C-83/01

I - 6995

OPINION OF MR TIZZANO — CASES C-83/01 P, C-93/01 P AND C-94/01 P

price for the purchase of such services delivery service provided by SFMI and the price actually paid by SFMI under the name of EMS/Chronopost constituted State aid. An economic were set out in an order from the study carried out by Braxton, a con- Ministry for Posts and Telecommuni- sultancy firm, at SFEI's request, was cations of 19 August 1986. According appended to the complaint in order to to that order, La Poste was to provide demonstrate the value of the amount of SFMI with logistical and commercial aid during the period from 1986 to assistance. The contractual relations 1989. between La Poste and SFMI are gov- erned by agreements, the first of which dates from 1986.

I - 6996

CHRONOPOST AND OTHERS v UFEX AND OTHERS

The action before the Tribunal de Com- The Commission's investigations and the merce de Paris and the reference for a contested decision preliminary ruling

A second study by Braxton was attached to the application, updating the information contained in the first study and evaluating the amount of the aid up to the end of 1991. In a judgment of 5 January 1994, the Tribunal de Commerce 5. Both the French Government and SFEI de Paris referred several questions to the submitted observations to the Commission Court of Justice for a preliminary ruling on in response to the decision to initiate the the interpretation of Articles 92 and 93 of procedure, attaching studies they had com- the EC Treaty (now Article 88 EC), one of missioned from well-known consultancy which sought clarification of the concept of firms.8 On that occasion, SFEI also 'ex- State aid in the circumstances of the present tended its complaint of December 1990 to

of its "the provision of logistical and commercial decision to take no action on the complaint under Article 92 of the Treaty. On 16 May 1992 SFEI together with other assistance by a public undertaking to its undertakings lodged an action with the Court of Justice for subsidiaries, which are governed by private annulment of that decision. The Court ruled that it was not necessary to proceed to judgment (order of 18 November law and carry on an activity open to free 1992 in Case C-222/92 SFEI and Others v Commission, not published in the ECR) in the light of the Commission competition, is capable of constituting Decision of 9 July 1992 to withdraw the decision of 10 March 1992'. State aid within the meaning of Article 92 6 — See paragraph 8 of the judgment in particular. of the EC Treaty if the remuneration 7 — Paragraph 10 of the judgment; paragraph 11 states that a received in return is less than that which notice on the initiation of the procedure was published in the Official Journal of the European Communities on would have been demanded under normal 17 July 1996 (OJ 1996 C 206, p. 3). market conditions'" (paragraph 9). 8 — See paragraphs 10, 12 and 13 of the contested judgment.

9. The Commission rejected those argu- ments, observing that 'nothing in the 7. Confining myself for present purposes to Court's case-law suggests that the Com- the 'logistical and commercial assistance', I mission should disregard the strategic con- note that, according to the Commission siderations and the synergies stemming itself, that assistance comprised: (i) 'logis- from the fact that the Post Office and tical assistance, which consists in making SFMI-Chronopost belong to the same available to SFMI-Chronopost the use of group' and that 'the fact that the trans- the postal infrastructure for the collection, action takes place between an undertaking sorting, transport and delivery of its dis- operating in a reserved market and its patches'; and (ii) 'commercial assistance, subsidiary operating in a competitive mar- which consists in SFMI-Chronopost's ket' is of no relevance to the case. Accord- access to La Poste's customers and enjoy- ingly, in the Commission's view, the rel- ment of its goodwill'. evant question is 'whether the terms of the transaction between the Post Office and SFMI-Chronopost are comparable to those 9 — Paragraph 12 of the contested judgment. of an equivalent transaction between a 10 — Article 1 of the decision. private parent company, which may very

I - 6998

CHRONOPOST AND OTHERS v UFEX AND OTHERS

well be a monopoly (for instance because of also some fixed costs (such as buildings and the ownership of exclusive rights), and its vehicles). France has shown that as from subsidiary'. Therefore, 'the "normal mar- 1988 the remuneration paid by SFMI- ket price" criterion put forward by the Chronopost for the assistance covers all complainant does not answer this question the costs incurred by the Post Office, plus a since it overlooks the fact that the trans- contribution by way of interest on its action takes place between two companies equity capital'. within the same group'.

12. The Commission subjected that con- clusion to a further test by considering 'whether the Post Office behaviour as a shareholder of SFMI-Chronopost was com- 'In this case payments made by SFMI- mercially justified under the market econ- Chronopost did not cover total costs over omy investor principle'. In that connection, the first two years of operation, but it observed in particular: covered total costs before central and local offices' overheads. The Commission con- siders that this situation is not abnormal since revenues from the operations of a new firm belonging to a group of companies may cover only variable costs in the start-up period. Once the undertaking has stabilised its position on the market, the revenues generated by it must be in excess 'Under that test, to establish whether a of variable costs so as to make a contribu- transaction between a Member State and tion to the fixed costs of the group. Over an undertaking contains State aid, it is the first two years (1986 to 1987) of necessary to verify whether the undertaking operation payment made by SFMI-Chrono- would have been able to obtain the monies post covered not only variable costs, but on the private capital markets. To assess

I - 6999

OPINION OF MR TIZZANO — CASES C-83/01 P, C-93/01 P AND C-94/01 P

whether the Post Office has behaved like a First Instance to annul the Commission's market economy investor the Commission decision. The application was naturally has to look at the return to the parent opposed by the Commission and the French company in terms of dividends distributed Government, La Poste and Chronopost and capital growth. No State aid arises if subsequently intervened in support of the the internal rate of return ("IRR") of the Commission. investment exceeds the cost of capital of the company (that is to say, the normal rate of return that a private investor would require under similar circumstances)'.

I - 7000

CHRONOPOST AND OTHERS v UFEX AND OTHERS

I - 7001

OPINION OF MR TIZZANO — CASES C-83/01 P, C-93/01 P AND C-94/01 P

70 In the SFEI judgment the Court of the transaction in question would be com- Justice found that such a determination parable to a transaction between undertak- presupposes an economic analysis taking ings operating in normal market con- into account all the factors which an ditions. On the contrary, in the contested undertaking acting under normal market decision the Commission merely verified conditions should have taken into consider- the costs incurred by La Poste in providing ation when fixing the remuneration for the logistical and commercial assistance and services provided (paragraph 61). the extent to which those costs were reimbursed by SFMI-Chronopost.

75 The Commission should thus have 73 It is evident from these statements that examined whether those full costs took the Commission did not base its decision on account of the factors which an undertak- an economic analysis of the kind required ing acting under normal market conditions by the SFEI judgment in order to show that should have taken into consideration when I - 7002

CHRONOPOST AND OTHERS v UFEX AND OTHERS

fixing the remuneration for the services conditions, does not prohibit such a public provided. Hence, the Commission should undertaking from entering an open market at least have checked that the payment but subjects it to the rules of competition, received in return by La Poste was com- as the fundamental principles of Commu- parable to that demanded by a private nity law require. Such a requirement does holding company or a private group of not adversely affect the system of public undertakings not operating in a reserved ownership and merely ensures that public sector, pursuing a structural policy — and private ownership are treated equally.' whether general or sectorial — and guided by long-term prospects (see to this effect Case C-305/89 Italy v Commission [1991] ECR I-1603, paragraph 20).

I - 7003

OPINION OF MR TIZZANO — CASES C-83/01 P, C-93/01 P AND C-94/01 P

only the first plea (alleging infringement of Court, pursuant to Article 117 of the Rules the rights of the defence) and those aspects of Procedure, Chronopost and La Poste of the third plea (alleging errors of fact and submitted a reply and this was followed by manifest errors of assessment) that did not a rejoinder from Ufex. relate to the logistical and commercial assistance provided by La Poste to SFMI- Chronopost. In both cases, the applicants' allegations were held to be unfounded. The Court of First Instance therefore annulled Article 1 of the contested decision within the specified limits and dismissed the remainder of the application. Legal analysis

21. In the present cases which, for obvious reasons, I shall examine together, the grounds of appeal put forward by Chrono- The procedure before the Court post, the French Republic and La Poste largely coincide. Essentially, they claim:

(iv) infringement of Article 87(1) EC aris- that which would have been demanded ing from an incorrect interpretation of under normal market conditions'. 13 the constituent elements of the concept of State aid, in particular the granting of an advantage to the recipient under- taking and the transfer of public resources; 23. As we have seen, for the purpose of applying that principle in the present case, the Commission considered that the rel- evant question is 'whether the terms of the (v) infringement of the obligation to pro- transaction between the Post Office and vide a statement of reasons. SFMI-Chronopost are comparable to those of an equivalent transaction between a private parent company, which may very well be a monopoly (for instance because of the ownership of exclusive rights), and its subsidiary'. 14 In that connection, it explained that 'internal prices at which products and services are transacted between companies belonging to the same The first plea, alleging infringement of group do not involve any financial advan- Article 87(1) EC arising from an incorrect tage whatsoever [and thus do not constitute interpretation of the concept of 'normal State aid] if they are full-cost prices (total market conditions' costs plus a mark-up to remunerate equity capital investment)'. However that approach was rejected by the Court of First Instance, which held that in accordance Arguments of the parties with the SFEI judgment 'the Commission should thus have examined whether those full costs took account of the factors which an undertaking acting under normal mar- ket conditions should have taken into consideration when fixing the remuner- ation for the services provided. Hence, the 22. The first plea submitted by the appel- Commission should at least have checked lants against the contested judgment turns that the payment received in return by La on the concept of 'normal market con- Poste was comparable to that demanded by ditions' employed in the SFEI judgment to a private holding company or a private determine the circumstances in which the group of undertakings not operating in a provision of logistical and commercial reserved sector, pursuing a structural pol- assistance by a public undertaking to its icy — whether general or sectorial — and subsidiaries operating in a sector open to guided by long-term prospects'. 15 free competition is capable of constituting State aid. In that judgment, the Court held that the provision of such assistance is 13 — Paragraph 62; my emphasis. capable of constituting State aid 'if the 14 — My emphasis. remuneration received in return is less than 15 — Paragraph 75; my emphasis.

25. They observe in particular that in order to apply that concept in the present case under the well-known market economy investor principle the Court of First Instance should have referred to the return that would have been demanded from its 27. In the same connection, Chronopost own subsidiary by a private operator com- points out that the case-law of the Court parable to La Poste pursuing 'a structural does not in fact require the prices of the policy — whether general or sectorial — public undertaking to be compared with and guided by prospects of profitability in those of its competitors. It is consequently the longer term'. 16 It is, they claim, clear incorrect to assert that there is State aid from the case-law of the Court that in order simply because La Poste charges less for its to determine whether aid has been granted services than the parent companies of it is necessary to compare the behaviour of SFMI-Chronopost's competitors. In fact, the public undertaking with that of a there would have been aid only if La Poste private investor 'of a size comparable' to had behaved in a manner that would have that of the bodies administering the public been impossible for a private operator in sector 17 or 'which, so far as possible, is in the same position, that is to say if it had not the same position'. 18 Thus, in referring to a required normal remuneration for its ser- private undertaking 'not operating in a vices. reserved sector', they claim that the Court of First Instance erred in basing its comparison on an undertaking that was structurally different from La Poste instead of comparing the behaviour of the latter with that of an undertaking in the same position (that is to say, an undertaking which has a reserved sector). 28. Chronopost adds that, if granting La Poste a reserved sector does not constitute State aid, any advantages La Poste may 16—Judgment in Case C-305/89 Italy v Commission, cited derive from the concession in terms of above, paragraph 20. 17 — Judgments in Case C-305/89 Italy v Commission, cited productivity (yet to be demonstrated) are above, paragraph 19, and Case C-42/93 Spain v Commis- no different from the economies of scale sion [1994] ECR I-4175, paragraph 13. 18—Judgment in Case C-256/97 DMT [1999] ECR I-3913, that could be achieved by a private under- paragraph 25. taking which is in a dominant position or

30. But the appellants also claim that the solution indicated by the Court of First Instance is impracticable. According to the French Republic, that solution is absurd since a private operator which did not have a legal monopoly would never acquire a public service network comparable with 32. Ufex naturally takes the opposite view that of La Poste. That is confirmed by La that the Court of First Instance was correct Poste, which points out that Ufex itself in its interpretation of the concept of

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OPINION OF MR TIZZANO — CASES C-83/01 P, C-93/01 P AND C-94/01 P

34. In the first case, it contends that in assessing whether 'normal market con- ditions' obtain it is not necessary to deter- mine a market price (the State is not in fact selling goods or providing services) but only to take account of the return on the 36. In such circumstances, it would there- capital invested and the risks incurred. fore be a mistake to assess whether there is However, where a public undertaking State aid by reference to the return operating in a reserved sector provides obtained by a parent company operating services for its subsidiaries operating in a in a reserved sector. The fact that the market that is open to competition, the parent company has a legal monopoly may transactions would in its view be conducted indeed compromise the assessment in that under 'normal market conditions' only if case, as there is reason to fear that in a the payment for such services corresponded monopoly position of this kind costs may to the market price. In that case, it would be less than the market rate with the result essentially be necessary to employ the that profits may be artificially high. The market price benchmark normally used by Court of First Instance therefore quite the Commission to establish whether a rightly avoided concentrating in the con- guarantee given by the State or the sale of tested judgment on the costs incurred by public assets (such as public undertakings, the public undertaking with a legal mon- land or buildings, for example) constitute opoly and thus on its profitability, referring State aid. instead to the market prices charged for

providing the services in question by a to be no doubt that in the period in private undertaking operating under nor- question La Poste was 'entrusted with a mal market conditions, thus without a legal service of general economic interest' within monopoly. the meaning of the judgment in Corbeau. 19 That service consisted essentially in 'the obligation to collect, carry and distribute mail on behalf of all users throughout the territory of the Member State concerned, at uniform tariffs and on similar quality con- ditions, irrespective of the specific situ- 37. Ufex adds that in order to carry out the ations or the degree of economic profit- checks required by the Court of First ability of each individual operation'. 20 In Instance it is not necessary to consider the other words, La Poste was entrusted with cost a private operator not operating in a providing what was later defined, in reserved sector would incur in establishing Article 3 of Directive 97/67/EC on common from scratch a postal network comparable rules for the development of the internal to the network commanded by La Poste, which was clearly not a 'market network'. market of Community postal services and It would merely be necessary to ascertain the improvement of quality of service,21 as what services La Poste offered to Chrono- a 'universal service'. To that end, it had to post and assess the costs a private under- acquire substantial infrastructures and taking would incur in providing similar resources of various kinds (the 'postal services under normal market conditions. network'), to enable it to provide all users Since, for example, the service Chronopost with a basic postal service (at uniform offered to its customers included the use of tariffs and on similar quality conditions) 14 258 post offices belonging to La Poste to even in rural or sparsely populated areas send and collect dispatches, the costs which where the tariffs did not cover the cost of a private operator would have incurred for providing the service. The very fact that La the use of such premises (or rather of the Poste was entrusted with that task of part of such premises required to provide general economic interest justified granting the service offered by Chronopost) should a legal monopoly on the ordinary mail be assessed, including the prices charged for delivery service since, as the judgment in renting or buying them on the property Corbeau explains, 'the obligation on the market. part of the undertaking entrusted with that task to perform its services in conditions of economic equilibrium presupposes that it will be possible to offset less profitable sectors against the profitable sectors and

hence justifies a restriction of competition 40. The same network, which must in any from individual undertakings where the case be maintained in order to provide the economically profitable sectors are con- universal service, was essentially employed cerned'. 22 by La Poste to offer its own subsidiary SFMI-Chronopost (operating in the 'ex- press delivery' sector) logistical assistance which consists in making available to it the use of its own postal infrastructure 'for the collection, sorting, transport and delivery

Availing which involved very high fixed costs, was itself of La Poste's network, SFMI-Chrono- established and maintained thanks to vari- post offered its own customers a product ous forms of intervention by the French that was 'less sophisticated than other administration (of which La Poste was an products offered by the competitors and integral part until 1990), including, as we in particular than DHL's products', have seen, granting a legal monopoly on although it charged 'lower prices': in par- the ordinary mail delivery service (the ticular, the Commission noted that 'SFMI- 'reserved sector'). Chronopost normally collected the occa- sional customers' dispatches at the postal offices, while competitors collected dis-

of: — the clearance of postal items covered by a universal question consisted in making La Poste's service obligation from access points throughout the territory, public postal network (financed at least in — the routing and handling of those items from the part from the proceeds of the legal mon- postal network access point to the distribution centre, — distribution to the addresses shown on items'. opoly) available to SFMI-Chronopost to

43. As we have seen, according to the Court of First Instance, the Commission 45. In so ruling, however, the Court of First could not merely verify whether the remun- Instance in my view required the Commis- eration paid by SFMI-Chronopost covered sion to apply a test that was clearly the 'full costs' incurred by La Poste in unrealistic and consequently unsuitable providing its assistance; on the contrary, it for the purpose of determining in a similar 'should... have examined whether those full case whether there was State aid within the costs took account of the factors which an meaning of Article 87 EC. undertaking acting under normal market conditions should have taken into consider- ation when fixing the remuneration for the services provided. Hence, the Commission should at least have checked that the payment received in return by La Poste was comparable to that demanded by a private holding company or a private group 46. As we have seen, the establishment and of undertakings not operating in a reserved maintenance of a public postal network sector, pursuing a structural policy — such as that commanded by La Poste is not whether general or sectorial — and guided justified in purely market terms, since such by long-term prospects'. 24 a network is clearly designed to provide a universal service; moreover Ufex itself has said that 'a network such as that available to SFMI is clearly not a market network'. 25 This means that 'under normal market conditions' it is not rational from an 44. In short, the Court of First Instance economic point of view to acquire such a held that the Commission should have network, incurring the considerable fixed

costs that implies, merely in order to 48. Nor, in my view, can that conclusion provide other customers or subsidiaries be called into question by Ufex's contention with logistical assistance of the kind at that in order to carry out the checks issue in this case. The provision of such required by the Court of First Instance it assistance is economically justified only for is not necessary to consider the cost a an undertaking that is in any case obliged private undertaking not operating in a to maintain a public postal network similar reserved sector would incur in establishing to that commanded by La Poste in order to from scratch a postal network comparable assure a universal service (financed by the to the network commanded by La Poste but State), since only an undertaking that merely to assess the costs a private under- already had such a network could offer taking would incur in providing similar the logistical assistance in question by services under normal market conditions. I keeping the additional costs reasonably do not see how, without somehow acquir- low. ing a public postal network comparable to the network commanded by La Poste, a private operator could ever provide one of its own subsidiaries operating in the express delivery sector with logistical assistance which consists in making avail- able to it a postal network of that kind 'for the collection, sorting, transport and delivery of its dispatches'. 47. It follows that 'under normal market conditions' a private undertaking that was not obliged to maintain a public postal network comparable to that commanded by La Poste in order to guarantee the provision of a universal postal service (in return for adequate compensation from the State, for example in the form of a legal monopoly) would not have such a postal network and could not therefore provide 49. That being established, the next ques- one of its subsidiaries with logistical assist- tion is how to determine within the mean- ance of the kind at issue in this case. ing of the SFEI judgment whether in such a Consequently, in asking the Commission to case the remuneration received in return for find out what charge would have been providing logistical and commercial assist- made for such assistance by a hypothetical ance is 'less than that which would have private holding company or a leading been demanded under normal market con- company in a private group which was ditions'. The grounds of the judgment do not required to provide a universal postal not give any clear guidance in this con- service and so did not enjoy the benefit of a nection, merely stating that 'in order to reserved sector, the Court of First Instance determine whether a State measure con- erred in its interpretation of Article 87 EC stitutes aid, it is necessary to establish because it took as a benchmark for the whether the recipient undertaking receives purpose of determining whether there was an economic advantage which it would not State aid a private operator which would have obtained under normal market con- not in fact exist 'under normal market ditions. In examining that question, it is for conditions'. the national court to determine what is

50. The appellants, as we have seen, con- sider that the well-known criterion of the private investor in a market economy should be employed for the purpose. It should therefore be determined whether the remuneration paid by SFMI-Chronopost is less than the remuneration a private under- taking in the same position as La Poste, that is to say with a similar public postal network, would have demanded from one 52. However, I do not think that in a case of its own subsidiaries in return for provid- such as the present one the use of that ing the assistance in question. criterion can guarantee that the remuner- ation paid by the subsidiary does not constitute State aid. A private undertaking in the same position as La Poste would have to fix the amount of the remuneration so as to maximise the profits for the group as a whole, allowing naturally for the profits distributed by the subsidiary oper- 51. As the appellants have pointed out, that ating in the express delivery sector. 28 Such criterion appears to have been favoured by an undertaking might therefore be satisfied Advocate General Jacobs in his Opinion in with a lower return in pursuit of a general SFEI, in which he expressed the view that strategy designed to strengthen the subsidi- 'the provision by a public body of logistical ary's competitive position in the express and commercial assistance to an undertak- delivery market. Thus, it could give the ing in which it has a direct or indirect subsidiary the exclusive advantage of all holding on financial terms that are more the economies of scale arising from the use favourable than those which the undertak- of a postal network already established for ing could obtain from a comparable com- mercial investor constitutes aid for the purposes of Article 92(1)'. For that pur- 27 —Point61. 28 — For the purposes of the present argument, no account is taken of any other constraints, arising for example from specific tax or company provisions, which may affect the 26 — Paragraphs 60 and 61. prices charged for transactions within the group.

— on the one hand, as we have seen, the assistance in question could be offered 54. In fact, in order to prove without doubt only by the undertaking entrusted with that SFMI-Chronopost had benefited from the task of providing the universal such an economic advantage, the price paid postal service in France (thus by La to La Poste would have to be compared Poste), with the result that it is imposs- with the price La Poste could have obtained ible to find any data on the prices if it had offered its logistical and commer- charged by other operators for provid- cial assistance to the express delivery com- ing similar services; 31 and panies concerned on the market. In that way it could really be determined, first, 31 — In my view, this is an important difference between the whether SFMI-Chronopost had obtained present case and the cases of Sécuripost (Commission Decision 1999/676/EC of 20 July 1999 concerning pre- sumed aid allegedly granted by France to Sécuripost, OJ 1999 L 274, p. 37) and SNCM (Commission Decision 2002/149/EC of 30 October 2001 on the State aid awarded 29 — The remuneration might for example represent only the by France to the Société nationale maritime Corse-Médi- additional costs specifically incurred in providing the terranée (SNCM), OJ 2002 L JO, p. 66) cited by Ufex, in logistical and commercial assistance to the subsidiary and which the Commission was able to compare the prices might not cover an appropriate part of the fixed costs of charged or paid for certain services by the public under- maintaining the public postal network. takings suspected of having granted State aid with those 30 — Paragraph 60. charged or paid for similar services by other customers.

56. In the light of these considerations, I therefore take the view that in the absence of detailed indications as to the market value of the logistical and commercial assistance offered by La Poste, it is necess- ary to find other criteria by which to determine whether the remuneration for that assistance is fixed so as to favour SFMI-Chronopost, thus giving it 'an econ- omic advantage which it would not have obtained under normal market conditions'. 58. On that basis, I consider in particular that the possibility that SFMI-Chronopost was granted State aid can be precluded if the price charged covered all the additional costs, fixed and variable, specifically incurred by La Poste in order to provide the logistical and commercial assistance (that is to say, direct costs) and an adequate 57. To that end, I think it is legitimate for part of the fixed costs associated with present purposes to refer to objective and maintaining the public postal network (that is to say, common costs incurred in provid- ing the assistance in question and also the 32 — According to the contested decision, 'Chronopost was... universal service). 33 In this way it would be granted until that date exclusive access to the post office's network'. That is not disputed by Urex, although it claims that access to La Poste's network was available to other customers only from 18 March 1995 and not from 1 January of that year (see paragraphs 172 and 173 of 33 — Useful indications in this connection are given in the response, which referred in particular to the Commis- Article 14(2) and (3) of Directive 97/67, which sets out sion decision in Case No 1V/M.102, cited above, authoris- the cost accounting principles which universal service ing the creation of the common operator GNEW). providers must observe.

60. Finally, in the light of all the foregoing considerations, I consider that the Court of First Instance erred in law in interpreting

62. In accordance with the plea in ques- 34 — Conversely, it would also be possible to determine whether the remuneration paid by SFMI-Chronopost helped to tion, without needing to examine the other reduce the costs incurred by La Poste in providing the pleas, the judgment of the Court of First universal service. In that connection, it should be noted that in its recent judgment in Case C-340/99 TNT Traco Instance should therefore be set aside in so [2001] ECR 1-4109, on the application of Articles 82 and 86(1) and (2) EC in a case in some respects similar to the far as it in turn annulled Article 1 of the present one, the Court held that when the undertaking contested decision 'in so far as it finds that responsible for the universal postal service is 'itself supplying an express mail service not forming part of that the logistical and commercial assistance service... it must also ensure that neither all nor part of the costs of its express mail service are subsidised by the provided by La Poste to its subsidiary universal service, lest charges for the universal service and, consequently, the potential losses of that service be SFMI-Chronopost does not constitute State improperly increased' (paragraph 58). aid to SFMI-Chronopost'.

I - 7016

CHRONOPOST AND OTHERS v UFEX AND OTHERS

63. The case relating to the action for pleas submitted at first instance by Ufex annulment brought by Ufex should accord- against the Commission's assessment of the ingly be referred back to the Court of First logistical and commercial assistance pro- Instance so that it may rule in the light of vided by La Poste to its subsidiary. the indications given by this Court on the