2012/636/EU: Commission Decision of 25 January 2012 Measures C 36/07 (ex NN 25/07... (32012D0636)
2012/636/EU: 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) Text with EEA relevance
- 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)
- I.
- PROCEDURE
- I.1.
- State aid Procedures
- I.1.1.
- 1999 Opening Decision and 2002 Decision
- I.1.2.
- Further complaints after 2002 Decision
- I.1.3.
- 2007 Extension decision
- I.1.4.
- Comments by Germany on 2007 Extension decision
- I.1.5.
- Comments by third parties to the 2007 Extension decision and comments by Germany on third party comments
- I.1.6.
- Procurement of external expert
- I.1.7.
- Comments by Germany on appropriate length of investigation period
- I.1.8.
- Information request of 17 July 2008
- I.1.9.
- Reminder for information of 12 August 2008 and 22 August 2008
- I.1.10.
- Information injunction of 30 October 2008
- I.1.11.
- Submission of accounting information for the period 1990-2007
- I.1.12.
- Submission of WIK Study
- I.1.13.
- Comments following annulment of 2002 Decision
- I.1.14.
- 2011 Extension decision
- I.2.
- Antitrust Procedures
- I.3.
- Court Procedures
- I.3.1.
- Case T-421/07 Deutsche Post AG v Commission
- I.3.2.
- Case T-570/08 Deutsche Post AG v Commission and Case T-571/08 Germany v Commission
- I.3.3.
- Case C-463/10 P Deutsche Post AG v Commission and Case C-475/10 P Germany v Commission
- I.3.4.
- Case T-344/10 UPS v Commission
- I.3.5.
- Case T-388/11 Deutsche Post AG v Commission
- II.
- DETAILED DESCRIPTION OF PUBLIC MEASURES
- II.1.
- Pension subsidy in the context of social benefits and contribution schemes for civil servants and private employees
- II.1.1.
- Social benefits for civil servants
- II.1.2.
- Financing of civil servants' social benefits in the period 1989-1994 at POSTDIENST
- II.1.3.
- Financing of social benefits for DPAG's civil servants since 1995
- Figure 1
- Financing of Pension fund (million EUR)
- II.1.4.
- Statutory social insurances for private employees and supplementary pension insurance for Deutsche Post's private employees
- Figure 2
- Compulsory social contribution rates in percentage of private employee's gross wage (see also the Annex)
- II.2.
- Public transfers and guarantee in the context of Deutsche Post's exclusive right and universal postal service obligations
- II.2.1.
- Exclusive right until 2007
- II.2.2.
- Universal postal service obligation until 2007
- II.2.3.
- Public transfers
- II.2.4.
- Public guarantee for debt obligations issued before 1995
- II.3.
- Revenues from regulated prices as additional compensation for pension costs and universal services' net costs
- II.3.1.
- 2002 Price cap decision
- II.3.1.1. Excess wages (burden #1)
- II.3.1.2. Excess social contributions (burden #2)
- II.3.1.3. Supplementary pension insurance for private employees (burden #4)
- II.3.1.4. Miscellaneous excess social costs (burdens #6, 7, 8)
- II.3.1.5. Universal service burdens (#3 and 5)
- II.3.2.
- 2007 and 2011 Price cap decisions
- II.4.
- Financial results of DPAG
- III.
- GROUNDS FOR INITIATION OF PROCEDURE
- III.1.
- Pension subsidy
- III.2.
- Universal service compensation
- IV.
- WIK STUDY
- IV.1.
- Description of the 2009 regulatory accounts
- IV.1.1.
- The revenues
- Figure 3
- Average revenue shares in the period 1990-2007 (based on nominal values)
- IV.1.2.
- The calculation of burdens in the 2009 regulatory accounts
- Figure 4
- Claimed universal service burdens with 2009 regulatory accounts compared to approved burdens with 2002 Price cap decision (annual average, million EUR nominal value)
- IV.1.3.
- The profit margins in the 2009 regulatory accounts
- Figure 5
- Average returns on sales based on 2009 regulatory accounts
- IV.2.
- Profit benchmarking
- IV.2.1.
- Deutsche Post's value chain: low-tech operations and low level of business risk
- IV.2.1.1. The value chain of a low-tech business
- IV.2.1.2. Low risk due to public measures
- IV.2.2.
- Quantification of profit benchmarks
- IV.3.
- Review of cost allocation
- IV.4.
- Adjustment of 2009 regulatory accounts
- IV.4.1.
- Adjustment of universal service revenues
- IV.4.2.
- Adjustment of universal service costs
- IV.4.2.1. Dissolution of accounts
- IV.4.2.2. Adjustment of burdens between price-regulated and non-price regulated services
- IV.4.2.3. Off-balance costs with supplementary pension insurance (burden #4)
- IV.4.3.
- Adjustment of capital costs to reasonable profit
- IV.4.3.1. Period 1996 to 2007
- IV.4.3.2. Period 1990 to 1995
- IV.4.4.
- Conclusions
- Figure 6
- Comparison of annual excess results of universal services for the period 1990-2007 (million EUR, nominal annual values)
- V.
- COMMENTS BY INTERESTED PARTIES
- V.1.
- Right to use official German stamps
- V.2.
- Pension subsidy
- V.3.
- Universal service compensation
- V.4.
- Excessive letter prices
- V.5.
- Profit margins
- VI.
- COMMENTS BY GERMANY
- VI.1.
- Comments on pension subsidy
- VI.1.1.
- No financial advantage from compensation of excess social costs
- VI.1.2.
- No financial advantage compared to pre-1995 situation
- VI.1.3.
- Pension subsidy as existing aid pursuant to Article 108(1)
- VI.1.4.
- Pension subsidy as compatible compensation for legacy costs pursuant to Article 107(3) TFEU
- VI.1.4.1. Benchmark to be based on ‘competitive’ social costs
- VI.1.4.2. Insufficient level of price-regulated revenues to cover excess social costs
- (a)
- Under-compensation of excess social costs based on expert study
- (b)
- 2009 regulatory accounts confirm insufficiency of price-regulated revenues to cover excess social costs
- VI.2.
- Comments on universal service compensation
- VI.2.1.
- Public transfers
- VI.2.2.
- Public guarantee
- VI.2.3.
- Exclusive right
- VI.3.
- Comments on WIK study
- VI.3.1.
- WIK study confirms the necessity of public transfers as compensation for net costs of universal service obligations up to 1995
- VI.3.2.
- Defective profit benchmarking
- VI.3.3.
- Inappropriate cost allocation and valuation
- VI.4.
- Comments on interested parties' comments
- VI.4.1.
- Pension subsidy
- VI.4.2.
- Universal service compensation
- VI.4.3.
- Wage level
- VII.
- AID ASSESSMENT OF PENSION SUBSIDY
- VII.1.
- Assessment of existence of aid pursuant to Article 107(1) TFEU
- VII.1.1.
- Financial advantage from 1995 pension reform
- VII.1.2.
- Distortion of competition and affectation of trade
- VII.2.
- Assessment of existing aid pursuant to Article 108(1) TFEU
- VII.3.
- Assessment of compatibility pursuant to Article 107(3)(c) TFEU
- VII.3.1.
- Market opening of the postal sector as an objective of common interest
- VII.3.2.
- Necessity and proportionality of the pension subsidy
- VII.3.2.1. Level of wage-based social security contributions of other undertakings in the mail/parcel sector
- (a)
- Calculation of the benchmark rate
- Figure 7
- Determination of benchmark rate for DP's social contribution
- (b)
- Calculation of the wage base
- Table 6
- Calculation of civil servants' gross wage (based on 2006 contribution rates)
- VII.3.2.2. Establishment of the wage-based social security contributions borne by Deutsche Post for its civil servants
- (a)
- Deutsche Post's contribution in the period 1995-2002
- (b)
- Deutsche Post's contribution since 2003
- VII.3.2.3. Comparison
- (a)
- The period 1995-2002
- (b)
- The period since 2003
- VII.3.2.4. Preliminary conclusion on necessity and proportionality
- VII.3.2.5. Impact of the particular competitive and regulatory environment on necessity and proportionality
- VII.3.3.
- Conclusion
- Figure 8
- Comparative advantage in social contribution rate with non-price regulated services (contribution rates in percentage of civil servants' gross wage)
- VII.3.4.
- Response to the arguments presented by Germany
- VII.3.4.1. The Commission is right to include the employees' contribution into the benchmark rate and not to adjust the wage level to a ‘competitive wage’
- VII.3.4.2. On Germany's claim that price-regulated revenues have not been sufficient to finance the claimed burdens
- (a)
- The 2002, 2007 and 2011 price cap decisions are based on the regulatory accounts submitted by Deutsche Post and approve all burdens that have been claimed
- (b)
- The study by Professor Weber does not support the claim that the profits from the regulated universal services were insufficient to cover the burdens that Deutsche Post had claimed
- (c)
- No proof of under-compensation of excess social costs based on WIK study
- Figure 9
- Calculation of ROS for price-regulated services based on WIK Study
- (i) More appropriate allocation of costs to commercial services
- (ii) Profit benchmarking in consideration of Deutsche Post's risk position
- (c)
- Conclusions
- VII.3.5.
- Elimination of incompatible aid for the period from 1 January 2003
- VIII.
- AID ASSESSMENT OF PUBLIC TRANSFERS
- VIII.1.
- Assessment of existence of aid pursuant to Article 107(1) TFEU
- VIII.1.1.
- Financial advantage granted by public transfers
- VIII.1.1.1. Germany's claim of Ablieferungen as special charge
- VIII.1.1.2. Germany's claim of public transfers in accordance with private-investor behaviour
- VIII.1.1.3. Germany's claim of compensation of net costs from universal service obligation
- VIII.1.2.
- Conclusions on existence of aid
- VIII.2.
- Assessment of existing aid pursuant to Article 108(3) TFEU
- VIII.3.
- Assessment of compatibility pursuant to Article 106(2) TFEU
- VIII.3.1.
- Entrustment with a service of general economic interest
- VIII.3.2.
- Necessity and proportionality of public transfers
- IX.
- THE PUBLIC GUARANTEE FOR DEBT OBLIGATIONS ISSUED BEFORE 1995 CONSTITUTES EXISTING AID PURSUANT TO ARTICLE 108(3) TFEU
- X.
- CONCLUSIONS
- Article 1
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- ANNEX
- Methodology for Calculation of incompatible aid (million EUR); Provisional calculation based on the data available as at 31 December 2011 for the period 2003- 2010
- (1)
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