Case T-421/07

Deutsche Post AG

v

European Commission

(State aid – Measures taken by the German authorities in favour of Deutsche Post AG – Decision to initiate the procedure laid down in Article 88(2) EC – No prior definitive decision – Inadmissibility)

Summary of the Judgment

Actions for annulment – Actionable measures – Measures producing legal effects – Commission decision to initiate a formal investigation procedure on a State measure in the course of implementation accompanied by provisional classification as new aid – Actionable measure – Commission decision to initiate a formal investigation procedure on the same measures as those having formed the subject-matter of an earlier decision to initiate the procedure – Inadmissibility where the first procedure not concluded

(Arts 87(1) EC, 88(2) and (3) EC and 230 EC; Council Regulation No 659/1999, Art. 7)

Only a measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision against which an action for annulment may be brought under Article 230 EC. That is the case of a decision to initiate the formal investigation procedure into State aid, where the Commission classifies a measure in the course of implementation as new State aid, both when the authorities of the Member State concerned consider that it is existing aid and when they dispute that it falls within the scope of Article 87(1) EC.

A decision to initiate the formal investigation procedure in relation to a measure in the course of implementation and classified by the Commission as new aid necessarily alters the legal implications of the measure under consideration and the legal position of the recipient firms, particularly as regards the continued implementation of that measure. Such a decision might also be invoked before a national court called upon to draw all the consequences arising from infringement of the last sentence of Article 88(3) EC. Finally, it is capable of leading the firms which are beneficiaries of the measure to refuse in any event new payments or new advantages or to hold the necessary sums as provision for possible subsequent financial compensations. Businesses will also take account, in their relations with those beneficiaries, of the uncertainty cast on the legal and financial situation of the latter.

In contrast, such a decision is not capable of giving rise to independent legal effects and cannot therefore constitute a decision against which an action for annulment may be brought since it concerns the same measures as those which formed the subject-matter of the earlier decision to initiate the procedure, in so far as the formal investigation procedure for those measures is not terminated, and that, in the context of that procedure, the Commission had already stated that the disputed measures could fall within the scope of the prohibition of Article 87(1) EC.

In such a case, the independent legal effects attached to a formal investigation procedure were already produced following the first decision to initiate the procedure.

(see paras 49-51, 61, 63)