in the ECR, paragraphs 36 and 41). In order to show that its circumstances distinguish it in that way, the applicant must show that the adverse effect on its market position is significant (see order of 21 January 2011 in Case T‑54/07 Vtesse Networks v Commission, not published in the ECR, paragraph 95 and the case-law cited).
56 Consequently, the claim that the applicants are the main direct competitors of Deutsche Post is not sufficient to demonstrate that their market position is significantly affected by the disputed measures.
57 In the second place, the applicants submit that, by reason of those measures, Deutsche Post could have received aid amounting in total to more than EUR 33 billion, which necessarily has an impact on their position, as direct competitors, on the market for commercial parcel services.
58 In that regard, it must be stated that the existence of a substantial effect on the position of an applicant on the market does not depend directly on the amount of the aid, but on the significance of the adverse effect which that aid may have on that position, which may vary, in respect of aid of a similar amount, in the light of criteria such as the size of the market concerned; the specific nature of the aid; the length of the period for which it was granted; whether the activity affected is the applicant’s main or ancillary activity; and the possibilities which the applicant has to circumvent the negative effects of the aid.
59 According to the case-law, the mere fact that the aid in question may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned is in a competitive relationship with the addressee does not constitute a significant effect on the position of an applicant on the market even in situations in which the amount of the aid examined was very high (see, as regards aid of EUR 9.28 billion to the company Poste Italiane, order in Case T‑358/02 Deutsche Post and DHL v Commission [2004] ECR II‑1565, paragraphs 37 and 38, upheld by the order in Deutsche Post and DHL Express v Commission, paragraph 55 above).
60 Consequently, although demonstrating that effect cannot simply be a matter, as the applicants correctly submit, of the existence of certain factors indicating a decline in their commercial or financial performance, the fact nevertheless remains that the applicants must adduce evidence to show, inter alia, the distinctiveness of the competitive situation of the market in question, the significance of the distortion created by the grant of the disputed measures and the effect of those measures on the prices applied (order of 9 December 2009 in Case T‑481/07 Deltalinqs and SVZ v Commission, not published in the ECR, paragraph 49).
61 As the Commission rightly states, however, the applicants have not provided the Court with any information to facilitate an examination of the significance of any adverse effect on their market position that the disputed measures may have caused.
62 Contrary to what the applicants maintain, the fact that the Commission might be familiar with the structure of the market in question by reason of the decisions which it has taken in the area of merger control does not relieve the applicants of the obligation to provide the Court with such information, since it is the Court, and not the Commission, which must examine whether the disputed measures substantially affect the applicants’ competitive position.
63 Nor does the complexity of the examination of the disputed measures from the perspective of the law on State aid, which, as the applicants state, was conceded by the Commission in its defence, dispense the applicants from the obligation to provide the Court with the information in question. In order to demonstrate that they have locus standi, the applicants are not required to carry out a full legal examination of the disputed measures, to describe them exhaustively or even to explain their effects in detail, but, in accordance with what has been stated in paragraph 60 above, they are required to adduce evidence which makes it possible to examine the competitive situation of the market and the adverse effect which the grant of those measures has allegedly occasioned them.
64 It follows from the foregoing that, in the present case, the applicants have not proved to the required legal standard that the disputed measures were likely to prejudice their legitimate interests by substantially affecting their position on the market. Consequently, they have not shown that the decision to bring to an end the formal investigation procedure in respect of those measures, which decision, they submit, the Commission failed to adopt, would have been of individual concern to them.
65 Contrary to what the applicants maintain, that finding is not called into question by the order in Case T‑253/01 UPS Europe v Commission, paragraph 9 above.
66 It is true that, in that order, the Court ordered the Commission to pay the costs, following the application to that effect made by UPS Europe, although the latter had discontinued an action for failure to act similar to that in the present case. However, it is not apparent from that order that the Court ruled on whether UPS Europe was, first, individually concerned by the decision which, in its view, the Commission had failed to adopt and, secondly, substantially affected by the measures examined by the 2007 decision.
67 Consequently, the action must be dismissed as inadmissible.
Costs
68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
69 Deutsche Post AG shall bear its own costs, pursuant to the third subparagraph of Article 87(4) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. UPS Europe NV/SA and United Parcel Service Deutschland Inc. & Co. OHG shall bear their own costs and pay those incurred by the European Commission.
3. Deutsche Post AG shall bear its own costs.
Luxembourg, 4 May 2012.