Case T‑388/11

Deutsche Post AG

v

European Commission

Judgment of the General Court (First Chamber, Extended Composition), 10 April 2019

(State aid — Postal services — Financing of the additional labour and social costs relating to some of the staff of Deutsche Post by means of subsidies and revenue generated by the remuneration for price-regulated services — Decision to extend the formal investigation procedure — Decision finding that there was new aid at the end of the preliminary investigation phase — Action for annulment — Challengeable act — Interest in bringing proceedings — Admissibility — Consequences of the annulment of the final decision — Obligation to state reasons)

1. Action for annulment — Actionable measures — Measures producing binding legal effects — Decision of the Commission to open a formal investigation procedure into a State measure in the course of implementation accompanied by a provisional classification as new aid — Included

   (Art. 108(2) and (3) and Art. 263 TFEU)

   (see paragraphs 41-46)

2. Action for annulment — Admissibility criteria — Interest in bringing proceedings — To be considered of the Court’s own motion

   (Art. 263 TFEU)

   (see paragraph 47)

3. Action for annulment — Natural or legal persons — Interest in bringing proceedings — Action against a Commission decision to extend the formal investigation procedure into a State measure —Annulment by the EU Court of decisions to initiate and close earlier formal investigation procedures —Risk that the Commission may recover the alleged aid — Interest in bringing proceedings retained

   (Art. 108(3) and Art. 263, fourth para., TFEU)

   (see paragraphs 48-50, 54, 58-62)

4. Action for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope — Adoption of a new measure on the basis of earlier preparatory measures — Lawfulness

   (Art. 266 TFEU)

   (see paragraph 53)

5. Action for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope —Taking into consideration of both the grounds of the judgment and of EU law — Retroactive effect of annulment — Obligation to ensure that the annulled measure is not replaced by a measure affected by the same irregularity

   (Art. 266 TFEU)

   (see paragraphs 55-57)

6. Action for annulment — Grounds — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality

   (Art. 263 and Art. 296(2) TFEU)

   (see paragraph 65)

7. State aid — Decision of the Commission to open a formal investigation procedure into a State measure accompanied by a provisional classification as new aid — Obligation to state reasons — Scope

   (Arts 107(1), 108(2) and 296(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Regulation No 2015/1589, Art. 4(2) and (4))

   (see paragraphs 67-73, 79-84, 88)

Résumé

By the judgment in Deutsche Post v Commission (T‑388/11, EU:T:2019:237), delivered on 10 April 2019, the General Court, sitting in extended composition of five judges, annulled a decision of the European Commission extending a formal investigation procedure, concerning State aid granted to Deutsche Post by way of compensation in respect of its universal service obligations, to the subsidies paid by the German authorities in order to cover the pension costs of employees engaged as officials, on grounds of failure to state reasons.

This case relates to a series of Commission decisions concerning a number of measures in favour of Deutsche Post and successive judgments of the General Court and the Court of Justice annulling those decisions. As a result of its obligations under Article 266 TFEU, the Commission was obliged to take the measures necessary to comply with those judgments, which have acquired the force of res judicata.

Against that background, the General Court found, first, that the Commission still had the option to resume the procedure at the stage at which the contested decision was adopted and that Deutsche Post therefore remained exposed to the risk that the Commission could recover the alleged aid pursuant to that decision. Furthermore, Deutsche Post retained an interest in securing annulment of the contested decision and in that decision being removed from the legal order, since, if the decision was annulled, and in the event that the Commission decided, for the purposes of adopting the measures to implement the annulment judgments, to take a new decision reopening the formal investigation procedure, the Commission would be obliged to ensure that the new decision was not vitiated by the same irregularities as all the decisions that preceded it. Moreover, in the light of the exceptional procedural complexity associated with the existence of several administrative and court decisions concerning the same aid measures, Deutsche Post was subject to singular legal uncertainty that could only be clarified by examination of the substance of this case and the potential annulment of the contested decision, which reinforced its interest in bringing proceedings against that decision.

Given the specific procedural context of the case, that is to say, the intricate links between several formal investigation procedures initiated by the Commission, the General Court found that, at the time it adopted the contested decision, the Commission had a specific obligation to state reasons within the meaning of Article 296(2) TFEU.

The General Court stated that the Commission already had an obligation to state reasons for the existence of a selective economic advantage to Deutsche Post, under Article 107(1) TFEU, when it adopted the decision to initiate the formal investigation procedure, not solely in respect of the decision adopted on completion of that procedure.