In its judgment handed down on 13 October 2011, the Court of Justice overturned the General Court's ruling that appeals by Germany and Deutsche Post AG ("Deutsche Post") relating to a Commission injunction requesting information in state aid investigations were inadmissible.
At issue was an injunction sent by the European Commission to the German government requesting it to provide information regarding Deutsche Post's revenue and costs for the period from 1987 up to 2007. The injunction followed the refusal by the German authorities to send the requested data after 1995, taking the view that the Commission's examination should be confined to the period from 1989 to 1994 and that responding to the questionnaire up to 2007 would require a disproportionate investment in time and work.
Both the German government and Deutsche Post launched appeals before the General Court to seek the annulment of the injunction. The Commission, however, raised an objection of inadmissibility, claiming that the injunction to provide information does not constitute an act that can be challenged in court. The General Court agreed with the Commission, holding that a Commission injunction requesting information is an intermediate measure destined to prepare the final decision of the Commission whether or not state aid exists. Consequently, the actions for annulment were dismissed as inadmissible.
The Court of Justice disagreed with that point of view and overturned the ruling on the grounds that a request for information taken in the form of a decision is intended to produce binding legal effects and, hence, falls into the category of challengeable acts. According to the Court of Justice, a similar reasoning applies to companies involved in investigations requesting access to information in the Commission's files.
In the same manner as a decision of the Commission to refuse access to data can be challenged in court, the Commission's decision to request information would be capable of forming the subject-matter of an action for annulment.
Contrary to the Commission's claim, the Court of Justice did not consider the absence of a sanction for the Member State not complying with the injunction as decisive in assessing whether the injunction can be challenged. The Court of Justice held that the decisive factor in whether an action for annulment can be directed against an intermediate measure consists of the possibility to invoke the alleged illegality attached to an intermediate measure in support of an action against the final decision. However, as an action brought against the final decision regarding the alleged state aid to Deutsche Post would not be able to remove any illegality attached to the injunction requesting information, the injunction could be challenged in court.
Now that it has found the appeals admissible, the Court of Justice has referred the cases back to the General Court for judgment on the substantive issues of the appeals.
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