On 22 September 2011, the European Court of Justice dismissed an appeal from Belgium against the annulment, by the General Court, of the Commission's decision not to raise objections to a proposed € 297.5 million increase in the capital of the Belgian postal undertaking La Poste.
In a decision of 23 July 2003, based on a preliminary examination, the Commission held that the notified capital increase did not constitute state aid. In its decision, the Commission also cleared six unnotified measures from which La Poste had benefited since its conversion to a public share company in 1992. Among these measures was the transfer by the Belgian authorities of certain buildings to La Poste in return for the cancellation of a provision for pensions of € 100 million created by La Poste.
Following an action for annulment from Deutsche Post and its Belgian subsidiary DHL International, the General Court quashed the Commission's decision. First, it held that the action was admissible insofar as, by clearing the Belgian measures at a preliminary stage, the Commission had deprived the applicants of the procedural rights from which they would have benefited if the Commission had opened a formal investigation. Second, it annulled the Commission's decision on the grounds that the long duration and circumstances of the Commission's initial investigation, together with the inadequate and incomplete nature of the examination and the content of the decision, suggested the presence of serious difficulties that should have led the Commission to initiate a formal investigation. The General Court noted that seven months had elapsed between the notification of the measure and the Commission's decision, which is much longer than the time usually needed to conduct preliminary examinations. It noted further that the Commission itself had highlighted the complexity of the case on several occasions during the preliminary examination.
In its judgment of 22 September 2011, the Court of Justice dismissed the appeal lodged by the Belgian government and the Commission.
Firstly, the Court of Justice endorsed the General Court's views regarding the admissibility of the action for annulment brought by Deutsche Post and DHL International. The Court confirmed that, by seeking the annulment of a decision not to raise objections, the applicants essentially sought to preserve their procedural rights against the Commission's failure to initiate a formal investigation.
Secondly, the Court of Justice agreed with the General Court's conclusion that the Commission's decision did not dispel doubts regarding the compatibility of the impugned measure with the internal market. In particular, it upheld the General Court's view that the examination carried out by the Commission was inadequate and incomplete. In that respect, the Court considered notably that the Commission adopted the contested decision without having at its disposal sufficient evidence to determine whether La Poste had derived any undue benefit from the free use of buildings belonging to the Belgian State. The Court also noted that the unusual length of the preliminary investigation could constitute evidence that the Commission should have had doubts regarding the compatibility of the measure at stake with the internal market. Consequently, it concurred with the General Court in finding that such doubts should have led to the Commission to initiate formal investigation proceedings rather than to clear the Belgian measures at face value.
