Action brought on 2 February 2005 by Union française de l'express (UFEX) and Others against the Commission of the European Communities

(Case T-60/05)

(2005/C 93/71)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 February 2005 by Union française de l'express (UFEX), having its registered office at Roissy Charles de Gaulle (France), DHL International SA, having its registered office at Roissy Charles de Gaulle (France), Federal Express International (France) SNC, having its registered office at Gennevilliers (France), and CRIE, having its registered office at Asnières (France), represented by Eric Morgan de Rivery and Jacques Derenne, lawyers.

The applicants claim that the Court should:

Pleas in law and main arguments

The present application seeks annulment of the decision rejecting the complaint lodged in December 1990 by UFEX, then called SFEI, against la Poste as a result of cross-subsidies allegedly amounting to an abuse of a dominant position to the benefit of Société Française de Messagerie Internationale (SFMI). That decision is the consequence of a request to reopen the procedure before the Commission following annulment by the Community Court of the Commission's decision of 30 December 1994, which rejected the initial complaint. (1)

The main issue raised in the present case is still the same as that which was the subject of the judgments of the Court of Justice and the Court of First Instance cited above, namely whether the defendant complied with its obligations in the context of the examination of the complaint. The applicants submit that, in rejecting the complaint on the ground of an alleged lack of Community interest, the contested decision infringes the legal rules relating to assessment of Community interest, is vitiated by a contradiction in the grounds and contains a number of errors of law, as regards the rejection of that part of the complaint based on Articles 86 EC, 82 EC, 3(g) EC and 10 EC.

Specifically, the applicants claim in particular that the Commission made errors in assessing the elements which necessarily make up the definition of Community interest, since, in order to give reasons for its finding that there is no Community interest, it must assess the seriousness and duration of the infringements alleged in the complaint. Consequently, it is not sufficient to establish whether anti-competitive effects still exist and, in the absence of such effects, that there is no Community interest in continuing the examination of the complaint.

As regards the duration of the infringement, the applicants criticise the fact that the Commission merely examined whether the incidental effects of the alleged infringements still existed (development of market shares, competitors leaving the market, price sensitivity of demand, absence of persistent effects in terms of price, etc), without paying attention to the main effect of a structural nature, namely having placed SFMI-Chronopost in a position of market leader and having maintained it there.

As far as reasoning is concerned, it is pointed out that, in the contested decision, the Commission asserts, on the one hand, that it is perfectly able to check the level to which la Poste covers costs, which in the light of both Article 82 EC and Article 87 EC would be the only calculation making it possible to ascertain the existence of cross-subsidies, and, on the other hand, that the reason for not checking the level to which la Poste covers costs in the light of Article 82 EC is that this would have amounted to a duplication of the work which it is required to undertake itself for the State aid part of the complaint.

The applicants also contest the Commission's assertion that the benefits granted to Chronopost in terms of customs clearance and franking come within the scope of the action of the French State in the field of its public authority and do not fall within the scope of Article 82 EC in conjunction with Article 86 EC.

(1)  Case C-119/97 P UFEX and Others v Commission [1999] ECR I-1341, and Case T-77/95 REV UFEX and Others v Commission [2000] ECR II-2167.