Action brought on 4 April 2012 - Deutsche Post v Commission

(Case T-152/12)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J. Sedemund, T. Lübbig and M. Klasse, lawyers)

Defendant: European Commission

Forms of order sought

The applicant claims that the General Court should:

annul Articles 1 and 2, as well as Articles 4 to 6, of the Decision of the European Commission of 25 January 2012 on Measure C 36/2007 (ex NN 25/2007) granted by Germany in favour of Deutsche Post AG (Commission Document No C(2012) 184 final);

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant raises a total of 13 pleas in law in support of its action:

A.    The applicant raises 10 pleas in law in support of its action for annulment of Article 1 and Articles 4 to 6 of the Commission Decision of 25 January 2012:

First plea in law:     Breach of Article 107(1) TFEU

by reason of the incorrect classification, at variance with the 'Combus' case-law of the Court, ² of the partial financing by the State of outstanding pension commitments of a former State-owned enterprise as an element constituting aid;

Second plea in law:    Breach of Article 108(1) TFEU and of Article 1(b)(i) of Regulation (EC) No 659/1999 ⁴

by reason of the incorrect classification of the partial financing by the State of outstanding pension commitments as 'new' aid;

Third plea in law:    Breach of Article 107(1) TFEU

by reason of the improper treatment of the regulated charges as an element constituting aid, contrary to the 'PreussenElektra' case-law of the Court of Justice,  and of the objection of a mere (allegedly) inappropriate allocation of costs between two product groups as an element constituting aid;

Fourth plea in law:    Errors of competence and assessment, in addition to infringement of the principle of non-discrimination and of the duty of genuine cooperation with Member States

by reason of the retrospective infringement of the national regulation of charges, despite a long-standing knowledge of that regulation and contrary to the Commission's entire decision-making practice to date;

Fifth plea in law:    Breach of Article 107(1) and (3) TFEU

by reason of the incorrect fixing of the social security contributions to be borne by private competitors ('benchmark'), as well as by reason of a fictitious increase in the actual gross earnings of officials as the calculation basis for the application of the 'benchmark';

Sixth plea in law:    Failure to state adequate grounds pursuant to Article 296 TFEU

by reason of the fact that the extremely extensive content of the contested decision is in part unclear, contradictory or incomprehensible and fails to indicate clearly the connection between the individual parts;

Seventh plea in law:    Infringement of the principle of legality and Article 107(1) TFEU

due to the contradictory description of the basis for the calculation of the amount to be paid back and the fact that it is not identifiable;

Eighth plea in law:    Infringement of the right to 'have affairs handled within a reasonable time' as an aspect of the right to 'good administration' under Article 41 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights) and Article 10(1) of Regulation No 659/1999

by reason of the fact that the proceedings lasted more than 12 years from the opening decision of 1999 up to the contested decision of 25 January 2012;

Ninth plea in law:    Infringement of the right to 'good administration' resulting from Article 41(1) of the Charter of Fundamental Rights, as well as breach of Article 15 of Regulation No 659/1999

by reason of the complete failure to act in relation to the regulation of charges under Paragraph 20(2) of the German Postgesetz, of which the Commission was aware since 1999 at the latest, but which was made the subject-matter of the proceedings only after more than 11 years by the extension decision of 10 May 2011;

Tenth plea in law:    Infringement of the principles of legal certainty, protection of legitimate expectations and sound administration, which are protected as fundamental rights, as well as breach of Article 7(1) of Regulation No 659/1999

by reason of the failure to recognise the conclusive nature of the decision of 2002, which, according to the Commission, contrary to the imperative duty arising out of Article 7(1) of Regulation No 659/1999, did not 'conclusively' regulate the State measures which were the subject-matter of the proceedings and to which the pension costs also belonged.

B.    The applicant raises three further pleas in law in support of its action for annulment of Article 2 of the Commission Decision of 25 January 2012:

Eleventh plea in law:     Infringement of the principles of 'sound administration' and a 'reasonable duration' of proceedings

by reason of an unlawful failure to examine the existence of 'over-compensation' by the 'financial compensation' since 1999, as the Court has already determined in its judgment in Case T-266/02 Deutsche Post v Commission [2008] ECR II-1233;

Twelfth plea in law:     Breach of Article 106(2) TFEU

by the provision of inadequate reasoning for the fact that the fourth criterion of the 'Altmark'  judgment was not satisfied in the present case;

Thirteenth plea in law:     Incorrect application of the aid element in Article 107(1) TFEU

by reason of the fact that the 'financial compensation' fulfils the conditions governing a finding that there is a service of general economic interest within the terms of Article 106(2) TFEU.

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

² - 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).

³ - Judgment in Case C-379/98 PreussenElektra [2001] ECR I-2099.

⁴ - Judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747.