Notice for the OJ

 

Action brought on 5 December 2002 by Deutsche Post AG and DHL International S.r.l. against the Commission of the European Communities

    (Case T-358/02)

    Language of the Case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 December 2002 by Deutsche Post AG, established in Bonn (Germany), and DHL International S.r.l., established in Rozzano (Italy), represented by J. Sedemund and T. Lübbig, lawyers.

The applicants claim that the Court should:

(annul Commission Decision 2002/782/EC of 12 March 2002 on the aid granted by Italy to Poste Italiane SpA; ¹

(order the defendant to pay the costs.

Pleas in law and main arguments

In the applicants' submission, it is apparent from the contested decision that Poste Italiane SpA was continuously in deficit in the postal services sector from 1994 to 1999 and that it received State resources which served to offset the deficits. In Article 2 of the decision, the Commission decided that that State subsidy to Poste Italiane SpA did not constitute State aid under Article 87(1) EC.

The applicants submit that, so far as concerns the offsetting of losses of those postal services which, although forming part of the universal service, have been opened up to competition, the decision is incompatible with Article 87(1) EC as interpreted in the Commission decision of 19 June 2002. ² By that decision the Commission established that the use of State resources to offset losses recorded by a postal undertaking in the sector of postal services that form part of the universal service but are opened up to competition infringes Article 87(1) of the Treaty as a cross-subsidy not capable of being approved where the losses are caused by rates of charges which do not cover costs and which the postal undertaking is not required to apply by a State measure.

The applicants contend that the decision is all the less compatible with Article 87(1) EC in so far as it relates to loss-making postal services which do not form part of the universal service and have been opened up to competition for a long time. Since the Italian postal operator has been recording only losses for 50 years and those losses can therefore only have been covered by State resources, the Commission should not have "neglected" the offsetting in respect of those postal services from State resources but would have been obliged in that respect too to examine whether there was a cross-subsidy incompatible with Article 87(1) EC.

The applicants further submit that no reason is stated as to why the Commission in the contested decision, in contrast to its decision of 19 June 2002, recognised the cross-subsidy as involving a net extra cost which could be offset in the "general economic interest". At the same time, therefore, there is an infringement of the duty to state reasons under Article 253 EC.

Finally, the decision infringes the general prohibition of discrimination under Article 12 EC, since the Commission has accorded the Italian postal operator preferential treatment vis-à-vis the applicants, which are in competition with it in the very sector of postal services which have been opened up to competition.

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¹ - (OJ No L 282, 19.10.2002, p. 29.

² - (Commission Decision on measures implemented by the Federal Republic of Germany for Deutsche Post AG (OJ No L 247, 14.9.2002, p. 27).