Appeal brought on 15 September 2008 (by fax on 12 September 2008) by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Third Chamber, Extended Composition) on 1 July 2008 in Case T-266/02 Deutsche Post AG, supported by the Federal Republic of Germany v Commission of the European Communities, supported by Bundesverband Internationaler Express- und Kurierdienste eV (BIEK) and UPS Europe NV/SA

(Case C-399/08 P)

(2008/C 301/33)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by V. Kreuschitz, J. Flett and B. Martenczuk, acting as Agents)

Other parties to the proceedings: Bundesverband Internationaler Express- und Kurierdienste eV, UPS Europe NV/SA, Deutsche Post AG, Federal Republic of Germany

Form of order sought

Pleas in law and main arguments

The respondent to the appeal is Deutsche Post AG (DPAG), a large undertaking internationally active in the field of postal services, which received substantial compensation payments from State resources. In a separate decision under Article 82 EC from 2002, which has not been contested, the Commission found that DPAG had abused its dominant position in the market by means of prices on the parcels market that did not cover costs. Since DPAG had made losses everywhere in the period in question, that aggressive price policy could only have been financed by the resources the undertaking had received as financial compensation.

The central issue in the present appeal is which method of analysis the Commission was entitled to apply in the particular circumstances of the present case in order to find that there was unlawful aid to DPAG.

According to the method preferred by the Court of First Instance in the judgment under appeal, all the undertaking's costs and receipts in the relevant period in connection with the public interest obligations would have to be examined as to whether the undertaking had received excessive financial compensation from the State. If there were such overcompensation, it could be concluded that those resources had also been used to finance the unfair price policy in the adjacent market of door-to-door parcel services.

According to the method used in the decision, the deficits in the adjacent market caused by the unfair price policy are calculated and it is ascertained whether or not those shortfalls have been compensated with State resources. If such a compensation is found and there is no other source of finance (in the form of the undertaking's own resources), the conclusion is that State resources have been made use of to finance the unfair price policy in the adjacent market of door-to-door parcel services.

The Commission regards the method used in its decision as correct. By means of that method, on the basis of a logical chain of reasoning which includes the assumption that money must after all come from somewhere, the existence of unlawful State aid may be deduced. Neither the chain of reasoning nor the underlying facts are challenged in the judgment under appeal. The Court of First Instance nevertheless takes the view in the judgment under appeal, without further explanation, that only the former method is possible.

The Commission puts forward the following grounds of appeal. There is an infringement of Articles 87(1) EC and 86(2) EC, in so far as those provisions were incorrectly interpreted in the judgment under appeal as excluding a method, not otherwise challenged in the judgment under appeal, which makes it possible to conclude, on the basis of logical and watertight reasoning, that State aid incompatible with the common market is present. The Commission further relies on lack of jurisdiction of the Court of First Instance and breach of Article 230 EC, in so far as the Court of First Instance exceeded its powers and went beyond the power of review provided for in Article 230 EC, and on Article 36 of the Statute of the Court of Justice, in so far as the Court of First Instance failed to state reasons for the unlawfulness of the method used in the decision.