«(Appeal – State aid – Postal sector – Public undertaking entrusted with a service of general economic interest – Logistical and commercial assistance to a subsidiary not operating in a reserved sector – Concept of State aid – Criterion of private operator acting under normal market conditions)»

State aid – Definition – Logistical and commercial assistance provided by an undertaking entrusted with a service of general economic interest to its subsidiary – Not included – Conditions – Whether additional, variable costs are covered – Appropriate contribution to the fixed costs arising from use of the network set up by that undertaking – Adequate return on the capital investment used for the subsidiary's competitive activity (EC Treaty, Art. 90(2) (now Art. 86(2) EC) and Art. 92(1) (now, after amendment, Art. 87(1) EC)) In the absence of any possibility of comparing the situation of an undertaking entrusted with a service of general economic interest within the meaning of Article 90(2) of the Treaty (now Article 86(2) EC), such as an undertaking operating as a legal monopoly in the ordinary mail sector whose network would never have been created by a private undertaking, with that of a private group of undertakings not operating in a reserved sector, the criterion, necessarily hypothetical, of normal market conditions, which makes it possible to ascertain whether the provision of logistical and commercial assistance by a public undertaking to its subsidiary, which is governed by private law, is capable of constituting State aid, must be assessed by reference to the objective and verifiable elements which are available.The costs borne by that undertaking in respect of the provision of such assistance can constitute such objective and verifiable elements. On that basis, there is no question of State aid to the subsidiary if, first, it is established that the price charged properly covers all the additional, variable costs incurred by the provision of that assistance, an appropriate contribution to the fixed costs arising from use of the postal network and an adequate return on the capital investment in so far as it is used for the subsidiary's competitive activity and if, second, there is nothing to suggest that those elements have been underestimated or fixed in an arbitrary fashion.see paras 34, 36, 38-40

JUDGMENT OF THE COURT 3 July 2003 (1)

((Appeal – State aid – Postal sector – Public undertaking entrusted with a service of general economic interest – Logistical and commercial assistance to a subsidiary not operating in a reserved sector – Concept of State aid – Criterion of private operator acting under normal market conditions))

In Joined Cases C-83/01 P, C-93/01 P and C-94/01 P,

appellants,

APPEALS against the judgment of the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) of 14 December 2000 in Case T-613/97

the other parties to the proceedings being:

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet and M. Wathelet (Rapporteur) (Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and A. Rosas, Judges,

Advocate General: A. Tizzano,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 28 May 2002,

after hearing the Opinion of the Advocate General at the sitting on 12 December 2002,

gives the following

...

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT,

hereby:

Rodríguez Iglesias

Puissochet

Wathelet

Gulmann

Edward

Jann

Skouris

Macken

Colneric

von Bahr

Rosas

Delivered in open court in Luxembourg on 3 July 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President