L_2012289EN.01000101.xml
| 19.10.2012 | EN | Official Journal of the European Union | L 289/1 |
COMMISSION DECISION
of 25 January 2012
Measures C 36/07 (ex NN 25/07) implemented by Germany for Deutsche Post AG
(notified under document C(2012) 184)
(Only the German version is authentic)
(Text with EEA relevance)
(2012/636/EU)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) (1) thereof,
Having called on interested parties to submit their comments pursuant to the provision(s) cited above (2) and having regard to their comments,
Having regard to the Agreement on the European Economic Area and in particular Article 62(1)(a) thereof,
Whereas:
I. PROCEDURE
I.1. State aid Procedures
I.1.1. 1999 Opening Decision and 2002 Decision
| (1) | In 1994 United Parcel Service (hereafter UPS) filed a complaint concerning the granting of unlawful State aid to Deutsche Bundespost POSTDIENST (hereafter POSTDIENST). |
| (2) | Following the opening of proceedings on 23 October 1999 (hereafter 1999 Opening Decision), Germany submitted comments on 16 September 1999. Following publication, the Commission received comments from 14 interested parties, which were duly transmitted to the German Government by letter dated 15 December 1999 providing it with an opportunity to make its own observations concerning these comments. The German authorities responded by letter dated 1 February 2000, which was registered as received on 2 February 2000. |
| (3) | The Commission adopted a final negative decision on 19 June 2002 (3) (hereafter 2002 Decision) finding that POSTDIENST and its successor Deutsche Post AG (hereafter DPAG, while POSTDIENST and DPAG will be hereafter jointly referred to as Deutsche Post) priced door-to-door parcels below incremental costs and that its aggressive pricing policy did not to fall within Deutsche Post's universal service obligation. The resulting losses of EUR 572 million were ultimately financed, in contravention of Articles 106 and 107 TFEU, by the State resources which were granted to Deutsche Post in various forms (e.g. public transfers from sister company Deutsche Bundespost TELEKOM (hereafter TELEKOM), public guarantees for loans, and public subsidies to finance the civil servants' pensions). |
| (4) | Following the Commission's order, Germany recovered the incompatible State aid of EUR 572 million from DPAG. Deutsche Post challenged the decision in the Union Courts. |
| (5) | In its 2008 judgment (4), the General Court annulled the 2002 Commission Decision because the Commission failed to carry out a comprehensive analysis of all universal service revenues and costs to determine whether Deutsche Post had been under- or over-compensated. |
| (6) | Germany subsequently paid back the recovered State aid of EUR 572 million plus accrued interest to Deutsche Post. |
| (7) | On 2 September 2010, the Court of Justice dismissed the Commission's appeal against the General Court's judgment (5). |
I.1.2. Further complaints after 2002 Decision
| (8) | On 13 May 2004, UPS lodged a further complaint concerning unlawful State aid granted to Deutsche Post following the 2002 Decision. UPS argued that the 2002 Decision failed to examine all measures listed in the original 1994 complaint, and that Deutsche Post enjoyed significantly higher financial benefits than the incompatible aid of EUR 572 million. In addition, UPS is of the opinion that Deutsche Post used State resources to expand its parcel operations (e.g. for the purchase of other companies) and to sell services at excessively low transfer prices to its subsidiaries Postbank AG and Deutsche Post euro Express GmbH & Co. OHG (hereafter DPEED), which have been active respectively in banking services and marketing of business parcels under the brand name DHL. |
| (9) | The Commission services sent information requests to Germany on 9 November 2004 and 1 April 2005. Germany submitted its answers on 2 December 2004 and 3 June 2005 respectively. |
| (10) | On 16 July 2004, TNT Post AG & Co KG (hereafter TNT) filed a complaint also alleging that Deutsche Post sold services at excessively low transfer prices to Postbank AG. It claimed that, whereas Postbank AG only paid variable costs for the provided services, Deutsche Post financed the common fixed costs of the distribution network entirely out of the revenues of its letter monopoly. |
| (11) | The Commission services sent information requests to Germany on 11 November 2004 and 25 April 2005. Germany submitted its answers on 17 December 2004 and 23 June 2005 respectively. |
I.1.3. 2007 Extension decision
| (12) | Following the further complaints, the Commission informed Germany by letter of 12 September 2007 (6) (hereafter 2007 Extension decision) of its decision to extend the proceedings that had originally been initiated in 1999. The objective of the 2007 Extension decision was to include the newly submitted information and to comprehensively address all potential distortions of competition which resulted from the public measures that were granted to Deutsche Post (see Section I.1.14 for more details on the public transfers, the public guarantees, the pension subsidies, and the exclusive right for the provision of letter services). |
| (13) | The Commission considered it necessary to reconstruct in detail Deutsche Post's accounts for the period from 1990 to 2007 to gain clarity on the impact of the public measures on the revenues and costs of the different services provided by Deutsche Post. |
I.1.4. Comments by Germany on 2007 Extension decision
| (14) | Germany submitted its comments on 14 December 2007 and Deutsche Post challenged the validity of the 2007 Extension decision (see also Section I.3.1). |
I.1.5. Comments by third parties to the 2007 Extension decision and comments by Germany on third party comments
| (15) | On 16 November 2007 UPS and TNT submitted their comments. |
| (16) | After an initial request for a delay extension on 20 December 2007, Germany eventually submitted on 12 March 2008 its comments on TNT's and UPS' observations. |
I.1.6. Procurement of external expert
| (17) | On 23 January 2008, the Commission published an invitation to tender for an expert study to assist the Commission in determining whether Deutsche Post was overcompensated for its universal service obligations for the period 1990-2007 (7). |
| (18) | On 18 June 2008, the Commission concluded a contract with WIK Consult GmbH, an accounting expert for the postal sector. |
I.1.7. Comments by Germany on appropriate length of investigation period
| (19) | By letters of 10 June 2008 and 18 June 2008, Germany signalled its disagreement with the envisaged length of the investigation period (1990-2007) and maintained that it would be sufficient to limit the investigation to the period of 1990 until 1994 when the public transfers were granted because the losses in that period were higher than the public transfers so that Deutsche Post did not benefit from any overcompensation. Furthermore, the provision of accounting information for the period after 1994 would be disproportionate as the Community framework for State aid in the form of public service compensation (hereafter 2005 Framework) (8) would limit the period for the calculation of overcompensation to a maximum of four years. |
| (20) | On 27 June 2008, Germany submitted an expert opinion on the obligation of the Commission to investigate separately the public transfers, the public guarantees, and the pension subsidy (9). Furthermore, it claimed that an investigation of accounting data would be unnecessary for the assessment of the public guarantee and of the pension subsidy. |
| (21) | The German authorities affirmed the same position in the meeting with the Commission services on 29 May 2008 and 15 July 2008. |
I.1.8. Information request of 17 July 2008
| (22) | The Commission sent an information request to Germany on 17 July 2008 on all public measures under investigation including a questionnaire on revenues and costs of Deutsche Post for the period 1990-2007. The information request was prepared in cooperation with WIK Consult. On 5 August 2008, Germany asked for an undefined deadline extension because the availability of certain data would have to be checked in advance. |
I.1.9. Reminder for information of 12 August 2008 and 22 August 2008
| (23) | On 12 August 2008, the Commission explained why the investigation on the costs and revenues of Deutsche Post should be effected within the period 1990-2007 and insisted on the submission of the requested information. |
| (24) | In its submission of 14 August 2008, Germany maintained that there was no reason for examining the revenues and losses of Deutsche Post for the period after 1994. On 22 August 2008, the Commission reserved the right to adopt an information injunction pursuant to Article 10(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (10) if Germany did not provide the requested information. |
| (25) | With the submission of 29 September 2008, Germany presented the results of a further expert opinion — which was eventually submitted on 2 October 2008 — to support the position that an accounting analysis after 1994 was not necessary and therefore the appropriate investigation period should be 1990-1994 (11). |
| (26) | On 28 October 2008, Germany submitted information on the public guarantee and the pension subsidy. |
I.1.10. Information injunction of 30 October 2008
| (27) | The Commission did not accept Germany's arguments and insisted that an |
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