ORDER OF THE GENERAL COURT (Fifth Chamber)

1 June 2022 (*)

(State aid – Compensation granted for the provision of the universal service obligation in the postal sector – Complaint – Action for annulment – Act not open to challenge – Inadmissibility)

In Case T‑585/21,

Zásilkovna s. r. o., established in Prague (Czech Republic), represented by R. Kubáč, lawyer,

applicant,

v

European Commission, represented by J. Carpi Badía and L. Nicolae, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment, first, of the Commission’s letter of 9 July 2021 concerning the compensation granted to Česká pošta for the provision of a universal service obligation for the period from 2018 to 2022 and the decision of 23 June 2020 initiating the formal investigation procedure (SA.55208 (2020/C), SA.55497 (2019/FC) and SA.55686 (2019/FC)) and, second, of the Commission’s letter of 31 August 2021 concerning the compensation granted to Česká pošta for the provision of a universal service obligation for the period from 2018 to 2022 (SA.55208 (2020/C)),

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, U. Öberg and I. Gâlea (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        By decision of 22 February 2013, Český telekomunikační úřad (Czech Telecommunications Regulatory Authority) designated Česká pošta, which is wholly owned by the Czech State, as the universal postal service provider until 31 December 2017.

2        On 19 February 2018, the European Commission adopted Decision C(2018) 753 final, concerning State aid SA.45281 (2017/N) and SA.44859 (2016/FC) – State compensations granted to Česká pošta for the provision of the universal postal service for the period 2013-2017 (‘the 2018 decision’), a summary of which was published in the Official Journal of the European Union (OJ 2018 C 158, p. 2). By that decision, the Commission found that the compensation granted by the Czech Republic to Česká pošta for the provision, by Česká pošta, of the universal service obligation (‘USO’), for the period from 2013 to 2017, constituted State aid compatible with the internal market, pursuant to Article 106(2) TFEU.

3        On 22 May 2018, Mediaservis s. r. o., a private provider of postal services operating on Czech territory, brought an action before the General Court, registered as Case T‑316/18, for annulment of the 2018 decision.

4        By judgment of 15 October 2020, První novinová společnost v Commission (T‑316/18, not published, EU:T:2020:489), the General Court dismissed that action.

5        By decision of 12 December 2017, the Czech Telecommunications Regulatory Authority again designated Česká pošta as universal postal service provider, for the period from 1 January 2018 to 31 December 2022.

6        On 18 January 2018, the Czech authorities pre-notified the Commission of the compensation granted to Česká pošta for the provision of the USO for the period from 2018 to 2022. On 8 March 2019, following discussions with the Commission, they withdrew that pre-notification.

7        On 20 August 2019, the Czech authorities pre-notified again compensation granted to Česká pošta for the provision of the USO for the period from 2018 to 2022. That pre-notification was registered under number SA.55208 (2020/C).

8        On 8 November 2019, the applicant, Zásilkovna s. r. o., an undertaking established in the Czech Republic which operates in the parcel delivery sector, lodged a complaint with the Commission, claiming that the USO compensation granted to Česká pošta constituted State aid incompatible with the internal market. That complaint was registered under number SA.55686 (2019/FC).

9        In its complaint, the applicant submitted that that compensation infringed the rules on State aid in two respects. It argued, first, that the amount of compensation exceeded what was necessary to cover the net cost of discharging the USO, for both the period from 2013 to 2017 and the period from 2018 to 2022, and, second, that Česká pošta financed its commercial activities by means of that compensation, in breach of the prohibition on cross-subsidisation of such activities.

10      On 22 November 2019, Mediaservis also lodged a complaint with the Commission concerning alleged State aid granted to Česká pošta by means of the compensation for the USO. That complaint was registered under number SA.55497 (2019/FC).

11      On 28 January 2020, the Czech authorities notified the compensation granted to Česká pošta for the provision of the USO for the period from 2018 to 2022.

12      On 23 June 2020, the Commission adopted Decision C(2020) 4090 final on State aid SA.55208 (2020/C) (ex 2020/N) – Česká pošta USO compensation for the period 2018-2022, SA.55497 (2019/FC) and SA.55686 (2019/FC) – Complaints regarding alleged incompatible State aid granted to Česká pošta (OJ 2020 C 294, p. 24; ‘the 2020 opening decision’). By that decision, the Commission initiated the procedure laid down in Article 108(2) TFEU in respect of the USO compensation granted to Česká pošta for the period from 2018 to 2022. It found that the compensation granted for that period constituted State aid within the meaning of Article 107(1) TFEU and that, at that stage, doubts remained as to its compatibility with the internal market, in particular because it could not be ruled out that the amount of that compensation was greater than the net avoided cost. By contrast, the Commission considered that the other measures mentioned in the complaints of the applicant and Mediaservis did not constitute State aid and that it would therefore take account of those measures only in so far as they had an impact on the amount of compensation for the USO.

13      By letter of 28 August 2020, the Commission informed the applicant of the adoption of the 2020 opening decision and stated that it could submit comments in that regard within one month of the date of publication of that decision in the Official Journal.

14      On 2 October 2020, the applicant submitted its comments to the Commission in the formal investigation procedure. It argued, inter alia, that, contrary to what the Commission had found in that decision, the use of the USO compensation to finance Česká pošta’s commercial activities constituted separate State aid, both for the period from 2013 to 2017 and for the period from 2018 to 2022.

15      By letter of 9 July 2021, concerning the USO compensation granted to Česká pošta for the period from 2018 to 2022 and the decision of 23 June 2020 (SA.55208 (2020/C), SA.55497 (2019/FC) and SA.55686 (2019/FC)) (‘the letter of 9 July 2021’), the Commission’s Directorate-General for Competition (DG Competition) informed the applicant that the comments and information that the applicant had submitted to it with the complaint registered under number SA.55686 (2019/FC) would be examined in the context of the formal investigation procedure under case number SA.55208 (2020/C), and that case SA.55686 (2019/FC) would therefore be closed. It also informed the applicant that only comments and information related to issues concerning the USO compensation for which the Commission had expressed doubts in the 2020 opening decision would be considered under case SA.55208 (2020/C).

16      By email of 5 August 2021, the applicant asked the Commission whether the formal investigation procedure initiated by the 2020 opening decision also covered the cross-subsidisation of Česká pošta’s commercial activities or whether it should regard the letter of 9 July 2021 as rejecting its complaint in so far as it alleged cross-subsidisation. By email of 18 August 2021, the Commission replied to the applicant that it would contact the applicant again in that regard at a later date, most of the members of the team responsible for handling its case being on holiday. The applicant repeated its request by email on 26 August 2021 and received by email, on the same day, a similar reply to that received on 18 August 2021. By email of 27 August 2021, the applicant again asked the Commission to answer the question which had been put to it on 5 August 2021.

17      By letter of 31 August 2021, relating to the USO compensation granted to Česká pošta for the period from 2018 to 2022 (SA.55208 (2020/C)) (‘the letter of 31 August 2021’), DG Competition informed the applicant that the applicant’s email of 5 August 2021 was based on a misunderstanding, since the letter of 9 July 2021 merely informed the applicant of the new case number and had no bearing on the substance of the case. In addition, in its letter of 31 August 2021, the Commission made clear to the applicant that, in the final decision, it would address the main points raised in the applicant’s complaint and would take into account the observations made by the applicant on the 2020 opening decision.

 Procedure and forms of order sought

18      By application lodged at the Court Registry on 9 September 2021, the applicant brought the present action for annulment of the letter of 9 July 2021 and the letter of 31 August 2021 (together ‘the contested letters’).

19      By separate document lodged at the Court Registry on 30 November 2021, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. On 13 January 2022, the applicant submitted its observations on the plea of inadmissibility.

20      By document lodged at the Court Registry on 10 January 2022, the Czech Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By letter lodged at the Court Registry on 8 February 2022, the applicant submitted its observations on that application to intervene.

21      By document lodged at the Court Registry on 14 January 2022, Česká pošta applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

22      The processing of those applications to intervene was suspended in accordance with Article 144(3) of the Rules of Procedure.

23      The applicant claims that the Court should:

–        annul the contested letters;

–        order the Commission to pay the costs.

24      In its plea of inadmissibility, the Commission contends that the Court should:

–        dismiss the action as inadmissible;

–        order the applicant to pay the costs.

 Law

25      Under Article 130(1) and (7) of the Rules of Procedure, on the application of the defendant the Court may decide on inadmissibility or lack of competence without going to the substance of the case.

26      In this case, as the Commission has applied for a decision on inadmissibility, the Court, which considers that it has sufficient information available to it from the material in the file, has decided to rule on that application without taking further steps in the proceedings.

27      According to the Commission the action is inadmissible in so far as it is directed against acts which are not open to challenge in an action.

28      In that regard, the Commission contends that the sole purpose of the letter of 9 July 2021 is to facilitate the conduct of the procedure by grouping the three ongoing proceedings together under a single registration number. The issue of cross-subsidisation is not addressed in that letter which cannot therefore be interpreted as rejecting even in part the applicant’s complaint. The letter of 9 July 2021 is therefore of a purely informative nature. Only the 2020 opening decision or the decision to be adopted at the end of the formal investigation procedure can produce legal effects. Since the applicant did not challenge the 2020 opening decision within the two-month period for instituting proceedings laid down in Article 263 TFEU, it cannot circumvent the expiry of that period by bringing an action against the letter of 9 July 2021.

29      As regards the letter of 31 August 2021, the Commission contends that its sole purpose is to explain the letter of 9 July 2021. Cross-subsidisation is one of the ‘main points raised in the … complaint’ that the letter of 31 August 2021 states will be addressed in the decision adopted after the formal investigation procedure even though, according to the Commission, it does not constitute separate State aid. In addition, in the Commission’s view, the applicant cannot dispute its assessment that the USO compensation granted to Česká pošta for the period from 2013 to 2017 constituted State aid compatible with the internal market, since that assessment has now been validated by the Court by a judgment which has become final.

30      The applicant disputes the plea of inadmissibility. It submits that it is not certain whether the letter of 31 August 2021 rejects its complaint in so far as it concerns cross-subsidisation, since that letter states that the Commission will address the ‘main points raised in the … complaint’ without specifying what those points are or whether they include cross-subsidisation. By contrast, the applicant understands the letter of 9 July 2021 as rejecting its complaint in so far as it concerns cross-subsidisation because it is apparent from that letter that, in case SA.55208 (2020/C), the Commission will deal only with issues addressed in the 2020 opening decision, which do not include cross-subsidisation.

31      According to settled case-law, any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as ‘challengeable acts’, for the purpose of Article 263 TFEU. In order to ascertain whether or not a measure which has been challenged produces such effects, it is necessary to look to its substance. Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgments of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48).

32      In addition, in the case of an action for annulment brought by a natural or legal person, as in the present case, the binding legal effects of the contested measure must be capable of affecting the interests of the applicant by bringing about a distinct change in the applicant’s legal position (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 37 and the case-law cited).

33      In the present case, since the form of the contested letters – in this case they do not take the form of a decision within the meaning of Article 4 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), and they are signed by a head of unit of DG Competition – is not decisive, it is necessary to ascertain their substance in order to assess whether they produce legally binding effects with regard to the applicant, taking account of, in particular, their wording, their content, the context in which they arise and the intent of their author.

34      In that regard, it should be noted that, as of 9 July 2021, three separate procedures were pending before the Commission in respect of the USO compensation granted to Česká pošta: first, case SA.55208 (2020/C), which was initiated when the Czech authorities pre-notified that measure; second, case SA.55686 (2019/FC), which was initiated when the applicant filed its complaint; and, third, case SA.55497 (2019/FC), which was initiated when Mediaservis filed its complaint.

35      The contested letters inform the applicant that cases SA.55208 (2020/C) and SA.55686 (2019/FC) are being grouped together and that, as a result, case SA.55686 (2019/FC) is closed, so that the number of the procedure in which the applicant’s complaint will be dealt with has changed.

36      First, the applicant submits that case SA.55208 (2020/C) concerns only partly the same measures as case SA.55686 (2019/FC). Case SA.55208 (2020/C) concerns the measure notified by the Czech authorities, namely the USO compensation for the period from 2018 to 2022, whereas case SA.55686 (2019/FC) concerns the measures referred to in the applicant’s complaint, that is to say, the USO compensation not only for the period from 2018 to 2022, but also for the period from 2013 to 2017.

37      Second, the applicant submits that it is apparent from the letter of 9 July 2021 that in case SA.55208 (2020/C) the Commission will not examine whether there is cross-subsidisation, whereas case SA.55686 (2019/FC) also concerned a claim of cross-subsidisation.

38      Therefore, in order to determine whether the contested letters produce legal effects, it is necessary to ascertain whether or not, rather than simply grouping together two separate procedures, they do alter the subject matter of the examination which will be carried out by the Commission. In the applicant’s view, that would be the case if, in case SA.55208 (2020/C), the Commission merely assessed whether the USO compensation for the period from 2018 to 2022 gave rise to over-compensation of the net costs, thereby rejecting its complaint in so far as, first, it concerns the USO compensation for the period from 2013 to 2017 and, second, it alleges cross-subsidisation.

39      In the first place, as regards the wording and content of the contested letters, it must be noted that, by the letter of 9 July 2021, DG Competition informs the applicant that ‘the comments and the information provided with the complaint in case SA.55686 (2019/FC) will be examined in the context of the formal investigation procedure (SA.55208 (2020/C)). Case SA.55686 (2019/FC) will therefore be closed’.

40      Admittedly, that passage in the letter of 9 July 2021 suggests that all the measures which are the subject of the applicant’s complaint and all the claims raised in that complaint will be examined by the Commission in the context of case SA.55208 (2020/C), particularly since, in the letter of 31 August 2021, DG Competition stated that ‘the letter sent on 9 July 2021 was simply a procedural statement to inform [the applicant] on the new case number (SA.55208 (2020/C))’ and that ‘it [had] no implication on the substance on the case’.

41      However, it should be noted that, in the letter of 9 July 2021, DG Competition, having made the statement referred to in paragraph 39 above, goes on to indicate to the applicant that it must ‘bear in mind that only comments and information related exclusively to issues concerning the USO compensation for which the Commission expressed doubts in [the 2020 opening decision] will be considered under case SA.55208 (2020/C)’.

42      In the 2020 opening decision, the Commission initiated the formal investigation procedure only with regard to the USO compensation for the period from 2018 to 2022, taking the view that, at the end of the preliminary investigation, doubts remained as to the compatibility of that compensation with the internal market. As regards the other measures which were the subject of the complaints of the applicant and Mediaservis, the Commission found in recital 143 of the 2020 opening decision that they did not constitute State aid within the meaning of Article 107(1) TFEU and that they would therefore be taken into account in the decision adopted at the end of the formal investigation procedure only to the extent that they would have an impact on the amount of the costs and compensation granted to Česká pošta.

43      First, as regards the USO compensation for the period from 2013 to 2017 addressed in the applicant’s complaint, the Commission noted in recitals 136 and 140 of the 2020 opening decision that it had concluded that that measure was compatible with the internal market in the 2018 decision, against which an action was pending before the General Court.

44      Therefore it must be held that, in the 2020 opening decision, the Commission did not rule on the classification as State aid and the compatibility with the internal market of the USO compensation for the period from 2013 to 2017. The 2020 opening decision cannot therefore be regarded as rejecting the applicant’s complaint in so far as it relates to that compensation.

45      Clearly, the letter of 9 July 2021 cannot be regarded as rejecting the applicant’s complaint inasmuch as it concerns the USO compensation for the period from 2013 to 2017, since, far from indicating which aspects of the complaint will be dealt with in the decision that will be adopted after the formal investigation procedure, that letter merely refers in that regard to the 2020 opening decision without providing any details as to the issues which are the subject of that procedure.

46      Second, as regards the claim of cross-subsidisation put forward in the applicant’s complaint, the Commission found in recitals 138 and 139 of the 2020 opening decision, first, that the allocation of the costs generated by the delivery and transportation network to Česká pošta’s commercial activities account, and not to the USO account, did not constitute State aid; second, that at that stage of its examination Česká pošta could be regarded as fulfilling its obligation to maintain separate accounts for the USO and for its other activities; and, third, that the amount of compensation paid to it was calculated on the basis of the net avoided cost and not the cost allocation, so that the claim of misallocation of costs was in any event unfounded.

47      In that regard, it must be noted that the issue as to whether the claim of cross-subsidisation was rejected in the 2020 opening decision is disputed between the parties. The Commission contends that, in that decision, it considered that cross-subsidisation did not amount to State aid separate from that constituted by the USO compensation and that it would therefore be analysed in the course of the assessment of that compensation. The applicant, for its part, maintains that the Commission did not deal with the question of cross-subsidisation in the 2020 opening decision. It notes, in particular, that the question of the allocation of the costs for Česká pošta’s delivery and transportation network to its commercial activities account, which recital 138 of that decision indicates does not amount to separate State aid, is not indissociable from the issue of cross-subsidisation of those activities.

48      Without there being any need to rule on the question whether, in the 2020 opening decision, the Commission rejected the applicant’s complaint in so far as it claimed a cross-subsidisation of Česká pošta’s commercial activities, it must be noted that, as stated in paragraph 45 above, the letter of 9 July 2021 merely refers to that decision as regards determining the aspects of the complaint which will be addressed in the decision adopted at the end of the formal investigation procedure.

49      Therefore, even assuming that the applicant’s complaint was rejected in so far as it claims cross-subsidisation, it would have been rejected by the 2020 opening decision, not by the letter of 9 July 2021.

50      As regards the wording and content of the letter of 31 August 2021, it should be noted that, having made the statement referred to in paragraph 40 above, DG Competition goes on to ‘[assure] [the applicant] that in the final decision [it] will address the main points raised in [the applicant’s] initial complaint and that [it] will take into account the observations made by [the applicant] on the [2020 opening decision]’.

51      In that regard, it should be noted that, unlike the letter of 9 July 2021, according to which ‘only comments and information related exclusively to issues concerning the USO compensation for which the Commission [had] expressed doubts in [the 2020 opening decision]’ would be taken into account in the context of case SA.55208 (2020/C), the letter of 31 August 2021 merely states that the ‘main points’ raised in that complaint will be addressed in the decision adopted at the end of the formal investigation procedure. The absence of any definition, in the letter of 31 August 2021, of those ‘main points’ precludes that letter from being regarded as rejecting in part the applicant’s complaint in so far as it concerns the USO compensation for the period from 2013 to 2017 and the claim of cross-subsidisation.

52      In the second place, as regards the context in which the contested letters arise, it must be pointed out that they were sent to the applicant after the adoption of the 2020 opening decision, which circumscribes the scope of the formal investigation procedure.

53      In addition, as regards more specifically the letter of 31 August 2021, it must be noted that it was sent to the applicant after an exchange of emails between the applicant and DG Competition in which the applicant asked the Commission’s services whether it should regard the letter of 9 July 2021 as rejecting its complaint relating to cross-subsidisation. Therefore, the absence of any definition in the letter of 31 August 2021 of the ‘main points’ which would be addressed in the decision to be adopted at the end of the formal investigation procedure clearly indicates that that letter cannot be considered a rejection of the applicant’s complaint in that regard.

54      In the third place, as regards the intent of the Commission underlying the contested letters, it is clear both from the wording and content of those letters as well as from the context in which they arise, namely that of an exchange between the applicant and DG Competition following the initiation of the formal investigation procedure. In particular, it is clear from the express reference to the 2020 opening decision in the letter of 9 July 2021 and from the emails subsequent to that letter that the Commission did not intend, by the contested letters, to reject in part the applicant’s complaint.

55      It follows from all the foregoing considerations that the contested letters cannot be regarded as rejecting the applicant’s complaint in so far as, first, it concerns the USO compensation for the period from 2013 to 2017 and, second, it claims cross-subsidisation of Česká pošta’s commercial activities. Therefore, the contested letters are not in the nature of a decision and merely inform the applicant of the grouping together of cases SA.55208 (2020/C) and SA.55686 (2019/FC) and of the closure of the latter. Being devoid of legal effects, they are not challengeable acts which may be the subject of an action for annulment for the purpose of Article 263 TFEU.

56      Consequently, it is necessary to uphold the plea of inadmissibility raised by the Commission and, therefore, to dismiss the action as inadmissible.

 Costs

57      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission, with the exception of the costs relating to the applications to intervene.

58      In addition, under Article 144(10) of the Rules of Procedure, where, as in the present case, the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties are each to bear their own costs relating to the application to intervene. Consequently, the applicant, the Czech Republic and Česká pošta shall each bear their own costs relating to the applications to intervene. Since, unlike the applicant, the Commission did not submit observations on the applications to intervene, the Commission does not have to bear the costs relating to those applications.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      There is no need to rule on the applications to intervene of the Czech Republic and Česká pošta.

3.      Zásilkovna s. r. o. shall bear its own costs and pay those incurred by the European Commission, with the exception of those relating to the applications to intervene.

4.      Zásilkovna, the Czech Republic and Česká pošta shall each bear their own costs relating to the applications to intervene.

Luxembourg, 1 June 2022.

*      Language of the case: English.