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19.10.2012 Official
Journal
of
the
European
Union
L
289/1
II
(Non-legislative acts)
DECISIONS
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)
THE EUROPEAN COMMISSION,
aid to Deutsche Bundespost POSTDIENST (hereafter
POSTDIENST).
Having regard to the Treaty on the Functioning of the European
Union, and in particular the first subparagraph of
Article 108(2) ( 1 ) thereof,
(2) Following
the
opening
of
proceedings
on
23
October
Having called on interested parties to submit their comments
1999 (hereafter 1999 Opening Decision), Germany
pursuant to the provision(s) cited above ( 2 ) and having regard to
submitted comments on 16 September 1999.
their comments,
Following publication, the Commission received
comments from 14 interested parties, which were duly
transmitted to the German Government by letter dated
Having regard to the Agreement on the European Economic
15 December 1999 providing it with an opportunity to
Area and in particular Article 62(1)(a) thereof,
make its own observations concerning these comments.
The German authorities responded by letter dated
1 February 2000, which was registered as received on
Whereas:
2 February 2000.
I. PROCEDURE
I.1. State aid Procedures
(3) The
Commission
adopted
a
final
negative
decision
on
I.1.1. 1999 Opening Decision and 2002 Decision
19 June 2002 ( 3 ) (hereafter 2002 Decision) finding that
POSTDIENST and its successor Deutsche Post AG
(1) In
1994
United
Parcel
Service
(hereafter
UPS)
filed
a
(hereafter DPAG, while POSTDIENST and DPAG will
complaint concerning the granting of unlawful State
be hereafter jointly referred to as Deutsche Post) priced
door-to-door parcels below incremental costs and that its
( 1 ) With effect from 1 December 2009, Articles 87 and 88 of the EC
aggressive pricing policy did not to fall within Deutsche
Treaty have become Articles 107 and 108, respectively, of the TFEU.
Post's universal service obligation. The resulting losses of
The two sets of provisions are, in substance, identical. For the
EUR 572 million were ultimately financed, in contra
purposes of this decision, references to Articles 107 and 108 of
vention of Articles 106 and 107 TFEU, by the State
the TFEU should be understood as references to Articles 87 and
resources which were granted to Deutsche Post in
88, respectively, of the EC Treaty where appropriate.
( 2 ) Invitation of 17 August 1999 to submit comments pursuant to
various forms (e.g. public transfers from sister company
Article 88(2) of the EC Treaty on aid C 61/99 (ex NN 153/96)
Deutsche Bundespost TELEKOM (hereafter TELEKOM),
— State aid to Deutsche Post AG (OJ C 306, 23.10.1999, p. 25);
public guarantees for loans, and public subsidies to
invitation of 19 October 2007 to submit comments pursuant to
finance the civil servants' pensions).
Article 88(2) of the EC Treaty on aid C 36/07 (ex NN 25/07) —
State aid to Deutsche Post AG (OJ C 245, 19.10.2007, p. 21); and
invitation of 11 May 2011 to submit comments pursuant to
( 3 ) Commission Decision 2002/753/EC of 19 June 2002 on measures
Article 108(2) TFEU on aid C 36/07 — State aid to Deutsche
implemented by the Federal Republic of Germany for Deutsche Post
Post AG (OJ C 263, 7.9.2011, p. 4).
AG (OJ L 247, 14.9.2002, p. 27).

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L 289/2
EN
Official Journal of the European Union
19.10.2012
(4) Following
the
Commission's
order,
Germany
recovered (11) The
Commission
services
sent
information
requests
to
the incompatible State aid of EUR 572 million from
Germany on 11 November 2004 and 25 April 2005.
DPAG. Deutsche Post challenged the decision in the
Germany submitted its answers on 17 December 2004
Union Courts.
and 23 June 2005 respectively.
(5) In
its
2008
judgment
( 1 ), the General Court annulled the
I.1.3. 2007 Extension decision
2002 Commission Decision because the Commission
failed to carry out a comprehensive analysis of all
(12) Following the further complaints, the Commission
universal service revenues and costs to determine
informed Germany by letter of 12 September 2007 ( 3 )
whether Deutsche Post had been under- or over-compen
(hereafter 2007 Extension decision) of its decision to
sated.
extend the proceedings that had originally been
initiated in 1999. The objective of the 2007 Extension
decision was to include the newly submitted information
and to comprehensively address all potential distortions
(6) Germany
subsequently
paid
back
the
recovered
State
aid
of competition which resulted from the public measures
of EUR 572 million plus accrued interest to Deutsche
that were granted to Deutsche Post (see Section I.1.14 for
Post.
more details on the public transfers, the public guar
antees, the pension subsidies, and the exclusive right
for the provision of letter services).
(7) On
2
September
2010,
the
Court
of
Justice
dismissed
the
Commission's appeal against the General Court's judg
ment (
(13) The
Commission
considered
it
necessary
to
reconstruct

2 ).
in detail Deutsche Post's accounts for the period from
1990 to 2007 to gain clarity on the impact of the public
measures on the revenues and costs of the different
I.1.2. Further complaints after 2002 Decision
services provided by Deutsche Post.

(8) On 13 May 2004, UPS lodged a further complaint
concerning unlawful State aid granted to Deutsche Post
following the 2002 Decision. UPS argued that the 2002
I.1.4. Comments by Germany on 2007 Extension decision
Decision failed to examine all measures listed in the
(14) Germany
submitted
its
comments
on
14
December
2007
original 1994 complaint, and that Deutsche Post
and Deutsche Post challenged the validity of the 2007
enjoyed significantly higher financial benefits than the
Extension decision (see also Section I.3.1).
incompatible aid of EUR 572 million. In addition, UPS
is of the opinion that Deutsche Post used State resources
to expand its parcel operations (e.g. for the purchase of
other companies) and to sell services at excessively low
I.1.5. Comments by third parties to the 2007 Extension
transfer prices to its subsidiaries Postbank AG and
decision and comments by Germany on third party
Deutsche Post euro Express GmbH & Co. OHG (hereafter
comments
DPEED), which have been active respectively in banking
services and marketing of business parcels under the
(15) On
16
November
2007
UPS
and
TNT
submitted
their
brand name DHL.
comments.
(9) The
Commission
services
sent
information
requests
to (16) After an initial request for a delay extension on
Germany on 9 November 2004 and 1 April 2005.
20 December 2007, Germany eventually submitted on
Germany submitted its answers on 2 December 2004
12 March 2008 its comments on TNT's and UPS' obser
and 3 June 2005 respectively.
vations.
I.1.6. Procurement of external expert
(10) On 16 July 2004, TNT Post AG & Co KG (hereafter
TNT) filed a complaint also alleging that Deutsche Post
(17) On
23
January
2008,
the
Commission
published
an
invi
sold services at excessively low transfer prices to
tation to tender for an expert study to assist the
Postbank AG. It claimed that, whereas Postbank AG
Commission in determining whether Deutsche Post was
only paid variable costs for the provided services,
overcompensated for its universal service obligations for
Deutsche Post financed the common fixed costs of the
the period 1990-2007 ( 4 ).
distribution network entirely out of the revenues of its
letter monopoly.
( 3 ) Invitation of 12 September 2007 to submit comments pursuant to
Article 88(2) of the EC Treaty on aid C 36/07 (ex NN 25/07) —
( 1 ) Case T-266/02 Deutsche Post AG v Commission [2008] ECR II-1233.
State aid to Deutsche Post AG (OJ C 245, 19.10.2007, p. 21).
( 2 ) Case C-399/08 P European Commission v Deutsche Post AG [2010]
( 4 ) Contract notice 2008/S 15-018228 published on 23 January 2008
ECR I-0000.
(OJ S 15, 23.1.2008).

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EN
19.10.2012 Official
Journal
of
the
European
Union
L
289/3
(18) On
18
June
2008,
the
Commission
concluded
a
contract
(24) In
its
submission
of
14
August
2008,
Germany
main
with WIK Consult GmbH, an accounting expert for the
tained that there was no reason for examining the
postal sector.
revenues and losses of Deutsche Post for the period
after 1994. On 22 August 2008, the Commission
reserved the right to adopt an information injunction
I.1.7. Comments by Germany on appropriate length of inves
pursuant to Article 10(3) of Council Regulation (EC)
tigation period
No 659/1999 of 22 March 1999 laying down detailed
rules for the application of Article 93 of the EC Treaty ( 3 )
(19) By letters of 10 June 2008 and 18 June 2008, Germany
if Germany did not provide the requested information.
signalled its disagreement with the envisaged length of
the investigation period (1990-2007) and maintained
that it would be sufficient to limit the investigation to
(25) With
the
submission
of
29
September
2008,
Germany
the period of 1990 until 1994 when the public transfers
presented the results of a further expert opinion —
were granted because the losses in that period were
which was eventually submitted on 2 October 2008 —
higher than the public transfers so that Deutsche Post
to support the position that an accounting analysis after
did not benefit from any overcompensation.
1994 was not necessary and therefore the appropriate
Furthermore, the provision of accounting information
investigation period should be 1990-1994 ( 4 ).
for the period after 1994 would be disproportionate as
the Community framework for State aid in the form of
public service compensation (hereafter 2005 Frame
(26) On
28
October
2008,
Germany
submitted
information
work) ( 1 ) would limit the period for the calculation of
on the public guarantee and the pension subsidy.
overcompensation to a maximum of four years.
I.1.10. Information injunction of 30 October 2008
(20) On
27
June
2008,
Germany
submitted
an
expert
opinion
(27) The
Commission
did
not
accept
Germany's
arguments
on the obligation of the Commission to investigate
and insisted that an analysis until 2007 was necessary
separately the public transfers, the public guarantees,
to fully appreciate the competitive effects of the granted
and the pension subsidy ( 2 ). Furthermore, it claimed
public measures. Following the two reminders for
that an investigation of accounting data would be
information of 12 August 2008 and 22 August 2008,
unnecessary for the assessment of the public guarantee
the Commission issued an information injunction on
and of the pension subsidy.
30 October 2008 to enjoin Germany to deliver all
necessary accounting information for the whole period
1990-2007.
(21) The
German
authorities
affirmed
the
same
position
in
the
meeting with the Commission services on 29 May 2008
and 15 July 2008.
(28) Germany
and
Deutsche
Post
challenged
the
validity
of
the information injunction (see Section I.3.2).
I.1.8. Information request of 17 July 2008
(29) On 27 November 2008, Germany submitted the
(22) The Commission sent an information request to
requested accounting information for the period 1990-
Germany on 17 July 2008 on all public measures
1994. On 5 and 16 December 2008, Germany updated
under investigation including a questionnaire on
the accounting information which had been submitted
revenues and costs of Deutsche Post for the period
on 27 November 2008.
1990-2007. The information request was prepared in
cooperation with WIK Consult. On 5 August 2008,
Germany asked for an undefined deadline extension
I.1.11. Submission of accounting information for the period
because the availability of certain data would have to
1990-2007
be checked in advance.
(30) After a meeting between Mr Pfaffenbach, German
Secretary of State, Mr Appel, CEO of DPAG, and the
Commissioner with responsibility for Competition
I.1.9. Reminder for information of 12 August 2008 and
Policy on 6 February 2009, Germany and Deutsche
22 August 2008
Post agreed to provide accounting information for the
(23) On
12
August
2008,
the
Commission
explained
why
the
period after 1994.
investigation on the costs and revenues of Deutsche Post
should be effected within the period 1990-2007 and
insisted on the submission of the requested information.
(31) On
3
March
2009,
Germany
submitted
a
first
set
of
accounting information for the whole investigation
period 1990-2007.
( 1 ) Community framework for State aid in the form of public service
compensation (OJ C 297, 29.11.2005, p. 4).
( 2 ) Opinion of Prof. Ehlermann, WilmerHale (16 June 2008), ‘Die Verp
( 3 ) OJ L 83, 27.3.1999, p. 1.
flichtung der europischen Kommission zur Einzelprüfung angeb
( 4 ) Opinion of Prof. Ehlermann, WilmerHale (10 October 2008), ‘Die
licher Beihilfen an die Deutsche Post AG’ (on the obligation of the
Periodizitt der berkompensationsrechnung gem Artikel 86 (2)
European Commission to investigate separately the alleged State aid
EG’ (on the periodicity of the calculation of overcompensation
measures in favour of Deutsche Post AG).
according to Article 86(2) EC).

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L 289/4
EN
Official Journal of the European Union
19.10.2012
(32) Meetings
between
Deutsche
Post
and
the
Commission
I.1.14. 2011 Extension decision
services took place on 3 March 2009 in Brussels as
well as on 12 March 2009, 2 April 2009, 28 May
(40) By
letter
dated
10
May
2011,
the
Commission
notified
2009, 23 June 2009, and 18 September 2009 in
Germany of its decision to extend the procedure laid
Bonn. Germany submitted the respective presentations
down in Article 108(2) TFEU that had originally been
by Deutsche Post on 26 March 2009, 7 May 2009,
initiated in 1999 and extended in 2007, in order to
and 22 June 2009.
conduct an in-depth investigation with regard to the
pension subsidies that Deutsche Post has received since
1995 (hereafter 2011 Extension decision).
(33) Following those meetings and two lists of questions
which the Commission services submitted to Deutsche
Post on 4 June 2009 and 30 July 2009, Germany
provided updated accounting information and further
clarifications on 9 July 2009, 31 July 2009, 17 August
(41) After
an initial request
for a deadline extension on
2009, 8 September 2009, 10 September 2009 and
23 May 2011, Germany submitted its comments on
15 October 2009.
29 July 2011, together with further expert studies on
the necessity of a calculation of overcompensation to
prove the alleged cross-subsidisation
( 4 ), on the
(34) On 16 and 24 September 2009, the Commission
comparison between social costs paid by Deutsche Post
services submitted further questions to which Germany
and market-average social costs ( 5 ), as well as on the
provided the answers by 14 October 2009.
amount of excess social costs borne by Deutsche Post ( 6 ).
I.1.12. Submission of WIK Study
(35) Due to the delay in the provision of the accounting data,
the contract with WIK Consult had to be prolonged
(42) On
4
October
2011,
UPS
submitted
its
comments.
They
several times. WIK Consult finally submitted the expert
were followed by comments submitted by Free and Fair
study (hereafter WIK study) on 9 November 2009.
Postal Postal Initiative (hereafter referred to as FFIP) on
5 October 2011 and comments submitted by Bundes
verband Internationaler Express und Kurierdienste
(36) On 14 and 21 January 2010, Germany submitted
(hereafter referred to as BIEK) on 7 October 2011. On
comments on the WIK study. On 11 February 2010,
13 October 2011, the Commission communicated the
Germany submitted an expert study by KPMG (hereafter
comments by interested parties to Germany.
KPMG study) on the legal nature of the Ablieferungen
(hand-over payments) ( 1 ) that Deutsche Post had to pay
to the public budget until 1995 and an expert study by
Deloitte ( 2 ) (hereafter Deloitte-I study) on the profit
benchmark used in the WIK study.
(43) On 14 November 2011, Germany submitted its
comments on the third parties' observations.
(37) On
23
April
2010,
Germany
submitted
a
further
study
by Deloitte (hereafter Deloitte-II study) that provided its
views on the level of reasonable profit to be used for
Deutsche Post's universal services.
(44) On
18
November
2011,
the
Commission
sent
a
further
information request concerning details of the pension
financing for the period after 2007. On 2 January
(38) On 9 August 2010, Germany submitted further
2012 and 19 January 2012, Germany submitted
comments on the calculation of overcompensation and
replies. On 16 December 2011, the Commission
the application of the market investor principle to the
submitted to Germany an expert study by Charles River
assessment of the public transfers.
Associates concerning profit benchmarking ( 7 ) (here
inafter CRA study) for comments to which Germany
I.1.13. Comments following annulment of 2002 Decision
replied on 16 January 2012.
(39) On
5
November
2010,
Germany
submitted
a
further
( 4 ) Opinion of Prof. Ehlermann, WilmerHale (19 July 2011), ‘Die Verp
expert opinion that analysed the significance of the
flichtung der Europischen Kommission zum Nachweis einer ber
judgment in Case C-399/08 Commission v Deutsche Post
kompensation bei der beihilferechtlichen Beanstandung angeblicher
(see Section I.3.5) for the current investigation (
Quersubventionierungen’ (on the necessity of the calculation of over

3 ).
compensation to prove an alleged cross- Subsidisation)
( 5 ) Opinion of Prof. Ehlermann, WilmerHale (19 July 2011), ‘Der
( 1 ) See Section VI.2.1 for a detailed explanation of the Ablieferungen.
Vergleich der effektiv getragenen Sozialkosten mit den marktüb
( 2 ) Expert Study by KPMG (11 February 2010), ‘Deutsche Post AG —
lichen Sozialkosten im laufenden Beihilfeprüfverfahren im Fall C
Rechtliche Qualifikation der Ablieferungen nach § 63 PVerfG’;
36/07 (Deutsche Post AG)’ (on a comparison between social costs
Expert Study by Deloitte (9 February 2010), ‘Assessment of the
paid by Deutsche Post and market-average social costs).
WIK consult report for the European Commission — A report for
( 6 ) Opinion of Prof. Weber, WHU — Otto Beisheim School of
Deutsche Post AG’.
Management Vallendar (July 2011), ‘Gutachten zur Ermittlung der
( 3 ) Opinion of Prof. Ehlermann, WilmerHale (5 November 2010),
Hhe der über das Marktniveau hinausgehenden Sozialkosten der
‘Bedeutung des Urteils des Gerichtshofes in der Rechtssache
DPAG’ (on the calculation of DPAG's excess social costs); an
C-399/08 Kommission v Deutsche Post AG für das laufende Beihil
update to the study was submitted on 2 January 2012.
feprüfverfahren im Fall C 36/2007 Deutsche Post AG’ (on an
( 7 ) Charles River Associates (March 2011), ‘Estimating a reasonable
analysis of the significance of the Court judgment in Case C-
profit margin for provision of letter services’, submitted by
399/08 Commission v Deutsche Post for the current investigation).
Belgium in State aid Case SA.14588 State aid to bpost.

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EN
19.10.2012 Official
Journal
of
the
European
Union
L
289/5
I.2. Antitrust Procedures
(52) On
16 July
2010,
the
General
Court
declared
both
actions as inadmissible because neither Deutsche Post's
(45) Based
on
UPS'
1994
complaint,
the
Commission
found
nor Germany's procedural rights could have been
that Deutsche Post infringed Article 102 TFEU by
infringed by the issuance of the information injunction.
predatory pricing for Business-to-Consumer parcels in
the period 1990-1995. A fine of EUR 24 million was
imposed on Deutsche Post ( 1 ).
I.3.3. Case C-463/10 P Deutsche Post AG v Commission
and Case C-475/10 P Germany v Commission
(46) On
22
April
2004,
UPS
lodged
a
further
complaint
(53) On
27
September
2010,
Deutsche
Post
and
Germany
regarding Deutsche Post's abuse of dominant position
appealed the GC's judgment and maintained that the
under Article 102 TFEU. UPS claimed that Deutsche
information injunction infringed their rights. On
Post had charged excessive stamp prices for its
13 October 2011, the Court of Justice overruled the
regulated letter services.
General Court's judgment of 16 July 2010
( 4 ).
Consequently, the case was sent back to the GC and is
currently pending.
(47) During
its
investigations,
the
Commission
received
on
5 November 2004 documents relating to the decision
by the German postal regulatory agency (hereafter
Postal regulator) on the price cap for Deutsche Post's
I.3.4. Case T-344/10 UPS v Commission
regulated letter services for the period starting
1 January 2003 (hereafter 2002 Price cap decision). By
(54) On
20
August
2010,
UPS
lodged
an
application
with
the
letter of 13 June 2007, Germany agreed that those
General Court claiming an unlawful failure to act by the
documents could also be used in the State aid procedure.
Commission in respect of the 2007 State aid investi
gation. Given that a period of almost three years had
lapsed since the 2007 Extension decision, UPS believed
that the Commission had had ample opportunity to
(48) On
25
March
2008,
the
Commission
decided
to
close
investigate the abovementioned measures and to assess
the antitrust investigation because of the limited like
the circumstances of facts and law in order to adopt a
lihood of establishing such an infringement under
final decision and close the investigation procedure. That
Article 102 TFEU (
case is still pending.

2 ).
I.3. Court Procedures
I.3.5. Case T-388/11 Deutsche Post AG v Commission
I.3.1. Case T-421/07 Deutsche Post AG v Commission
(55) On
22
July
2011,
Deutsche
Post
challenged
the
validity
of the 2011 Extension decision because it considers that
(49) Deutsche Post challenged the validity of the 2007
the Commission has manifestly erred in its preliminary
Extension decision, claiming that the 2002 Decision
assessment of the pension subsidy as aid within the
created legitimate expectations that the Commission
meaning of Article 107(1) TFEU and as a new aid
would not resume its investigations.
measure in the meaning of Article 108(1) TFEU. That
case is still pending.
(50) On
8
December
2011,
the
General
Court
rejected
that
challenge as inadmissible ( 3 ).
II. DETAILED DESCRIPTION OF PUBLIC MEASURES
(56) Deutsche
Post
has
been
granted
public
support
in
form
I.3.2. Case T-570/08 Deutsche Post AG v Commission and
of several different measures since 1989:
Case T-571/08 Germany v Commission
(51) Germany as well as Deutsche Post challenged the validity
of the Commission's information injunction of
— Pension subsidy based on:
30 October 2008 because they considered that the
information injunction requested irrelevant information
and put a disproportionate burden on Deutsche Post.
— Postpersonalrechtsgesetz 1994 ( 5 ) (hereafter Post
( 1 ) Commission Decision 2001/354/EC of 20 March 2001 relating to a
PersRG 1994)
proceeding under Article 82 EC Treaty (Deutsche Post AG) (OJ
L 125, 5.5.2001, p. 27).
( 2 ) Commission Decision of 25 March 2008 — Case COMP/37.821 —
( 4 ) Joined Cases C-463/10 P and C-475/10 P Deutsche Post AG v
UPS and DVPT/DPAG, recitals 6, 63, 66, 70-72.
European Commission [2010] ECR I-0000.
( 3 ) Case T-421/07 Deutsche Post AG v European Commission [2011] ECR
( 5 ) Gesetz zum Personalrecht der Beschftigten der früheren Deutschen
II-0000.
Bundespost of 14. September 1994 (BGBl. I S. 2325).

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L 289/6
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Official Journal of the European Union
19.10.2012
— Public transfers and guarantees based on:
insure himself with a voluntary complementary
insurance or to pay his share of the health care
expenses out of his own pocket.
— Postverfassungsgesetz
1989 ( 1 ) (hereafter
PostVerfG 1989)
II.1.2. Financing of civil servants' social benefits in the period
— Postumwandlungsgesetz 1994 (
1989-1994 at POSTDIENST

2 ) (hereafter
PostUmwG 1994)
(59) After
the first postal reform of 1989, pursuant to
Article 54(2) PostVerfG 1989, POSTDIENST, TELEKOM
and POSTBANK had to fully finance the pension
— Exclusive right and price regulation based on:
payments and health expenses of the retired civil
servants who were allocated to the respective sections
on basis of their former activities. That provision lays
— Gesetz über das Postwesen 1989 ( 3 ) (hereafter
down that whereas the claim of the civil servant
PostG 1989)
continues to be directed against the State, the State has
the right to claim the entire amount from POSTDIENST,
TELEKOM and POSTBANK respectively.
— Postgesetz 1997 (hereafter PostG 1997)
II.1. Pension subsidy in the context of social benefits
II.1.3. Financing of social benefits for DPAG's civil servants
and contribution schemes for civil servants and
since 1995
private employees
(60) With
the
second
postal
reform
of
1994,
civil
servants
(57) The
pension
subsidy
has
financed
since
1995
a
major
who had worked for POSTDIENST were, pursuant to
share of the pensions for Deutsche Post's retired civil
Article 2(1) PostPersRG 1994, transferred to DPAG.
servants. To fully apprehend the effects of the pension
Thereby, the civil servants kept, pursuant to Article 2(3)
subsidy in the later assessment, the following sections
PostPersRG 1994, their existing legal status. DPAG took
will describe in more detail the civil servants' social
over, pursuant to Article 1(1) PostPersRG 1994, all
benefits and contributions in comparison to the
employer's rights and obligations from the federal State
compulsory social insurances for employees under
and assumed, pursuant to Article 2(3) PostPersRG 1994,
private law contracts (hereafter: private employees).
all the civil servants' proprietary claims.
II.1.1. Social benefits for civil servants
(61) Pursuant
to
Article
15
PostPersRG
1994,
the
payment
of
(58) Civil
servants
are
entitled
to
old
age
pensions,
health
care
pension and health expenses to retired civil servants was
and nursing care. The benefits for Deutsche Post's civil
taken over by a newly created pension fund for Deutsche
servants are equal to the benefits which are granted to all
Post's civil servants. On 1 July 2001, the pension funds
other civil servants:
for Deutsche Post, Deutsche Telekom AG, and Postbank
AG were merged into the ‘Postbeamtenversorgungskasse’
(hereafter jointly referred to as Pension fund for the
— The level of the pension is pre-defined, pursuant to
whole period since 1 January 1995).
Article 14 BeamtVG ( 4 ), at a certain percentage of the
last salary that the civil servant earns. Thus, for
example, a civil servant who retired in 2010 and
had worked the required number of years will
(62) Pursuant
to
Article
16(1)
PostPersRG
1994,
Deutsche
Post had to pay a yearly contribution of EUR 2 045
receive a pension that is equal to 71,75 % of his
million to the Pension fund for the period 1995-1999
last salary.
which totals EUR 10 225 million. From 2000 onwards
and based on Article 16(2) PostPersRG 1994, Deutsche
Post has had to pay a yearly contribution of 33 % of the
— Civil servants are entitled to reimbursement of 50 %
sum of the incurred civil servant wages to the Pension
to 70 % of health and nursing care expenses, while
fund (e.g. from EUR 735 million in 2000 to EUR 540
they have to assume the remaining expenses them
million in 2010).
selves. The exact breakdown of health care costs
depends on several criteria such as the number of
children. The civil servant can choose either to
(63) The pension subsidy has covered, pursuant to
( 1 ) Gesetz über die Unternehmensverfassung der Deutschen Bundespost
Article 16(2) PostPersRG 1994, the remaining deficit
of 8 June 1989 (BGBl. I S. 1026).
(e.g. the difference between the pensions for the retired
( 2 ) Gesetz zur Umwandlung von Unternehmen der Deutschen
civil servants' pensions and the contribution by Deutsche
Bundespost in die Rechtsform der Aktiengesellschaft of 14 September
Post to the Pension fund). The pension subsidy increased
1994 (BGBl. I S. 2325).
from EUR 151 million in 1995 to EUR 3 203 million in
( 3 ) Gesetz über das Postwesen of 3 July 1989 (BGBl. I S 1450).
( 4 ) Gesetz über die Versorgung der Beamten und Richter des Bundes of
2010 and totalled EUR 37 121 million for the period
24. August 1976 (BGBl. I S. 322).
1995-2010.

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EN
19.10.2012 Official
Journal
of
the
European
Union
L
289/7
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
(64) Private
employees
are
compulsory
members
of
four
social
insurances:
pension,
unemployment,
health
and nursing care insurance ( 1 ). Compared to the civil servant's regime, the statutory social insurance
schemes offer a different coverage for the pension and health insurances:
— The level of the pension is not defined in percentage of the last monthly salary but of an average
life-time salary.
— The expenses for health and nursing care are fully covered.
(65) There also exist important differences in the financing of the social benefits compared to those of
civil servants: The statutory social insurances are financed by joint contributions from the employee
and the employer during the employee's working life (hereafter referred to as compulsory social
contributions). The total social contribution rate is formally divided into an employee's and
employer's share which both covers about half of the total contribution rate. However, the
employer has the formal obligation to pay the total contribution rate to the social insurances.
( 1 ) The Sixth Social Code (SGB VI) regulates the pension insurance; The Third Social Code (SGB III) regulates the
unemployment insurance; The Fifth Social Code (SGB V) regulates health insurance; Long Term Care Act (PflegeVG)
and Eleventh Social Code (SGB XI) regulate the long-term care insurance.

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L 289/8
EN
Official Journal of the European Union
19.10.2012
Figure 2
Compulsory social contribution rates in percentage of private employee's gross wage (see also the
Annex)
(66) Figure
2
shows
that
the
compulsory
social
contribution
provision for the outstanding obligations to the VAP (see
rates have since 1995 ranged from 38 % to 42 % of the
also description of burden #4 in Section II.3.1.3).
gross wage (= net wage + employee's share). The
employer's and employee's shares of the social
contribution rate have been in the range of 19 % to
21 % of the gross wage (see the Annex for a more
detailed time series).
(69) Since
1997,
newly
hired
private
employees
were
offered
a significantly reduced supplementary pension insurance
for which Deutsche Post, in the period 1997-2007, paid
(67) Deutsche Post's private employees have not only
a contribution between [0 and 5 %] of the gross wage.
benefited from the statutory social insurances but also
from supplementary pension insurance. Private
employees who started before 1997 were offered a
supplementary pension insurance cover that would
allow them to receive a similar level of pension as civil
servants. Thus the supplementary pension insurance
covered the difference between the private employees'
II.2. Public transfers and guarantee in the context of
statutory social insurance pension — which is equal to
Deutsche Post's exclusive right and universal
a certain percentage of the average life-time salary — and
postal service obligations
the civil servant's pension that equals to a certain
II.2.1. Exclusive right until 2007
percentage of the last salary. The detailed rules are laid
down in the Charter of the Versorgungsanstalt der
(70) Before
1998,
Article
2
PostG
1989
granted
Deutsche
Deutschen Bundespost (hereinafter VAP) ( 1 ).
Post the exclusive right to establish and maintain facilities
for the carriage of letter items. Other postal services —
like parcels, newspapers or periodicals — were not
reserved to Deutsche Post but open to competition.
Pursuant to Article 37 PostVerfG 1989, the profits
(68) Deutsche Post financed the supplementary pension
accruing from those reserved letter services were to be
benefits for the retired private employees up to 1997
used to finance the losses of those universal services that
by a contribution that amounted to approximately [5
were offered in markets open to competition. Pursuant to
to 10 %] (*) of the active private employees' gross
Article 4 PTRegG 1994 ( 2 ), the Minister for Post and
wage. Since 1997, Deutsche Post has built up a
Telecommunication was the competent authority to
approve the prices for the reserved letter services.
( 1 ) Satzung der Versorgungsanstalt der Deutschen Bundespost (1969
i.d.F.).
( 2 ) Gesetz über die Regulierung der Telekommunikation und des Post
(*) Business secret.
wesens of 14 September 1994 (BGBl. I S. 1509).

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EN
19.10.2012 Official
Journal
of
the
European
Union
L
289/9
(71) Beginning with the entry into force of the PostG 1997 in
(75) Article 52 PostG 1997 maintained the entrustment of
1998, the scope of the reserved services started to be
DPAG with the provision of universal services until
progressively reduced for Deutsche Post. Pursuant to
31 December 2007, which is the date of the abolishment
Article 51 PostG 1997, the exclusive right extended to
of DPAG's exclusive right for the provision of letter
the transport of letters and addressed catalogues below
services. Since the expiry of the exclusive right, no
200 grams in 1997 but afterwards the limit was
postal operator in Germany has been legally entrusted
successively reduced, reaching 50 grams in 2006. The
with the universal service obligation, which means that
exclusive right finally expired on 31 December 2007.
all postal service providers are assumed to ensure the
provision of universal postal services (‘market forces’).
Where a universal service is not being appropriately or
II.2.2. Universal postal service obligation until 2007
adequately provided or where there is reason to believe
that such will be the case, PostG 1997 provides for legis
(72) The
universal
service
obligations
for
Deutsche
Post
were
lative instruments to safeguard the provision of those
set out in two formal entrustment acts:
services.
— The 1994 Postdienst Mandatory Service Regulation ( 1 )
(hereafter 1994 Mandatory service regulation)
(76) As shown by the WIK study (see Figure 3), the universal
appointed Deutsche Post as the universal postal
services accounted for about 88 % of total revenue over
service provider for letters and parcels not
the period from 1990 to 2007: The majority of the
exceeding 20 kg, charging it with the provision of
universal letter services were subject to price regulation
those services throughout Germany at uniform tariffs.
because of Deutsche Post's dominant position on those
markets (see Section II.2.1). Apart from those price-
regulated services that made up about 62 % of total
— The 1997 PostG and the accompanying 1999 Imple
revenue, Deutsche Post has provided in competition
menting Regulation
( 2 ) (hereafter 1999 Universal
with other operators the universal parcel services (about
service regulation) continued the entrustment for
15 % of total revenue) and further non-price regulated
DPAG.
universal letter services (about 11 % of total revenue).
(73) Article
11
PostG
1997
defined
the
universal
service
as
a
basic set of postal services that are rendered nationwide
(77) Moreover,
Deutsche
Post
has
also
offered
commercial
at affordable tariffs. Those services include the transport
services (e.g. retail banking services for Postbank, sales
of letters, addressed parcels weighing no more than
services for Telekom, delivery of unaddressed mail
20 kg, or books, catalogues, newspapers and magazines
items, etc.). In total, the commercial services amounted
(hereafter universal services).
to 12 % of Deutsche Post's revenue for the period 1990-
2007.
(74) The 1999 Universal service regulation set out the
minimum quality requirements of the universal service:
II.2.3. Public transfers
(78) Since
its
creation
in
1950,
Deutsche
Bundespost
had
— There must be at least 12 000 post offices located
been a Sondervermgen of the Federal Government.
throughout Germany.
Under German administrative law, a Sondervermgen
does not have a legal personality that is independent
from the State, but does have its own budget and is
— An annual average of 80 percent of letters and parcel
not liable for the general debts of the State.
must be delivered within certain time targets (one
working day for letters and two working days for
parcels) and deliveries must be made at least once
daily on weekdays.
(79) The
first
postal
reform
in
1989
foresaw
that
the Sonder
vermgen would have three different sub-sections, —
POSTDIENST, POSTBANK, and TELEKOM — which
— While the general requirement for prices of universal
were qualified as ‘public undertakings’ but still did not
services is affordability, DPAG had to charge uniform
enjoy independent legal personality from the State.
prices in respect of letter services performed under
the exclusive license that eventually expired in 2007.
However, DPAG has some degree of pricing flexibility
for the reserved services because it could conclude
(80) Pursuant
to
Article
37(2)(3)
PostVerfG
1989,
although
individual price agreements with customers mailing
each service of the three entities should be able to
at least 50 items per transaction.
finance its costs out of its own revenues, a cross-
financing between the three entities was permissible to
the extent that losses resulted from universal service
( 1 ) Verordnung zur Regelung der Pflichtleistungen der Deutschen
obligations. On that basis, in the period 1990-1993
Bundespost POSTDIENST of 12 January 1994 (BGBI. I S. 86).
( 2 ) Post-Universaldienstleistungsverordnung of 15 December 1999
POSTDIENST received transfers of EUR 2 844 million
(BGBl. I S. 2418).
from TELEKOM to cover its losses.

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L 289/10
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Official Journal of the European Union
19.10.2012
(81) In the course of the second postal reform, the three sub-
supervision of the reserved and liberalised letter markets.
sections of the Sondervermgen were transformed as of
Pursuant to Article 19 PostG 1997, the Postal regulator
1 January 1995 into public limited companies: POST
is competent to regulate Deutsche Post's pricing in the
DIENST became DPAG, POSTBANK became Postbank
letter markets in which Deutsche Post enjoys a dominant
AG, and TELEKOM became Telekom AG. Pursuant to
position. Deutsche Post has had a dominant position not
Article 2(2) PostUmwG 1994, Telekom AG assumed all
only with the reserved services — pursuant to Article 51
liabilities arising from loans which were attributable to
PostG 1997 — but also with almost all other letter
the Sondervermgen as a whole but retained the right to
services which have had been opened up to competition.
reclaim funds from DPAG and Postbank AG to the
Price regulation can take the form either of an ex ante
extent that those loan commitments could be attributed
price cap or of an ex post price control.
to their legal predecessors.
(82) However,
Article
7
PostUmwG
1994
waived
the
right
of
(88) According to the market studies by the Postal regulator,
Telekom AG (arising from Paragraph 2(2) PostUmwG
Deutsche Post has held average market share of 90 % to
1994) to bring claims against DPAG up to the amount
97 % on the price-regulated letter markets. In his latest
of losses accrued by POSTDIENST until 31 December
report, the Postal regulator deplores that the gradual
1994. It resulted in a transfer of assets in the value of
market opening since 1997 has not achieved a func
EUR 2 822 million from Telekom AG to DPAG.
tioning competition on the German letter market ( 2 ).
According to Germany, that transfer from Telekom AG
was — as with the previous transfers based on
Article 37(3) PostVerfG 1989 — indispensable for
DPAG to discharge its universal service obligations.
(89) The price-regulated letter services account for the
majority of Deutsche Post's total revenues (e.g. about
62 % of Deutsche Post's total revenue for the period
(83) In
total,
POSTDIENST
received
EUR
5
666
million
in
the
1990-2007 (see Figure 3); in the period 2008-2010,
period 1990-1995 as compensation for its universal
the price-regulated services accounted for about 56 %
service obligation.
of Deutsche Post's total revenue).
II.2.4. Public guarantee for debt obligations issued before
1995
(90) All
other
universal
and
commercial
services,
which
do
(84) Since
1953,
§
22
(4)
PostVwG
1953
(
not fall under price regulation pursuant to Articles 19

1 ) provided that
debt obligations issued by Deutsche Bundespost had the
to 27 PostG 1997 ( 3 ) will be hereafter termed as non-
same legal value as debt obligations issued by the Federal
price regulated services.
Republic of Germany. When the PostVwG 1953 was
repealed by the PostVerfG 1989, the same provision
was taken over in § 40 PostVerfG 1989.
(91) For
the
price
regulated
letter
services,
Article
20(1)
and
(2) PostG 1997 provide that the prices shall reflect the
(85) After the creation of the three sub-sections in 1989,
costs of the efficient service provision. However, if
POSTDIENST itself did not issue the debt obligations
factually justified, the Postal regulator should, inter alia,
autonomously but POSTBANK administered those trans
appropriately account for:
actions for all entities of Deutsche Bundespost. The debt
obligations were then allocated to POSTDIENST,
TELEKOM and POSTBANK according to their financial
requirements.
— Costs arising from the universal provision of postal
services, and
(86) After
1995,
pursuant
to
Article
2(4)
PostUmwG
1994,
Germany remained liable for all debt obligations entered
into prior to 1995 by Deutsche Bundespost and
— Costs arising from the financing of pension and
subsequently allocated to POSTDIENST, TELEKOM and
health care benefits for employees who were taken
POSTBANK. However, Germany did not bear any
over from POSTDIENST.
liability for debt obligations issued by DPAG thereafter.
II.3. Revenues from regulated prices as additional
(92) Article
57 PostG 1997 and a ministerial decree of
compensation for pension costs and universal
27 March 2000 maintained the regulated prices at the
services' net costs
level of 1997 until 31 December 2002.
(87) The
PostG
1997
also
established
the Bundesnetzagentur
(hereafter referred to as Postal regulator) for the
( 2 ) Bundesnetzagentur, Zwlfte Marktuntersuchung (12th Market
Report), September 2009.
( 3 ) About 38 % of Deutsche Post's total revenue for the period 1990-
( 1 ) Gesetz über die Verwaltung der Deutschen Bundespost (Postverwal
2007; about 44 % of Deutsche Post's total revenue for the period
tungsgesetz), BGBl. I S. 676.
2008-2010.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/11
II.3.1. 2002 Price cap decision
Average
burden
(93) It
was
only
in
2002
that
the
Postal
regulator
took
its
first
# Burdens
from
2002
Price
cap
decision
(1998-
%
decision concerning the price cap for the period starting
2006)
on 1 January 2003 until 31 December 2007 (hereafter
million
EUR
2002 price cap decision). Price cap regulation means a
system of regulating the prices of a bundle of services
6 Social
and
health
cost
(BAnstPT) […] […]
under which the individual price for each service is not
controlled but there is a ceiling on the weighted average
7 Personnel
restructuring […] […]
of all the prices in the bundle. Pursuant to Article 19
8 Deficit
coverage
for
civil
servants' […] […]
PostG 1997 ex ante price cap regulation covered all
health insurance
postal services for which Deutsche Post held a
dominant position.
Total average burden […] 100
%
(96) The
Postal
regulator
eventually
accepted
Deutsche
Post's
reasoning that it would not have incurred those burdens,
had it not been subject to the universal service obligation
(for burdens #3 and 5 on universal service costs)
respectively to the obligation to take over the civil
(94) For
the
2002
price
cap
decision,
Deutsche
Post
submitted
servants and private employees from POSTDIENST
accounts to the Postal regulator (hereafter 2002 regu
(burdens #1, 2, 4, 6, 7, and 8). The Postal regulator
latory accounts) for the first time that covered the
approved increased regulated letter prices to finance the
period 1998-2006. The regulatory accounts were based
claimed average annual burdens of EUR […] million for
on realised results up to 2001 and on projections for the
the period 2002-2006 out of the revenues of the
later years.
regulated letter services. Under the 2002 price cap
decision, 100 % of the burdens are imputed to the prices
which are subject to the ex ante price cap.
(95) Deutsche
Post
claimed
in
2002
so-called
‘burdens’
for
the
provision of universal service as well as for the
employment of civil servants and private employees
who had been taken over from POSTDIENST. Those
burdens show the alleged costs that Deutsche Post
would not have assumed without the universal service
obligation and without the take-over of the POSTDIENST
II.3.1.1. Excess wages (burden #1)
personnel and infrastructure (see Table 1 for a detailed
list).
(97) Burden #1 shows the claimed excess of the wage costs
for postal workers over the industry average. Deutsche
Post used as a ‘competitive’ wage benchmark the wages
that had been stipulated in a collective labour agreement
(‘Entgelttarifvertrag’) with the trade unions for newly
hired personnel after 2002 (hereafter ETV wages). For
the calculation of burden #1, that benchmark is,
Table 1
however, applied for all personnel. It is also retroactively
applied in the submitted accounts back to 1998.
Burdens as approved by 2002 Price cap decision (million
EUR, nominal values)
Average
burden
# Burdens
from
2002
Price
cap
decision
(1998-
2006)
%
million
EUR
1 Excess
wage
costs […] […]
2
Excess social costs […] […]
II.3.1.2. Excess social contributions (burden #2)
3 Infrastructural
burden
post
shops […] […]
(98) The
Postal
regulator
also
approved
Deutsche
Post's
claim
4 Supplementary
pension
insurance […] […]
that it had to bear higher social contributions for its
for employees (VAP)
private employees and civil servants than private
5 Infrastructural
burden
freight […] […]
competitors would normally have to assume for their

private employees.

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L 289/12
EN
Official Journal of the European Union
19.10.2012
(99) Deutsche Post starts its calculations from a social
contribution to the regulatory contribution rate
contribution rate that it deems as ‘competitive’ (hereafter
since 1997 because a contribution to the supple
‘regulatory contribution rate’) for both civil servants and
mentary pension insurance of that magnitude is
private employees. That regulatory rate is defined as the
considered as ‘competitive’. The rate is based on the
sum of
supplementary pension insurance that Deutsche Post
— Employer’s share of social contributions for a private
has offered since 1997 to newly hired private
employee (about 19 % to 21 % which equals roughly
employees).
half of the total social contribution rate as shown in
Figure 2),
(100) The regulated revenues finance all social contributions
that are in excess of the regulatory contribution rate
— Contribution to the accident insurance (in the range
(hereafter ‘excess social contributions’). Taking e.g. the
of [0 to 5 %]; Deutsche Post has added that
calculations of the excess social contributions in 2001
contribution to the regulatory contribution rate
for civil servants, Table 2 shows that the incurred social
since 2001),
contributions for civil servants are almost double those
— Contribution to supplementary pension (in the range
of the allegedly ‘competitive’ social contributions based
of [0 to 5 %]; Deutsche Post has added that
on the regulatory contribution rate.
Table 2
Calculation of excess social costs for civil servants in 2001 according to 2002 regulatory accounts
(million EUR)
% of incurred wages
(1) Contribution
rate
for
pension
fund 33
%
(2) Civil
servants'
wage
sum […]
(3) =(1)*(2) Contribution
to
pension
fund […]
(4) Health
care
expenses […]
(5) =(3)+(4) Incurred
social
contributions […] [40
to
45
%]
(6) Employer's
share
of
social
contributions 20,43
%
(7) Accident
insurance […]
(8) Supplementary
pension
insurance […]
(9) =(6)+(7)+(8) Regulatory
contribution
rate […]
(10) =(2)*(9) Regulatory
benchmark
social
cost […] [20
to
25
%]
(11) =(5)–(10) Excess
social
contributions […] [15
to
20
%]
(101) The incurred social contributions include Deutsche Post's
Deutsche Post multiplies the regulatory contribution
payment of 33 % of the incurred civil servant wages to
rate of [20 to 25 %] by the incurred civil servant wage
the pension fund (respectively an annual lump-sum
to calculate the regulatory benchmark.
payment of EUR
2
045 million in the period
1995-1999) as well as the contributions to the civil
servants' health care expenses. In total, the incurred
II.3.1.3. Supplementary pension insurance for private
social contributions amount to [40 to 45 %] of the
employees (burden #4)
incurred civil servants' wages in 2001.
(103) Burden #4 is to compensate for the build-up of the
(102) Although the social contribution rate is defined in
provision for the pre-1997 liabilities from the supple
percentage of the private employee's gross wage (net
mentary pension insurance scheme VAP for Deutsche
wage + employee's share of social contribution),
Post's private employee.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/13
(104) As explained in Section II.1.4, Deutsche Post's private
for which Deutsche Post holds a dominant position and
employees — who had been hired before 1997 —
which are subject to either ex-ante price control pursuant
were offered supplementary pension insurance to
to Article 19 PostG 1997 or ex-post price control
guarantee them a pension similar to civil servants.
pursuant to Article 25 PostG 1997. All other services
However, POSTDIENST did not build up a corresponding
for which Deutsche Post does not hold a dominant
provision for the future pension payments. It was only
position and which are not subject to price control will
after the incorporation of DPAG that provisions of
be referred to as ‘non-price regulated services’.
EUR 8 153 million were made in the balance sheet.
II.3.1.4. Miscellaneous excess social costs (burdens
(110) Deutsche Post continued to claim the burdens for excess
#6, 7, 8)
wages and social costs from the takeover of personnel
from POSTDIENST (e.g. average burden #2 on excess
(105) Burden #6 contains the contribution of Deutsche Post to
social costs of EUR […] million from 2008 onwards)
the Bundesanstalt für Post und Telekommunikation (BAnstPT)
as well burdens from the universal service obligation.
that provides certain social benefits (e.g. social housing)
As with the 2002 Price cap decision, the Postal
to civil servants and private employees who were taken
regulator approved the financing of those burdens out
over from POSTDIENST. Burden #7 includes the
of the price-regulated revenues and set the price cap at
contributions by Deutsche Post to the deficit of the
an accordingly higher level. The Postal regulator's recog
civil servant's health insurance. Burden #8 on
nition of those burdens in the 2002, 2007, and 2009
personnel restructuring concerns both civil servants and
Price cap decisions has therefore remained unchanged
private employees.
with regard to the non-price regulated services.
II.3.1.5. Universal service burdens (#3 and 5)
II.4. Financial results of DPAG
(106) Those burdens shall show the cost savings that Deutsche
Post could have achieved if it had been able to design its
(111) The financial results of DPAG for the years 1995 to
shop and parcel network only based on commercial
2006 are shown in Figure 2 of the 2007 Extension
considerations. The cost savings are calculated based on
Decision. Whereas they were mixed, some years with
e.g. the counterfactual number of post shops that
losses and some with profits, in the years 1995 to
Deutsche Post would run without the universal service
1999, DPAG constantly made profits of between
obligation.
EUR 1 and 2 billion before taxes for the years 2000
until 2006.
II.3.2. 2007 and 2011 Price cap decisions
(107) On 7 November 2007, the Postal regulator approved the
(112) For the years 2007 until 2010, DPAG has realised the
price cap for the period from 1 January 2008 until
following net profits: EUR 1,8 billion (2007); – EUR 2,0
31 December 2011 (hereinafter referred to as 2007
billion (2008); EUR 0,7 billion (2009); EUR 2,6 billion
Price cap decision). On 14 November 2011, the Postal
(2010).
regulator approved the price cap for the period from
1 January 2012 until 31 December 2013 (hereinafter
referred to as 2011 Price cap decision).
(113) The published accounts of DPAG do not allow for an
allocation of the profits to the different services.
(108) Since the 2007 Price cap decision, the prices for the
Therefore, it is not possible on the basis of the
posting of more than 50 letters are no longer controlled
published accounts to see whether the price-regulated
ex ante but are subject to an ex post price control
universal services were loss- or profit-making overall.
pursuant to Article 25 PostG 1997 ( 1 ). The prices for
all other postal services for which Deutsche Post holds
a dominant position continue to be approved ex ante in
line with Article 19 PostG 1997.
III. GROUNDS FOR INITIATION OF PROCEDURE
(114) As the General Court confirmed in its ruling in Case
(109) The Commission will refer throughout this Decision to
T-421/07 ( 2 ), all measures under investigation have
‘price-regulated services’ when dealing with those services
been part of the proceedings since the 1999 Opening
decision, which has been continued by the 2007
Extension decision.
( 1 ) Article 53 PostG 1997 provided that after the expiration of the
exclusive licence, the posting of letters with a minimum number
of 50 is no longer subject to ex-ante price control but rather to
( 2 ) Case T-421/07 Deutsche Post AG v Commission, paragraphs 74
ex-post price control.
and 75.

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L 289/14
EN
Official Journal of the European Union
19.10.2012
III.1. Pension subsidy
(121) The Commission expressed doubts in the 2007
Extension decision whether the public transfers and
(115) The 2011 Extension decision considered that the pension
guarantee were necessary for the fulfilment of the
subsidy constituted a new aid measure because Deutsche
universal service obligations, and proportional to that
Post had, before the 1995 pension reform, been fully
end. In particular, the Commission considered it
liable to finance the pensions costs out of own resources.
necessary to review, in line with the principles codified
Furthermore, the 2011 Extension decision rejected
in the 2005 Framework, the cost allocation between the
Germany's claim based on the Combus judgment ( 1 )
universal and commercial services. It also raised doubts
that the pension subsidy did not constitute aid.
with regards to the determination of a reasonable profit,
taking into account the average profitability of the sector
and Deutsche Post's risk position.
(116) For the compatibility assessment of the pension subsidy
as compensation for ‘legacy’ pension costs (e.g. following
IV. WIK STUDY
the Commission decision on French La Poste (hereafter
La Poste decision) ( 2 ), the 2011 Extension decision took
(122) The WIK study was commissioned to assist the
into account that the claimed excess social costs have not
Commission in the review of Deutsche Post's accounts
only been compensated by the pension subsidy but also
for the period 1990-2007 with a view to establish
from the price-regulated revenues (e.g. burden #2 on
whether Deutsche Post had been overcompensated for
excess social contributions).
its universal service obligations. More specifically, WIK
was assigned the following tasks:
(117) When taking into account both sources of compensation,
— Benchmarking of reasonable profit;
the 2011 Extension decision's calculations showed that
Deutsche Post has effectively benefited from social
contribution rates that have been 10 to 14 percentage
points below the total compulsory social contribution
— Review of internal cost allocation and transfer pricing
rates (including employer's and employee's share) that
arrangements; and
private competitors have had to carry.
— Calculation of overcompensation for the net costs of
the universal service obligation.
(118) The 2011 Extension decision therefore expressed doubts
about the compatibility of the pension subsidy as
compensation for ‘legacy’ pension costs pursuant to
Article 107(3)(c) TFEU.
IV.1. Description of the 2009 regulatory accounts
(123) As sought by the Commission in the information
injunction of 30 October 2008, Germany eventually
submitted in 2009 a complete set of regulatory
III.2. Universal service compensation
accounts for the period 1990-2007 (hereafter 2009 regu
latory accounts).
(119) Germany has evoked Article 106(2) TFEU as a justifi
cation for the compatibility of the public transfers and
the public guarantee as compensation for the universal
service obligation.
IV.1.1. The revenues
(124) Deutsche Post's revenues can be classified in three broad
categories:
(120) Based on the Altmark judgment ( 3 ), the Commission
considered in the 2007 Extension decision that the
public transfers and guarantee constitute aid within the
— Price-regulated universal letter services (62 % of total
meaning of Article 107(1) TFEU.
revenue in the period 1990-2007)
( 1 ) Case T-157/01 Danske Busvognmnd v Commission [2004] ECR II-
917, paragraph 57.
( 2 ) Commission Decision 2008/204/EC of 10 October 2007 on the
The price-regulated letter services include all universal
State aid implemented by France in connection with the reform of
services that are provided on markets on which
the arrangements for financing the retirement pensions of civil
servants working for La Poste (OJ L 63, 7.3.2008, p. 16).
Deutsche Post has enjoyed a dominant market
( 3 ) Case C-280/00 Altmark Trans GmbH [2003] ECR I-7747.
position, including those services that benefited

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from the grant of the exclusive right. Those services
Deutsche Post has used its post shop network not
earned 62 % of Deutsche Post's total revenues in the
only for the distribution of postal services but also
period 1990-2007 ( 1 ).
to sell products and services for Postbank AG and —
to a lesser degree — for Deutsche Telekom. Those
— Non-price regulated universal services (26 % of total
commercial sales services achieved about 6 % of
revenue in the period 1990-2007)
Deutsche Post's total revenues.
The universal parcel services have always been
provided on markets open to competition, in which
Deutsche Post has only held an average market share
The commercial parcel and letter services (e.g.
of 30 %. In the period 1990-2007, the universal
addressed publications) account for about 4 % of
parcel services raised 15 % of Deutsche Post's total
Deutsche Post's total revenues.
revenue.
The non-price regulated universal letter services (e.g.
Finally, Deutsche Post provided a number of miscel
catalogues, cross-border mail) achieved about 11 % of
laneous services, e.g. in its function as holding for
Deutsche Post's total revenue.
international subsidiaries active in other businesses
(e.g. DANZAS, DHL). Those other commercial
— Non-price regulated commercial services (12 % of
services achieved about 2 % of Deutsche Post's total
total revenue in the period 1990-2007)
revenues.
Figure 3
Average revenue shares in the period 1990-2007 (based on nominal values)
(125) The WIK study only covers commercial services that
(127) Deutsche Post claims, based on the 2009 regulatory
were provided together with universal services by the
accounts, an average burden of EUR […] million for
legal entity DPAG and its predecessor POSTDIENST.
the period 1990-2006 compared to EUR […] million
Commercial services (e.g. the worldwide express oper
based on the 2002 regulatory accounts.
ations of DHL) — which were provided by different
legal entities within Deutsche Post World Net (hereafter
referred to as DPWN) — were not investigated.
Figure 4
Claimed universal service burdens with 2009 regulatory
IV.1.2. The calculation of burdens in the 2009 regulatory
accounts compared to approved burdens with 2002 Price
accounts
cap decision (annual average, million EUR nominal value)
(126) Unlike the regulatory accounts that Deutsche Post
[…]
submitted to the regulator for the 2002, 2007 and
2011 Price cap decisions, the 2009 regulatory accounts
— which have never been submitted to the Postal
regulator — contain a significantly higher amount of
(128) While burden #2 on excess social costs and burden #4
burdens that Deutsche Post allocates to the price-
on supplementary pension insurance do not differ signifi
regulated services.
cantly between the 2002 and 2009 regulatory accounts,
burden #1 on excess wages has almost […]. Unlike the
2002 regulatory accounts, Deutsche Post no longer uses
( 1 ) The 2009 regulatory accounts show the regulated letter revenues
the ETV wages as ‘competitive’ wage benchmark. Instead
within different business divisions over time. That definition
includes for each year the sum of all regulated revenues indepen
it used the minimum wage for the postal sector based on
dently of the business division in which they are listed.
a regulation issued by the Federal Ministry for Labour in

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2007 (hereafter referred to as 2007 minimum wage).
IV.2. Profit benchmarking
However, it has to be noted that that regulation was
finally declared illegal by the Federal Administrative
IV.2.1. Deutsche Post's value chain: low-tech operations and
Court and never became legally effective.
low level of business risk
(133) An analysis of the value chain and the assumed business
risks is indispensable to prepare the profit benchmarking
and the evaluation of the cost allocation. Only if the
function and risk characteristics are known is it
possible to search for a set of ‘comparable’ companies
(129) Furthermore, Deutsche Post claims with the 2009 regu
and to calculate a benchmark for the reasonable profit
latory accounts a new ‘infrastructure mail’ burden that
which Deutsche Post shall earn.
shows the incremental costs of the sixth delivery day
(e.g. on average EUR […] million per year). The calcu
lation is based on the counterfactual scenario that,
without the universal service obligation, Deutsche Post
would since 1990 have delivered mail on only five
instead of six days.
IV.2.1.1. The value chain of a low-tech business
(134) Deutsche Post's value chain can be divided into two main
functions:
(130) The infrastructure burden #3 on the post shop network
is calculated differently compared with the calculation in
the 2002 regulatory accounts. The burden now shows
the alleged cost savings that could have been achieved if
— Nationwide delivery network for the distribution of
all post offices had been run as agencies since 1990. It is
letters and parcels,
calculated based on the remuneration that Deutsche Post
paid to third-party agents for sales services in 2007.
— Nationwide network of post shops.
IV.1.3. The profit margins in the 2009 regulatory accounts
(131) The allocation of the burdens to the price-regulated
universal letter services provides a significant relief for
the non-price regulated services from costs that were
incurred for them (e.g. wage and social costs). That real
(135) The logistics of a parcel and letter network is a low-tech
location leads to significantly positive profit margins of
business that does not involve large research or devel
[15 to 25 %] on sales for the commercial services and
opment efforts. Thus all other operators in the industry
losses of almost [0 to 10 %] on sales for the price-
work in a similar and standardised way. Such activities
regulated letter services.
are therefore often labelled as ‘routine’ functions. The
high degree of outsourcing that Deutsche Post undertakes
to third parties also proves their routine nature. The
same goes for the sales services that are performed
through the nationwide shop network and have also
increasingly been outsourced.
(132) While Deutsche Post shows in its annual accounts very
high profits for its letter division (see also Section V.3),
those profits are more than eaten up by the burdens that
have been shifted from the non-price regulated to the
price regulated services.
(136) Apart from those routine functions, the main intangibles
of Deutsche Post are the customer base, the brand name
and the strong market position, especially in the letter
markets. However, the WIK study considers that those
intangibles are essentially not due to own efforts or
Figure 5
investments by Deutsche Post but much more due to
the historic exclusive rights. Deutsche Post did not have
Average returns on sales based on 2009 regulatory
to invest heavily into marketing functions. Instead, it
accounts
could rely on its legally guaranteed market position
until 2007. Therefore, Deutsche Post should not be
[…]
allowed any remuneration for those intangibles.

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IV.2.1.2. Low risk due to public measures
companies. A mixture of controlled quantitative and
qualitative selection steps identifies the set of comparable
(137) Deutsche Post was exposed to fewer risks both for
companies that provide postal services on competitive
regulated as well as non-regulated services than
markets.
competitors for several reasons.
(143) The WIK study chooses a comparator group of 26 postal
(138) Firstly, Deutsche Post was protected by a legal monopoly
companies that mainly provide parcel services and
until 2007 for its letter services. Furthermore, within the
perform the typical routine activities of postal operators.
scope of regulated letter services, Deutsche Post benefited
All comparable competitors come from the industry
from a market share of 90 % and a non-existing or low
sector of ‘Post and courier activities’ based on the
level of competition. The regulated services accounted for
NACE ( 1 ) code 641.
almost two-thirds of Deutsche Post's revenues.
(144) It is important to note that the number of comparable
competitors is limited because private companies have
(139) Secondly, the Postal regulator approved a price cap for
rarely provided letter services in larger scale due to the
regulated letter services. That cap was set above the cost
postal incumbents' exclusive right that covered a
of an efficient undertaking, to allow, inter alia, for the
significant share of the letter services. Furthermore, the
compensation of allegedly excessive costs linked of non-
WIK study excludes postal incumbents from other
price regulated services. None of the competitors of
countries as comparators because they have — as
DPAG enjoyed an exclusive right or a dominant
Deutsche Post — been protected by exclusive rights
position, which would have allowed him to cross-
and are not primarily active on competitive markets.
finance social costs. Therefore, the exclusive right
respectively the dominant position not only led to a
significant reduction of the business risks for the
regulated services, but also for the non-price regulated
universal and commercial services.
(145) To measure the reasonable profit, the WIK study uses the
return-on-sales margin (ROS) that is the accounting
profit (e.g. Earnings before interest and tax (EBIT))
divided by revenues. Furthermore, the WIK study
calculates the return-on-asset margin (ROA), e.g. EBIT
(140) Thirdly, other public measures also significantly reduced
as percentage of assets, as a capital-based profit
the risk for both universal and commercial services: e.g.
benchmark.
the public transfers hedged the losses of the early 1990s
and the public guarantee allowed Deutsche Post to
borrow at the rate of the Sovereign until 1995 despite
its difficult financial situation in the early 1990s.
Table 3
Benchmark ROS and ROA from WIK study
Return on Sales
Return on
(141) Taken together, Deutsche Post faced significantly lower
(ROS)
Assets
market and cost risks than competitors because it did not
(ROA)
have to build up its own customer base and could pass
Median 3,48
% 7,33
%
on cost increases through higher regulated prices. Based
on that reasoning, the WIK study concludes that the
Upper bound (75th percentile) 6,77
% 13,41
%
preferred comparable competitors would be postal
companies who only exercise routine functions (e.g. do
not invest heavily in marketing and brand name) and are
not exposed to a high degree of risk (e.g. can rely on
long-term contracts).
(146) From the chosen sample, it results that the median ROS
in the competitive part of the postal sector amounts to
3,48 % for the period 1998-2007. However, the WIK
study not only presents the median return but also an
IV.2.2. Quantification of profit benchmarks
upper bound for the reasonable profit, e.g. the third
quartile of the comparable competitors' profit which
(142) Based on the results of the function and risk analysis, the
WIK study performs a financial-database analysis
( 1 ) The NACE codes (Nomenclature statistique des activités écon
(e.g. using ORBIS database covering about 10 million
omiques dans la Communauté européenne) represent the statistical
companies worldwide) to search for comparable postal
classification of economic activities in the European Union.

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amounts to a ROS of 6,77 %. Put another way, 75 % of
for the costs that the commercial sales services should
the comparable competitors show a profit that is lower
carry. Based on the available evidence, the WIK study
than a ROS of 6,77 % ( 1 ).
considers that the contracts between Deutsche Post and
those related parties reflect the conditions that inde
pendent third parties would also have agreed on. As
neither POSTBANK nor TELEKOM had in the years
immediately after 1990 real outside-options to use
(147) Concerning the return on assets, the WIK study shows a
other distribution networks, they accepted to share the
median ROA of 7,33 % and an upper bound of 13,41 %.
incurred costs. However, subsequently, as Postbank and
Telekom could more easily find other distribution
networks and the costs of the universal service network
went down, the contract was changed to a revenue-based
commission fee that was more in line with a typical
(148) As Deutsche Post is exposed to considerably less risk
sales-service contract (
than the comparables who operate on highly competitive

3 ).
markets (e.g. express parcels), the WIK study considers
that the median ROS of 3,48 % is a prudent and conser
vative profit benchmark for Deutsche Post. It does not
recommend using a higher rate in the range up to the
third-quartile ROS of 6,77 %. On the contrary, a lower
benchmark could be also defendable because the median
IV.4. Adjustment of 2009 regulatory accounts
ROS of 3,48 % translates into a ROA of 7,33 % that
(152) The WIK study undertakes several adjustments to the
would still be significantly above the risk-free interest
2009 regulatory accounts based on the following
rate.
scheme:
IV.3. Review of cost allocation
(149) The WIK study rejects the allocation of burdens in the
Table 4
2009 regulatory accounts because the commercial
services' ROS margins between [15 to 25 %] are signifi
Calculation scheme for annual excess result with 2009
cantly above the industry average
(
regulatory accounts and WIK study

2 ). As private
competitors are viable despite significantly lower profit
margins, the WIK study concludes that a higher share of
Revenues of universal services
costs should be allocated to Deutsche Post's commercial
– Costs of universal services
services and accordingly reduces the burdens for the
– Reasonable profit
price-regulated services.
+ Public transfer
Excess result
(150) As final outcome of the WIK study, all commercial
IV.4.1. Adjustment of universal service revenues
services carry costs to such an extent they still show a
profit in line with the median ROS of 3,48 % of
(153) Deutsche Post sold a considerable amount of real estate
competitors. The price-regulated services' average annual
(e.g. real estate which has become redundant during the
burden is accordingly reduced by EUR […] million for
restructuring of the postal operations). Those revenues
the period 1990-2007.
should be shown with the universal services that were

the primary user of those assets and have rented them to
the commercial services.
(151) As a large share of the commercial sales services has
been provided to the related parties Postbank and
Telekom, the WIK study also investigates whether the
final prices charged to them can be considered as at
(154) The corresponding adjustment results in an average
arm's length and therefore as appropriate benchmark
annual increase of EUR […] million of the universal
service revenues over the whole period 1990-2007.
( 1 ) To back up the results of the postal sample that contains only a
small number of comparable competitors, the WIK study has chosen
( 3 ) Deutsche Post submitted a study by CTcon (2005), ‘Rentabilitt der
an additional larger set that includes about 1 160 companies from
Schalterleistungen der Postfilialen für die Postbank 2002 bis 2004’
the road freight sector (NACE code 60) because road freight
(Profitability of Deutsche Post's sales services for Postbank) that
transport is a highly competitive sector and often provided by
allocates the direct and common costs of the shop network
companies which perform similar transport activities to postal oper
between the commercial and universal services using an activity-
ators. The results from the second comparable set give a median
based costing approach. It seems that, in general, the remuneration
ROS of 2,59 % respectively third-quartile ROS of 5,57 % and
that Postbank paid covered an appropriate share of the shop
confirm the results of the smaller set.
network's full costs (e.g. including a proportionate share of the
( 2 ) The median ROS of 3,48 % or the upper-bound ROS of 6,77 %.
infrastructure burden #3 for the postal network).

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IV.4.2. Adjustment of universal service costs
(160) The corresponding adjustment results in an average
annual reduction by EUR […] million for burden #4
IV.4.2.1. Dissolution of accounts
on supplementary pension insurance over the whole
period 1990-2007.
(155) The 2009 regulatory accounts do not correctly dissolve
the internal transactions: The universal services do not
show the total profit which they earn because profits
which originate from certain functions (e.g. post shops)
are not divided between universal and commercial
IV.4.3. Adjustment of capital costs to reasonable profit
services (e.g. according to costs incurred for each
services) but lumped together and reported as
(161) Deutsche Post imputed capital costs to the 2009 regu
commercial profits. Deutsche Post has therefore not
latory accounts that had not initially been included in the
been able to provide correctly separated accounts in
statutory accounts: e.g. […] costs and […] costs. The
line with the requirements of Commission Directive
WIK study eliminates both the […] costs as well as the
2006/111/EC of 16 November 2006 on transparency
[…], and substitutes them with the benchmark for the
of financial relations between Member States and public
reasonable profit.
undertakings as well as on financial transparency within
certain undertakings ( 1 ).
IV.4.3.1. Period 1996 to 2007
(156) While Deutsche Post provided an approximate
(162) The reasonable profit is calculated on the basis of the
dissolution of internal accounting for the years up to
adjusted revenues of the universal services and the ROS
1997, the WIK study has to adjust the accounts for
benchmark of 3,48 % that result in annual average
the years after 1997 and shift wrongly ‘parked’ costs
reasonable profit of EUR […] million. The average
from the universal to the commercial service accounts.
annual capital costs of EUR […] million (interest costs
of EUR […] million and increased regulatory depreciation
of EUR […] million) are eliminated from the 2009 regu
latory accounts.
(157) The corresponding adjustment results in a decrease of the
universal service costs by EUR […] million over the
period 1998-2007.
(163) It is important to note that, compared to the 2009
regulatory accounts, the benchmark ROS of 3,48 %
IV.4.2.2. Adjustment of burdens between price-regulated
yields in absolute terms a reasonable profit that is
and non-price regulated services
higher than Deutsche Post's claimed capital costs (e.g.
interest costs based on an internal rate-of-return of
(158) As previously explained, the WIK study does not adjust
about […] on capital employed and increased
separately each burden. Instead, it bases its recalculation
depreciation on market value).
on the commercial services' final prices that were judged
as robust benchmarks for the industry average costs.
Consequently, all excess profits from the commercial
services ( 2 ) are used to finance the initially claimed
burdens. The average annual decrease in the burdens
IV.4.3.2. Period 1990 to 1995
amounts to EUR […] million over the whole period
1990-2007.
(164) Pursuant to Article 63(1) PostVerfG, Deutsche Post had
until 1995 to pay the so-called Ablieferungen ( 3 ) of
EUR 5 838 million to the federal government that
amounted to about 8 % of sales. As counterpart to that
IV.4.2.3. Off-balance costs with supplementary pension
obligation, Article 63(4) PostVerfG relieved Deutsche
insurance (burden #4)
Post, however, from the obligation to pay any further
dividends beyond the Ablieferungen.
(159) With burden #4 on supplementary pension insurance,
Deutsche Post added costs that are not shown in its
annual accounts. As the ROS-benchmark is calculated
on the basis of the comparable competitors' statutory
accounts, only costs that are also admitted according to
(165) The WIK study refuses therefore to add a ‘reasonable
national accounting standards or the international
profit’ for the period up to 1995 because the Abliefe
accounting standard (IAS) can be included. Therefore,
rungen has already fully covered Deutsche Post's equity
any additional costs — which are normally not
costs. Consequently, the Deutsche Post's average annual
included in IAS accounts — cannot be accepted as cost
capital costs of EUR […] million (interest costs of EUR
items but must be financed out of the benchmarked
[…] million and increased regulatory depreciation of EUR
profit margin.
[…] million) are eliminated from the 2009 regulatory
accounts and the universal service costs are decreased
in consequence.
( 1 ) OJ L 318, 17.11.2006, p. 17.
( 2 ) Excess of the profit margins in Figure 5 over the reasonable profit
rate of 3,48 % on sales.
( 3 ) See Section VI.2.1 for a detailed explanation of the Ablieferungen.

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IV.4.4. Conclusions
(166) The 2009 regulatory accounts as well as the WIK study agree that the revenues universal services
were insufficient to cover their costs up to 1996. However, while Deutsche Post is left with a
cumulated deficit for the whole period to 2007, even after taking account of the public transfers
in the 2009 regulatory accounts, the WIK study comes to the conclusion that the public transfers
were sufficient to allow Deutsche Post break even in 1997.
(167) The 2009 regulatory accounts show hardly an improvement in the profitability of the universal
services up to 1999. It has only been since 2000 that universal service revenues on average cover the
costs. On the contrary, the WIK study shows since 2000 significant excess profits for the universal
services above the median ROS of 3,48 % despite the fact that the universal parcel services have only
shown a below-average return of […] on sales (see Figure 6)
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
(170) TNT considers that, if Deutsche Post effectively used the
stamps issued by the Federal Ministry of Finance free of
(168) Interested parties submitted comments on the 1999
charge, the non-payment of the application fee would
Opening Decision, the 2007 Extension Decision and
constitute illegal State aid.
the 2011 Extension Decision. The most important
comments on all three decisions are summarised in this
section.
(171) The Commission observes that this measure has not been
addressed in the 1999 Opening Decision, the 2007
V.1. Right to use official German stamps
Extension Decision or the 2011 Extension Decision. It
falls therefore outside the scope of the present Decision.
(169) TNT questions whether Deutsche Post paid a fee for the
exclusive right to use official German stamps. According
V.2. Pension subsidy
to § 43 PostG 1997, the authorisation to distribute
stamps with the inscription ‘Germany’ has been
(172) According to UPS, Deutsche Post has benefited from an
reserved to the Federal Ministry of Finance. A postal
advantage as it has been partially released from the
operator who files an application to use those stamps
payment obligation it had to bear before 1995. Since
is required to pay a fee and to cover incidental costs.
normal operators have to bear their own pension costs,
Pursuant to § 54 PostG, Deutsche Post had the exclusive
Deutsche Post was put into an advantageous position
right to use German stamps until 31 December 2007.
compared to its competitors. Furthermore, UPS agrees

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with the Commission's reasoning that the aid cannot be
V.3. Universal service compensation
regarded as existing aid given the fundamental changes in
the position of Deutsche Post and the introduction of
(177) UPS fully supports the Commission's investigation and
new legislation to remove part of Deutsche Post's
fully subscribes to the contents of the 2007 Extension
obligations to incur the costs of the civil servants
decision concerning the assessment of the universal
pensions. According to UPS, those major amendments
service compensation. Additionally, UPS provided an
of the system do not qualify as simple modifications of
update ( 1 ) of the NERA study of October 2006 ( 2 ) that
a purely formal or administrative nature.
the Commission referred to at recital 58 of the 2007
Extension decision.
(173) UPS supports the Commission's preliminary conclusion
that the pension subsidy cannot be considered
(178) While the 2006 NERA study estimated an average return
compatible aid under Article 107(3)(c) TFEU. Given the
on capital employed above 20 % for the letter division of
level of sustained profitability as well as Deutsche Post's
DPWN for the period after 1999 ( 3 ), the updated study
exclusive rights, the necessity of any relief for alleged
emphasises that the return on capital employed would
legacy costs can surely be doubted. Furthermore, the
have remained even above 50 % in the period 2000-
subsidy granted is not proportional to the objective of
2005. Over the period from 2003 to 2005 the return
common interest as brought forward by Germany,
on capital employed would have even been estimated at
especially as the legacy costs are compensated by both
more than 100 %. UPS concludes that the profits of the
increased letter prices and the pension subsidy. UPS
extremely profitable regulated letter services would have
points out that the burden of proof of the propor
been more than sufficient to cover the losses of the
tionality of the measure lies with Germany. However,
universal services.
Germany has not given precise indications of the propor
tionality of the benefits derived by Deutsche Post from
the measure.
(179) Furthermore, UPS considers that Deutsche Post's own
(174) According to UPS, the aid received by Deutsche Post has
cost accounting data would not provide a good basis
enabled it to acquire an advantageous position not only
for an analysis and understanding of the profitability
in Germany but also in other European markets in which
and burdens in the reserved sector. Therefore, a
it competes with other postal industry players such as
thorough analysis of the cost allocation between regu
UPS. As the pension subsidies have allowed Deutsche
lated, universal and commercial services should be under
Post to strengthen its position in the commercial sector
taken. All benefits that Deutsche Post received to cover
at the disadvantage of other players, competitors of
its burdens of the past, such as capital endowments
Deutsche Post have suffered from a distortion of
granted to Deutsche Post by Germany in 1995 as well
competition.
as assets in the form of real estate and infrastructure,
should be included in the determination of the aid
amount and the amount of overcompensation.
(175) UPS requests the Commission to additionally apply the
assessment of the necessity and proportionality of any
pension subsidies as set out in the 2011 Extension
decision for the period 2007-11 and to scrutinise
(180) Regarding the internal transfer pricing arrangements with
whether Deutsche Post still benefits from unlawful State
related parties, UPS claimed that the arm's length
aid within the meaning of Article 107(1) TFEU.
principle should be maintained in line with the Chro
nopost judgment ( 4 ). Therefore, the Commission should
review the terms of the contract governing the
( 1 ) National Economic Research Associates (NERA) (November 2007),
‘The Profitability of the Mail Segment of Deutsche Post — An
(176) Finally, UPS requests the Commission to provide more
Update’.
information as to how it has come to the conclusion that
( 2 ) National Economic Research Associates (NERA) (October 2006),
Deutsche Post benefited from an incompatible aid. In
‘The Profitability of the Mail Division of Deutsche Post — A Final
particular, UPS requests a copy of the WIK study to
Report’.
receive clarification as to the extent to which the
( 3 ) DPWN's letter division goes beyond DPAG's German activities and
results of the WIK study have been used for the
includes all worldwide mail activities. However, domestic business
constitutes the major share of DPWN's letter division.
assessment of the pension subsidy with the 2011
( 4 ) Joined Cases C-83/01 P, C-93/01 P et C-94/01 P Chronopost [2003]
Extension Decision.
ECR I-6993.

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relationship between Deutsche Post and DPEED, in
a market share of more than 90 %, Deutsche Post is able
particular the pricing arrangements agreed between the
to cross-finance the cost of services in more competitive
parties.
markets.
V.4. Excessive letter prices
(186) Furthermore, BIEK claims that, despite the alleged legacy
costs, Deutsche Post is significantly more profitable than
(181) FFPI fully supports the 2011 Extension decision: FFPI
its peers in other European countries, as shown by a ROS
states that legislative and administrative changes
margin of 10 % to 20 % for its domestic mail division.
resulting in higher pension costs constitute normal
That profit margin may even be distorted downwards
business risk that may impact the business' profitability.
because it must be taken into account that the
As undertakings operating under normal market
domestic mail division also includes domestic parcel
conditions have to bear such additional costs out of
services that earn on average lower margins than letter
their own resources, Deutsche Post should also not
services.
receive pension subsidies granted by Germany.
(187) Concerning Deutsche Post's claimed burden from
(182) Furthermore, FFPI points out that Deutsche Post stressed
increased wage costs, BIEK points out that Deutsche
the importance of the pension reform in its 2000
Post uses average wages in the transport sector as a
Annual Report, thereby claiming that lower contributions
benchmark to calculate the differences in wage costs
to the Pension fund for civil servants constitute the main
borne by Deutsche Post as compared to its competitors.
reason for an increase in EBITA by 98,6 % in the mail
While the Commission seems to adopt those numbers in
corporate division. Consequently, the pension reform
the 2011 Extension decision as benchmarks for its calcu
should not be considered to be of minor importance
lations, BIEK claims that wages paid by the competitors
or primarily administrative in nature.
of Deutsche Post are at least 15 % above those average
wages. Consequently, the allegedly excessive wages borne
by Deutsche Post are significantly smaller than claimed
by Deutsche Post. BIEK argues that the remaining
difference in wage costs does not result from legacy
(183) According to a study conducted by FFPI from 2001 to
costs but is caused by Deutsche Post's size and
2008, stamp prices applied in Germany in 2009 for 20g
dominant position in the market.
standard letters, sent via first class stamped mail, were
among the highest. With reference to 500g parcel sent
first class, the prices in Germany were instead in the
cheap area, indicating the existence of cross-subsidisation.
(188) Finally, BIEK considers that Deutsche Post's legacy costs,
including pension costs, have been more than
compensated by the increased regulated letter prices.
The aid measures, which the Commission is assessing,
have led to the situation that competition has effectively
(184) FFPI is convinced that the aid to Deutsche Post was not
aimed at stimulating growth of the German postal
not emerged for letter services and has been severely
market or of certain postal services. During the years
distorted for parcel services.
under investigation, Deutsche Post was a profitable
company. It managed to strengthen its leadership in
the German market, increased its performance and
expanded its business. Therefore, the pension subsidies
should not be considered compatible with the internal
VI. COMMENTS BY GERMANY
market under Article 107(3)(c) TFEU.
VI.1. Comments on pension subsidy
VI.1.1. No financial advantage from compensation of excess
social costs
V.5. Profit margins
(189) Based on the Combus judgment ( 1 ), Germany is of the
opinion that, in the course of the privatisation of
(185) BIEK is of the opinion that other postal operators have
formerly State-owned universal service providers, the
suffered from Deutsche Post's practice of using its
public compensation of pension costs — which goes
dominant position on certain letter markets to cross-
beyond the level normally assumed by private
finance costs of letter and parcel services that have
competitors — does not constitute aid.
been offered on more competitive markets. In particular,
as Deutsche Post can increase its prices on the markets
( 1 ) Case T-157/01 Danske Busvognmnd v Commission [2004] ECR
where it used to have an exclusive license and still holds
II-917, paragraph 57.

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(190) Germany agrees therefore with the Commission that a
set-up DPAG in 1995. According to general principles of
comparison should be undertaken between the social
private law, if existing liabilities were transferred to a
costs paid by Deutsche Post and competitors' social
legally independent subsidiary the parent company
costs. However, that comparison should already be
would nevertheless remain liable for those liabilities
made under Article 107(1) TFEU and not subsequently
towards third parties.
at the stage of the compatibility assessment under
Article 107(3)(c) TFEU.
(197) Secondly, Germany claims that Deutsche Post has never
VI.1.2. No financial advantage compared to pre-1995
had enough own resources to effectively finance the
situation
pension costs. On the one hand, before 1995, POST
DIENST had incurred only losses that in turn had to
(191) Germany is of the opinion that the pension subsidy has
be financed from the public transfers of EUR 5,6
not relieved Deutsche Post from a cost that it would
billion. On the other hand, when POSTDIENST was
normally have had to bear out of its own resources.
transformed into DPAG in 1995, the accrued civil
Thus, Deutsche Post has not benefited from an
servants' pension liabilities amounted to approximately
advantage within the meaning of Article 107(1) TFEU.
EUR […] billion. It would not have been possible to
According to Germany, Deutsche Post was not legally
set up DPAG as a private-law company with those
liable or economically capable to pay the pensions to
liabilities on its balance sheet because the federal
the civil servants before and after 1995.
government had not provided sufficient assets to make
DPAG viable.
(192) First of all, Germany claims that, pursuant to Article 46
PostVerfG 1989, the civil servants, who were taken over
by Deutsche Post in 1989, remained in the service of the
VI.1.3. Pension subsidy as existing aid pursuant to
federal government. Also after the second postal reform
Article 108(1)
in 1995, pursuant to Article 2(3) PostPersRG 1994 and
the newly inserted Article 143b of the Constitution,
(198) Germany is of the opinion that if the pension subsidy
Deutsche Post's civil servants continued to stay in the
were to be considered as State aid it would have to be
federal government's service.
qualified as existing aid pursuant to Article 1(b)(i) of
Regulation (EC) No 659/1999 because the State has
been the sole debtor and the party liable to finance the
civil servants' pensions since the entry into force of the
(193) Therefore, as the federal government has always
relevant provision in the German Basic Law in 1953.
remained the sole debtor for the civil servants' pension
Germany maintains that neither the first postal reform
liabilities, Deutsche Post has never been under a legal
in 1989 nor the second postal reform in 1995 has
obligation to use its own resources.
changed the State's liability towards the civil servants.
According to Germany, Deutsche Post has neither
before nor after 1995 been legally liable or economic
capable to pay the civil servants' pensions.
(194) Even though Deutsche Post was obliged pursuant to
Article 54(2) PostVerfG 1989 to finance civil servants'
pension costs, Germany maintains that the provision was
only an internal arrangement to raise funds for the public
budget (e.g. as the obligation to pay Ablieferungen
(199) Furthermore, Germany refers to a statement by the
pursuant to Article 63 PostVerfG 1989). It did not
Commission before the General Court in Case
establish any liability by Deutsche Post towards the
T-266/02. According to Germany, it becomes clear
civil servants.
from paragraph 54 of the judgment that the Commission
‘had taken the view, for the purpose of the contested
decision, that only the transfer payments made by DB-
Telekom had conferred an advantage on it.’ ( 1 )
(195) After the second postal reform in 1995, pursuant to
Article 2(3) PostPersRG 1994 and Articles 14 to 16
PostPersRG 1994, the federal government further
remained the sole debtor towards the civil servants.
The obligations, which Articles 16(1) PostPersRG
(200) Germany concludes from that statement that the
imposed on Deutsche Post to contribute to the Pension
Commission had already declared the pension subsidy
fund, constitute therefore, as with the obligations under
as not providing any financial advantage to Deutsche
Article 54(2) PostVerfG 1989, only a relief for the public
Post. It therefore had effectively taken a ‘decision not
budget. They do not change the federal government's
to raise objections’ within the meaning of Article 4 of
sole liability with respect to the civil servants' pensions.
Regulation (EC) No 659/1999. Furthermore, pursuant to
Article 1(b)(ii) Regulation (EC) No 659/1999, such a
positive decision would mean that the pension subsidy
must subsequently be qualified as existing aid.
(196) Furthermore, under private law, it would also not have
been possible for the federal government to discharge its
( 1 ) Case T-266/02 Deutsche Post AG v European Commission [2008] ECR
liability for the civil servants' pension rights to the newly
II-1233, paragraph 54.

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VI.1.4. Pension subsidy as compatible compensation for legacy
made two mistakes in the calculation of the benchmark
costs pursuant to Article 107(3) TFEU
for Deutsche Post's social costs.
(201) In light of the Commission's reasoning in the La-Poste
decision, Germany is of the opinion that the pension
subsidy is compatible aid under Article 107(3)(c) TFEU:
(204) The employee's share should not be included in the
benchmark because a private employer would not be
— Germany points out that Deutsche Post has
legally liable for the payment of the employee's share.
consistently paid a higher level of social costs than
It would only be for administrative reasons that the
the employer's contribution to pension, health and
employer executes the payment of the total social
nursing care.
contribution but it does not make him legally liable to
carry the total burden of the social contributions.
Furthermore, the inclusion of the employee's share in
the benchmark would also contradict previous decisional
practice, as in the La Poste decision.
— Germany objects to the Commission's calculations of
the comparative advantage insofar as it is considered
that the price-regulated services cover the claimed
burden #2 on excess social contributions. Germany
points out that La Poste — as any other postal
incumbent — has also refinanced social costs
through increased regulated letter prices but that
(205) The calculation of the benchmark social costs should be
the Commission did not take that fact into account
based on the ‘competitive’ wage benchmark ( 3 ) because
in its La Poste decision.
the civil servants' wages have significantly been higher
than the market average.
— Although Germany agrees in principle that the price-
regulated revenues should cover the claimed burdens,
the Commission has neither proven that the regulator
effectively approved Deutsche Post's claim to finance
VI.1.4.2. Insufficient level of price-regulated revenues to
the excess social costs out of the regulated revenues
cover excess social costs
nor that the regulated revenues were effectively suffi
ciently high to finance those excess social costs.
(206) First of all, Germany emphasises that the consideration of
a full coverage of burden #2 by the price regulated
revenues would only be hypothetical because it would
not be possible to establish whether the regulated
prices were effectively increased to compensate the
(202) Furthermore, Germany points out that the Commission
excess social costs. On the one hand, it is not retrievable
in its 2007 Opening decision on Royal Mail
(
from the 2002 Price cap decision whether and to which

1 )
emphasised the need to assess pension costs of former
extent the Postal regulator had taken the claimed burdens
public undertakings according to consistent criteria,
for excess social costs into account. On the other hand,
which should lead to consistent decisions. Consequently,
until 2002, the prices were kept at the approved 1997
the Commission should take into account its La Poste
level and it is not possible to establish whether those
decision and its preliminary assessment in Royal Mail. In
prices included a compensation for the non-regulated
the latter, the Commission did not object to the compen
services' excess social costs.
sation of pension deficits even though the Hopper-Report
2008 shows that Royal Mail's pension costs had partly
been covered by increased regulated letter prices.
(207) According to Germany, it would not be sufficient to
VI.1.4.1. Benchmark to be based on ‘competitive’ social
show that the non-price regulated services have
costs
benefited from lower social contributions than
competitors. It must also be established whether the
(203) Germany argues, based on the expert study by Professor
price-regulated services have effectively been able to
Ehlermann of 19 July 2011 ( 2 ), that the Commission
finance the claimed burdens of excess social costs out
of their revenues.
( 1 ) Commission Decision 2011/C 265/02 of 29 July 2011 on State aid
measures to Royal Mail (OJ C 265, 9.9.2011, p. 2).
( 3 ) The 2007 minimum wages as used by the 2009 regulatory accounts
( 2 ) See recital 41.
for the calculation of the excess wage burden #1.

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(208) A financial advantage for Deutsche Post from the
(211) As shown in Table 5, the expert study includes in the
compensation of its excess social costs would only
incurred social costs due to the employment of civil
exist if the granted compensation was higher than the
servants: Deutsche Post's contribution to the Pension
total excess social costs that Deutsche Post has had
fund and other social costs as Deutsche Post's
incurred for the civil servants.
contribution to the health expenses, accident insurance,
further miscellaneous insurance payments.
(209) Consequently, Germany deplores the lack of a compre
hensive calculation to establish whether Deutsche Post
was in total over- or under-compensated for the civil
servants' excess social costs. It emphasises the necessity
of such a calculation in order to establish a financial
(212) The expert study defines as social costs from the
advantage with the meaning of Article 107(1) TFEU.
employment of a private employee: the employer's
share of the contribution rate for the statutory pension,
unemployment, health and nursing insurance multiplied
by allegedly ‘competitive’ wages (e.g. the 2007 minimum
for the majority of the civil servants).the
(a) Under-compensation of excess social costs based on expert
study
(210) To remove that defect, Germany submitted the expert
study by Professor Weber ( 1 ) to establish Deutsche
Post's financial advantage in social cost from the
employment of civil servants. First, the expert study
establishes by how much Deutsche Post's incurred
social costs for civil servants exceed those that a
(213) The excess social costs are the result of the excess of
private competitor has to carry for a private employee
Deutsche Post's incurred social costs for civil servants
(hereinafter referred to as excess social costs). Second, the
over the defined benchmark of social costs based on
expert study compares those excess social costs to the
the employer's share of social contributions for a
compensation under burden #2.
private employee.
Table 5
Calculation of net result following Germany's expert study
– Contribution to Pension fund
– other
social
costs
+ ‘Competitive’ social cost benchmark (based on employer's share of social contribution rate and ‘competitive’ wage (e.g. 2007 minimum
wage))
Excess social costs
+ Compensation from regulated revenues (burden #2 on excess social contributions)
Net result (under- or over-compensation)
(214) For the period 1995-2007, the calculations arrive at the
(b) 2009 regulatory accounts confirm insufficiency of price-
conclusion that burden #2 was insufficient to cover the
regulated revenues to cover excess social costs
excess social costs. In fact, the expert claims that
Deutsche Post has been under-compensated by EUR
[…] million. The expert concludes that, even if it was
considered that the price-regulated revenues include
(215) Germany argues that in any case, as long as the price-
burden #2, Deutsche Post would remain under-
regulated services incur losses that are higher than the
compensated for its excess social costs.
excess social costs, it cannot be established that the
regulated revenues effectively compensated the excess
social costs. In that context, Germany submitted an
( 1 ) See recital 41.

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expert study by CTcon based on the 2009 regulatory
(220) In response to that contention, Germany submitted the
accounts ( 1 ) to show that the losses of the price-
KPMG study that comes to the conclusion that the
regulated services have consistently been higher than
Ablieferungen could neither be considered as a substitute
the excess social costs.
for taxes nor for dividends for a number of reasons.
(221) First, the Ablieferungen would not qualify as a corporate
tax because the Ablieferungen had been calculated as a
(216) The calculations are based on the 2009 regulatory
percentage of the realised revenues since 1931. As a
accounts and assume that the price-regulated services
result, they had to be paid even in years where
should earn a reasonable profit of ROS of 7 % (based
Deutsche Post incurred a loss. In contrast, corporate
on the Deloitte-II study that is discussed in more detail in
tax is based on the realised annual profit. A qualification
Section VI.3.2). After deduction of the reasonable profit,
of the Ablieferungen as a corporate tax would also
the price-regulated services show a loss of EUR […]
contradict the legal practice of the Bundesverfassungs
million that is higher than the claimed excess social
gericht, according to which a corporate tax must be
cost for the period 1995-2007. The price-regulated
based on the economic performance (‘Leistungsfhigkeit’)
revenues have therefore been insufficient to cover the
of a company.
claimed excess social costs.
(222) Furthermore, the Ablieferungen would also not qualify as
a value-added tax. Since there was no possibility to
deduct the value-added tax paid on the inputs from the
VI.2. Comments on universal service compensation
Ablieferungen, the calculation of the Ablieferungen
differed substantially from the usual calculation of the
VI.2.1. Public transfers
value-added tax liabilities.
(217) Germany argues that the public transfers have not
provided any economic advantage to Deutsche Post
because the public transfers of EUR 5 666 million only
(223) Second, Germany argues that the Ablieferungen could
compensated for the Ablieferungen of EUR 5 838 million
not be qualified as a dividend. The distribution of
that Deutsche Post had to pay until 1995.
dividends usually requires that profits were earned in
the corresponding financial year or the years before.
However, Deutsche Post did not earn any profits
between 1990 and 1995 but nevertheless paid the
Ablieferungen. As a result, the Ablieferungen could not
be qualified as dividends.
(218) As explained in the 2007 Extension decision, the Abliefe
rungen had their origins with the former postal adminis
tration that was obliged to transfer about 10 % of the
(224) The KPMG study concludes that the Ablieferungen could
annual operating revenue to the public budget. In the
not be qualified as tax or dividend payment but should
period 1989-1995, the Ablieferungen were phased out
be viewed as a levy sui generis that only Deutsche
pursuant to Article 63(1) PostVerfG 1989. Up to 1993,
Bundespost and its successors was liable to pay.
Deutsche Post had to pay 10 % of its operational
revenue. As of 1993, the Ablieferungen were successively
reduced to 10 % of the operational revenue minus
EUR 153 million in 1993. For 1994, the Ablieferungen
(225) Based on the KPMG study, Germany rejects the Commis
amounted to 70 % of the 1993 Ablieferungen. In 1995,
sion's contention that the Ablieferungen should be
Deutsche Post paid 50 % of the 1993 amount. In total,
considered as a substitute for tax and dividend
Deutsche Post paid EUR 5 838 million from 1990 to
payments. It maintains that the Ablieferungen constituted
1995.
a burden for Deutsche Post that could not be justified on
factual or economic terms. As the public transfers only
relieved Deutsche Post of the Ablieferungen, they did not
provide any economic advantage and therefore did not
constitute aid.
(219) Article 63(4) PostVerfG 1989 provided that any
dividends paid were to be subtracted from the Abliefe
(226) In the alternative, Germany puts forward two further
rungen. Based on that provision and the exemption from
justifications why the public transfers would not
any direct or indirect taxes, the Commission contended
constitute aid. First, the public transfers would fulfil the
in the 2007 Extension decision that the Ablieferungen
market-economy-investor principle in light of the
were to be considered as a substitute for indirect and
substantial return on investment in later years and the
direct taxes as well as to provide a remuneration to the
high proceeds realised in the stock-market flotation of
State as shareholder for the provided capital.
Deutsche Post. Second, the public transfers would also
not constitute aid because both the 2009 regulatory
( 1 ) See recital 41.
accounts as well as the WIK study show that the

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cumulated universal service losses from 1990 to 1994
existing aid. Germany also refers to the Commission
were higher than the public transfers. Deutsche Post was
decision on EDF ( 1 ) where a similar guarantee was
therefore under-compensated for its universal service
considered as existing aid.
obligation.
VI.2.2. Public guarantee
VI.2.3. Exclusive right
(227) Germany argues that the continued public guarantee
pursuant to Article 2(4) PostUmwG 1994 for debt
(232) Germany argues that the regulated letter revenues are not
obligations that were issued prior to 1995 did not
State resources in light of the Preussen-Elektra judg
provide any selective advantage to Deutsche Post after
ment ( 2 ).
1995 because of several reasons.
(228) Firstly, any private company, hiving off a subsidiary,
would continue to be liable for debt obligations
(233) Consequently, as the regulated letter revenues would not
entered into by that subsidiary. A private company
constitute State resources, any allegations of excessive
would remain liable for its outstanding debts even after
pricing could only be the subject of proceedings
selling those debts to a third party. Furthermore, it must
pursuant to Article 102 TFEU.
be noted that the initial public guarantee for the debt
obligations was only a consequence of the non-existence
of a separate legal personality of POSTDIENST. Article 40
PostVerfG 1989, which provided that debt obligations
issued by Deutsche Bundespost had the same legal
value as debt obligations issued by Germany, had
VI.3. Comments on WIK study
therefore only declaratory character.
VI.3.1. WIK study confirms the necessity of public transfers as
compensation for net costs of universal service
obligations up to 1995
(229) Secondly, DPAG would not have benefited from the take-
over of the POSTDIENST debt obligations because DPAG
(234) Regardless of all methodological objections, Germany
could have refinanced itself in 1995 at lower interest
considers that the WIK study confirms Germany's point
rates. The stock of POSTDIENST debt obligations as of
of view that the public transfers were necessary as
1 January 1995 amounted to EUR 931 million at an
compensation for Deutsche Post's losses with its
average interest rate of 7,17 % with a remaining
universal services in the period 1990-1995.
duration of 8,8 years. As the short-term interest rate
amounted to about 5 % to 5,5 % at 1 January 1995,
DPAG suffered a cost disadvantage of 1,7 % which
amounted to higher annual interest costs of about
EUR 15,3 million.
(235) Any excess profits after 1995 must not be taken into
account because the public transfers were depleted by the
net costs of the universal service obligations that
Deutsche Post had incurred up to 1995. The Court's
(230) Thirdly, by comparing the average market interest rates
for debt obligations issued by private companies and the
annulment of the 2002 Decision also confirms that
interest rates for POSTDIENST debt obligations with
what had been ‘consumed’ once could not be ‘consumed’
reference to date when the obligations were initially
again. Given that the public transfers had been eaten up
issued, Germany estimates that POSTDIENST borrowed
by the universal service losses up to 1995, it would not
on average at interest rates above the market average.
be possible for the public transfers to finance later excess
Germany did not carry out a comprehensive investigation
profit.
but only compared the interest rates of certain POST
DIENST debt obligation with an aggregated market
average.
VI.3.2. Defective profit benchmarking
(231) Alternatively, Germany argues that the public guarantees
(236) Based on the Deloitte studies, Germany's main objection
constitute existing aid according to Article 1(b)(i) of
is that the WIK study includes too many small
Regulation (EC) No 659/1999. As Deutsche Bundespost
companies. The set of comparable companies should
was part of the public administration until the end of
1994, the debt obligations were equal to debts of the
State since its creation in 1950. If the public guarantee
( 1 ) Commission Decision 2005/145/EC of 16 December 2003 on the
State aid granted by France to EDF and the electricity and gas
had provided any advantages to Deutsche Post regarding
industries (OJ L 49, 22.2.2005, p. 9).
interest rates they would have to be considered as
( 2 ) Case C-379/98 PreussenElektra [2001] ECR I-2099.

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focus much more on large parcel and logistics companies
(242) Moreover, as emphasised by the Deloitte-I study, the use
that are comparable in size and complexity of their
of the comparable firms' median profit as a benchmark
network to Deutsche Post ( 1 ).
by the WIK study entirely ignores the efficiency gains
that Deutsche Post achieved to an extraordinarily large
extent from 1990 onwards. In line with margin numbers
14 and 18 of the 2005 Framework, the reasonable profit
should, however, take into account appropriate incentives
(237) The Deloitte-II study considers that companies in the
for productivity and quality.
parcel and postal sector that operate a complex, large
collection and delivery networks are reasonable
comparators to Deutsche Post. The importance of
economies of scale, scope and density prevalent in
postal networks implies that large businesses would be
(243) Accordingly, the appropriate profit benchmark should be
more relevant comparators than small mail businesses.
based on an annual range. Profits at the top-end or even
Freight transport and logistics companies are also — to
in excess of that reasonable-profit range may reflect out-
a limited degree — suitable comparable undertakings
performance of the average company due to superior
because they employ similar assets.
operating or commercial performance. As such, such

profits should be permitted by regulatory authorities in
order to preserve incentives for efficiency.
(238) Consequently, the Deloitte-II study admits only
companies with annual revenue higher than EUR 100
(244) Finally, Germany points out that the level of the
million. It leaves a comparator set with 6 postal
reasonable profit should be in line with previous
companies, e.g. the big multinational express parcel
Commission decisions that have approved ROS in the
operators (UPS, FedEx, and TNT Express) and some
range between 7 % and 8 % for railways and bus
other postal operators mostly from the United States
companies ( 2 ).
and the United Kingdom.
VI.3.3. Inappropriate cost allocation and valuation
(239) That comparator set shows a median ROS of 7,4 % for
the period 1998-2007 and a third-quartile ROS of 12 %
(245) Firstly, Germany maintains that any reallocation of
as upper bound for reasonable profit. A larger
universal service burdens to the commercial services
comparable set, which includes 18 logistic and 19
would be factually and legally ill-founded. Pursuant to
freight companies yield a median ROS between 4,6 %
Article 7 of the Postal Directive ( 3 ), any net costs
and 5,7 %, but the Deloitte-II-study expresses some
caused by the universal service obligations are to be
doubts on their comparability to Deutsche Post.
funded by the revenues of the letter monopoly and not

by the commercial services.
(240) Based on the data of both comparable sets, the Deloitte-II
(246) Secondly, Germany considers that the WIK study under
study recommends a range from a lower bound ROS of
estimates certain of Deutsche Post's costs:
6,1 % up to an upper bound ROS of 11,7 % as
benchmark for a reasonable profit.
— The Ablieferungen — which Deutsche Post had to
pay until 1995 — should have been deducted as
(241) Concerning the determination of the appropriate profit
costs and not been used as a proxy for the capital
range from the comparator set, the Deloitte-II study
costs or reasonable profit. Based on the KPMG study,
notes that a simple multi-year ROS as reasonable profit
Germany rejects the WIK study's contention that the
benchmark underestimates reasonable profit because (i)
Ablieferungen should be considered as a substitute
there would be significant and systematic dispersion from
for tax and dividend payments. It maintains that
one year to the other and (ii) there would be also a
the Ablieferungen constituted a burden for
significant dispersion between the companies' profit
Deutsche Post that could not be justified on factual
ability within the sector. Using an inappropriately low
reasonable profit benchmark would incur the risk of
( 2 ) Commission Decision 2008/C 35/10 on public service contract
deterring efficient investment.
between Deutsche Bahn Regio and the Lnder of Berlin and Bran
denburg (OJ C 35, 8.2.2008, p. 13); Commission Decision
2009/325/EC of 26 November 2008 on Czech Republic concerning
( 1 ) Germany considers that the results of the Deloitte studies are
public service compensations for Southern Moravia Bus Companies
confirmed by the CRA study that Belgium submitted in the State
(OJ L 97, 16.4.2009, p. 14).
aid Case SA.14588 (see recital 44).
( 3 ) OJ L 15, 21.1.1998, p. 14.

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or economic terms. The Ablieferungen should
that with low capital intensity, a high return on capital
therefore have been deducted as universal service
employed could be linked to a low return on sales. As
costs in addition to a reasonable profit as remun
most risks are related to revenue and costs, the return on
eration for the employed capital.
sales is the appropriate measure to determine the excess
iveness of profits, especially for companies with low
capital intensity. To the extent that the NERA studies
— The depreciation charges should have been based on
use in the alternative the return on sales as profit
the realistic market values of the fixed assets as
measure, it shows that Deutsche Post had a higher
reported in the tax accounts and not on the lower
return on sales as Royal Mail but a significantly lower
book values in the annual accounts.
return on sales than TNT. The returns on sales for
DPWN's mail division — which the NERA studies had
estimated — therefore remain significantly below the
benchmark for excessive profits.
— The costs for private employees' supplementary
pension commitments should have fully been taken
into account.
(252) Germany considers therefore that the 2006 NERA Study
and its update are neither of relevance for the State aid
VI.4. Comments on interested parties' comments
investigation nor could they provide sufficient evidence
VI.4.1. Pension subsidy
for excessive profits.
(247) Germany recalls that Deutsche Post was not legally liable
or economically capable to take over civil servants'
pension liabilities in 1995. Consequently, pension costs
(253) Regarding UPS' allegation that Deutsche Post's own
constitute a debt incurred by the State in line with the
accounting data would not be a good basis for
Commission's decision in Poste Italiane ( 1 ). Thus, the
analysing the revenues and burdens of the universal
pension subsidies have not granted a financial
services, Germany retorts that the accounts would have
advantage to Deutsche Post.
been checked and approved by a certified accountant as
well as by the Postal regulator. It adds that they are in
line with the requirements of the Postal Directive.
(248) While UPS emphasises that a normal operator has to
bear its own pension costs, Germany argues that civil
servants' pension costs are abnormal costs which
cannot be compared to social contributions paid by the
(254) Regarding the transfer pricing arrangements between
competitors of Deutsche Post for their private employees.
Deutsche Post and DPEED, Germany emphasises that
The latter only pay the employer's share to the social
those arrangements follow the requirements of the
contribution scheme without facing legacy costs
2001 Antitrust Decision. Deutsche Post sent reports on
relating to pension claims.
their fulfilment to the Commission on a regular basis.
There have been no objections by the Commission so far.
(249) Germany emphasises the necessity of an overcompen
sation calculation, as the comments submitted by UPS
and FFIP are based on the assumption that the
(255) Finally, Germany objects to the inclusion of the capital
Commission conducted such a calculation to prove that
endowments granted to Deutsche Post by Germany in
Deutsche Post was overcompensated.
1995 (e.g. assets in the form of real estate and infra
structure) into the calculation of overcompensation.
Germany argues that it already submitted pertaining
VI.4.2. Universal service compensation
information with its comments to the 1999 Opening
Decision. As the Commission neither objected to those
(250) Referring to the 2006 NERA study, Germany highlights
measures in the 2002 State aid decision nor mentioned
that the Commission itself considered in the context of
them in the 2007 Opening, the capital endowments
Case COMP/37.821 that the returns on capital employed
could not be subject of the current investigation.
— which the 2006 NERA Study estimated for DPWN's
mail division — were insufficient to prove the existence
of excessive pricing for the purposes of Article 102
TFEU.
VI.4.3. Wage level
(256) Germany agrees that market-average wages should be
(251) On a more general level, Germany considers that the
used as benchmark to calculate social contribution rates
return on capital employed is not the appropriate
paid by competitors of Deutsche Post. However,
measure for determining excessive profits. It explains
according to Germany, such a benchmarking is in
contradiction to the 2011 Extension decision, as the
Commission uses adjusted gross wages of civil servants
( 1 ) Commission Decision 2002/782/EC of 12 March 2002 on the aid
granted by Italy to Poste Italiane SpA (formerly Ente Poste Italiane)
instead of market-average wages in order to calculate the
(OJ L 282, 19.10.2002, p. 29).
amount of social contributions paid by competitors of

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Deutsche Post. Following the expert study by Prof.
(261) In order to ascertain whether the pension subsidy has
Weber, market-average wages only amount to approxi
provided a selective financial advantage, it needs to be
mately […] % of civil servants' gross wage. As such, it is
determined whether it allowed Deutsche Post to avoid
not reasonable to use adjusted civil servants' gross wage
costs that would normally have had to be borne by
as a benchmark to calculate social contribution rates.
the company and have thus prevented market forces
from producing their normal effect ( 1 ).
(257) According to Germany, BIEK's assumption that Deutsche
(262) The Commission cannot accept Germany's claim based
Post uses agreed wages in the transport sector as a
on the Combus case-law: It must be borne in mind that
benchmark to calculate the differences in wage costs
the Combus ruling has not been confirmed by the Court
borne by Deutsche Post as compared to its competitors
of Justice. Several of the Court of Justice's rulings
is ill-founded. The expert study by Prof. Weber shows
contradict the theory that compensation for a structural
that Deutsche Post calculates market-average wages on
disadvantage exempts a measure from being qualified as
basis of actual wages paid by its competitors.
aid. In that regard, the Court of Justice has constantly
held that the existence of aid is to be assessed in relation
to the effects and not in relation to the causes or
objectives of state intervention ( 2 ). The Court has also
held that the concept of aid includes advantages
granted by public authorities which, in various forms,
VII. AID ASSESSMENT OF PENSION SUBSIDY
reduce the charges which are normally included in the
budget of an undertaking ( 3 ). The Court of Justice has
VII.1. Assessment of existence of aid pursuant to
also clearly stated that the costs linked to remuneration
Article 107(1) TFEU
of employees naturally place a burden on the budgets of
undertakings, irrespective of whether or not those costs
(258) Article 107(1) TFEU provides that ‘any aid granted by a
stem from legal obligations or collective agreements ( 4 ).
Member State or through State resources in any form
In that context, the Court of Justice has considered that
whatsoever which distorts or threatens to distort
the fact that State measures aim to compensate for
competition by favouring certain undertakings or the
additional costs cannot constitute grounds for disqual
production of certain goods shall, insofar as it affects
ifying them from the definition of aid ( 5 ).
trade between Member States, be incompatible with the
internal market’. In determining whether a measure
constitutes State aid within the meaning of Article 107(1)
TFEU, the Commission has to apply the following
criteria: the measure must be imputed to the State and
use State resources, it must confer an advantage on
(263) The Commission takes the view that the liabilities a
certain undertakings or certain sectors which distorts
company bears under employment legislation or
competition and it must affect trade between Member
collective agreements with trade unions, such as
States.
pension costs, are part of the normal costs of a
business which a firm has to meet from its own
resources ( 6 ). Those costs are inherent to the economic
activity of the undertaking ( 7 ). It does not matter in that
regard whether the undertaking bears the pension costs
by directly financing the pensions of its former staff (as is
(259) As the pension subsidy is based on the Article 16
PostPersG 1994 and financed out of the public budget,
( 1 ) Case C-301/87 France v Commission [1990] ECR I-307,
paragraph 41.
it is imputable to the State and it is granted through State
( 2 ) Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13; Case
resources within the meaning of Article 107(1) TFEU.
310/85 Deufil v Commission [1987] ECR 901, paragraph 8; Case
Moreover, as the pension subsidy has only been
C-241/94 France v Commission ECR I-4551, paragraph 20.
granted to the Pension fund to relieve Deutsche Post
( 3 ) C-387/92 Banco Exterior [1994] ECR I-877, paragraph 13; afore
from the civil servants' pension costs and therefore ulti
mentioned judgment in Case C-241/94, paragraph 34
(
mately benefits Deutsche Post, it is selective.

4 ) Case C-5/01 Belgium v Commission [2002] ECR I-1191,
paragraph 39
( 5 ) Case 30/59 Gezamenlijke Steenkolenmijnen in Limburg v High Authority
[1961] ECR 3, paragraphs 29 and 30; aforementioned judgment in
Case C-173/73, paragraphs 12 and 13; aforementioned judgment in
Case C-241/94, paragraphs 29 and 35; Case C-251/97 France v
Commission [1999] ECR I-6639, paragraphs 40, 46 and 47; and
Joined Cases C-71/09 P, C-73/09 P and C-76/09 P Comitato
VII.1.1. Financial advantage from 1995 pension reform
Venezia vuole vivere v Commission [2011] ECR I-0000, paragraphs
90 to 96.
(260) On the basis of the Combus judgment, Germany claims
( 6 ) La-Poste decision, recital 141, and Community guidelines on State
that the pension subsidy would not provide any financial
aid for rescuing and restructuring firms in difficulty (OJ C 244,
1.10.2004, p. 2), recital 63.
advantage because it relieved Deutsche Post from excess
( 7 ) Case T-20/03 Kahla v Commission [2008] ECR II-2305, paragraphs
social costs.
194 to 197.

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the case for the civil servants employed by Deutsche
constitutes a State aid, but will be assessed in the context
Post) or by paying a contribution to the private
of the analysis of the compatibility of that measure.
employees' pension insurance, which in turn uses the
collected contributions to finance the pensions of all
private employees. The decisive element is that, in one
way or another, undertakings bear the full costs for
(268) In particular, Germany has argued that in order to
pensions.
identify an advantage in favour of Deutsche Post
deriving from the pension subsidy, the contribution
made by Deutsche Post to the pension fund should be
compared to private employers' share of the pension
contributions excluding the employees' share. That
(264) In addition, the Commission notes that since its estab
argument relates to the compatibility of the measure,
lishment in 1950, Deutsche Bundespost had the legal
but for the sake of completeness the Commission will
form of a Sondervermoegen. A Sondervermoegen, while not
note, on the one hand, that the employer has the
enjoying independent legal personality, has to establish
obligation to pay the total contribution rate to the
its own budget and its own accounting system (§ 3
social insurances on behalf of the employee and out of
PostVwG 1953 and § 48 HGrG ( 1 )). According to the
the employee's gross salary. On the other hand, and
legal rules applicable to the budgets of public entities,
more fundamentally, when a Member State relieves the
the budget has to contain the costs for personnel,
employees of a certain undertaking from a burden
which include the costs for pensions of retired civil
otherwise due, it translates into an advantage for the
servants formerly employed by the public entity (§ 10
employer, because such a measure will reduce the
HGrG). In consequence, since 1950, Deutsche Post has
difference between the gross salary and the net salary.
financed those costs from its revenues. § 15 PostVwG
It will make it possible for the employer to hire or retain
1953 explicitly prohibits any subsidy from the federal
employees by paying a lower gross salary. Therefore, the
budget to Deutsche Bundespost. That rule has been
advantages concerning the employee's share of the social
taken over in § 37(1) PostVerfG 1989.
contribution also constitute an advantage for the
employer.
(265) The PostVerfG 1989 restates that obligation in its
(269) Germany has also argued that a financial advantage for
chapter on personnel. Deutsche Post was required,
Deutsche Post from the compensation of its excess social
pursuant to Article 54(2) PostVerfG 1989, to finance
costs would only exist if the granted compensation was
out of its own resources all costs, including the
higher than the total excess social costs that Deutsche
pensions of its civil servants.
Post has had to incur for the civil servants working in the
price regulated and in the non-price regulated sector. The
Commission recalls that the compensatory nature of a
measure does not rule out its qualification as State aid
and further makes reference to recitals 262.
(266) After the second postal reform in 1995, Deutsche Post
continued to assume the responsibility to finance all
pecuniary claims of civil servants under the terms of
Article 2(3) PostPersRG 1994 but was partly relieved
(270) Moreover, Germany maintains that the civil servants'
from the payment of the civil servants' pension costs.
pension rights have always been a genuine liability of
Pursuant to Article 16(1) PostPersRG 1994, Deutsche
the federal government. Consequently, as the 1995
Post paid for the years 1995 to 1999 a yearly lump
pension reform did not change the federal government's
sum of EUR
2
045 million to the Pension fund.
liability towards the civil servants, the pension subsidy
Pursuant to Article 16(2) PostPersRG 1994, the annual
does not provide any financial advantage to Deutsche
lump-sum payments were replaced as of 2000 by a
Post.
contribution which is calculated as 33 % of the salary
mass of the civil servants. Article 16(2) PostPersRG
1994 furthermore sets out that the remainder of the
pension costs was to be borne by the Federal Budget
(271) It is not disputed that the federal government was the
from 1995 onwards. Figure 1 shows the annual
ultimate guarantor of civil servants' pensions before and
payments from the Federal Budget for each year since
after 1995, even if the Commission observes in that
1995, starting with EUR 151 million in 1995.
regard that § 3 PostVwG 1953 and § 2 PostVerfG

1989 clearly state that the only the Sondervermoegen,
and not the Federal State, are liable for the debts of the
Sondervermoegen. However, until 1995, pursuant to the
applicable postal and general legislation, the pension
(267) It follows that the arguments raised by Germany aiming
payments were included in the budget of the Sonderver
at demonstrating that DPAG supported pension costs
moegen Deutsche Bundespost. Those payments had to be
higher than those of its private competitors are irrelevant
covered in their entirety by the revenues realised by the
for the purpose of finding whether the pension subsidy
Sondervermoegen. For the State aid assessment, who is
the ultimate guarantor of the civil servants' pensions is
not decisive. The key question is who had, pursuant to
( 1 ) ‘Haushaltsgrundstzegesetz vom 19. August 1969 (BGBl. I S. 1273),
das zuletzt durch Artikel 1 des Gesetzes vom 27. Mai 2010 (BGBl. I
the applicable legislation, the obligation to finance them
S. 671) gendert worden ist’
in the ordinary course of events. In that regard, the

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PostVwG 1953, the HGrG and the PostVerfG 1989
(277) Furthermore, the Commission observes in that regard
establish clearly that the obligation lies in its entirety
that Deutsche Post and its holding company DPWN
with Deutsche Post.
started in 1997 acquiring parcel operators in European
and international markets: In 1999, DPWN was already
market leader in the European express and parcel
markets with annual revenues of about EUR 4,600
(272) Furthermore, the financing of pension costs is a normal
million. With the acquisition of DHL in 1998, DPWN
operating cost for any undertaking, public or private, be
entered into the Asian and North-American markets.
it incorporated or not. Both between Member States and
Further acquisition of logistic companies (e.g. Danzas,
within Member States, a broad variety of financing mech
Nedlloyd, ASG, Air Express International) turned
anisms for pensions has developed. Often, different
DPWN into one of the world's major providers of air
systems apply depending on when a person has been
cargo, sea freight, and global logistic services.
hired. Therefore, Deutsche Post has to carry pension
Furthermore, DPWN became also active in mail
costs for the people it employs, including its civil
markets outside Germany (e.g. acquisition of Unipost in
servants, in the same way as any other undertaking.
Spain and Williams Lee in the United Kingdom). Between
The fact that the way of financing the pensions of civil
1998 and 2007, DPWN acquired, in total, companies
servants is different from the way of financing the
worth about EUR 21 000 million ( 2 ).
pensions of private employees has no impact on the
obligation of Deutsche Post to include the financing of
their pension costs in its normal operating expenditures.
Accepting the argument of Germany would be
tantamount to saying that the State could relieve public
(278) The Commission finds therefore that the pension subsidy
undertakings from a major cost item linked to their
constitutes aid within the meaning of Article 107(1)
ordinary operations.
TFEU.
(273) Finally, when Germany puts forward that Deutsche Post
VII.2. Assessment of existing aid pursuant to
never has had enough own resources to finance the civil
Article 108(1) TFEU
servants' pension liabilities, that argument overlooks the

fact that the assessment of a financial advantage is inde
(279) Germany is of the opinion that if the pension subsidy
pendent of the economic capabilities of an undertaking.
was to be considered as State aid it should be qualified as
existing aid pursuant to Article 1(b)(i) of Regulation (EC)
No 659/1999. It argues that the State has been the
ultimate debtor and the party liable to finance the civil
(274) As the 1995 pension reform relieved Deutsche Post
servants' pensions since the entry into force of the
partially from the obligation to finance the pension
relevant provisions of German Basic Law in 1953. It
costs of its civil servants, the pension subsidy has
maintains that the creation of the Pension fund did not
provided a financial advantage to Deutsche Post.
change that obligation.
VII.1.2. Distortion of competition and affectation of trade
(280) According to Article 1(d)(i) of Regulation (EC)
(275) When aid granted by a Member State strengthens the
No 659/1999, the concept of new aid includes all aid
position of an undertaking compared with other under
which existed prior to the entry into force of the
takings competing in intra-Union trade, the latter must
Treaty in the respective Member States, that is to say,
be regarded as affected by that aid. In accordance with
aid schemes and individual aid which were put into effect
settled case-law ( 1 ), for a measure to distort competition
before, and are still applicable after, the entry into force
and affect trade between Member States it is sufficient
of the Treaty.
that the recipient of the aid competes with other under
takings on markets open to competition.
(281) Until 1995, pursuant to the applicable postal and general
(276) In Germany, the markets for parcels, newspapers and
legislation, pension payments were included in the
periodicals have never been closed to competition. On
budget of the Sondervermoegen Deutsche Bundespost
those markets, POSTDIENST has always been in
and had to be covered in their entirety by the revenues
competition with other companies, including under
realised by the Sondervermoegen (see detailed assessment
takings from other Member States (such as UPS, FedEx,
of that legislation above in recitals 262 and 263). Before
TNT Express, GLS, or DPD). From 1998 to 2007, DPAG
the second postal reform in 1995, Deutsche Post was
gradually lost its exclusive right for letters. As the market
therefore required to finance out of its own resources
opened up for competition, competitors also entered that
the pensions of its civil servants and did not receive
market. Therefore, the aid affects trade between Member
any aid that had the objective to relieve Deutsche Post
States and is liable to distort competition.
from pension costs.
( 1 ) Case T-214/95 Het Vlaamse Gewest v Commission [1998] ECR II-717.
( 2 ) See also WIK study, Section 2.

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(282) The creation of DPAG and the Postal pension fund in
(289) In the 2007 Extension decision, the Commission
1995 led to a complete overhaul of pension funding for
envisaged the possibility that the pension subsidy might
civil servants. After that second postal reform in 1995,
be at least partly compatible with the internal market as
Deutsche Post took over the principal obligation to
public service compensation on the basis of
finance all pecuniary claims of civil servants under the
Article 106(2) TFEU. Germany, in its reply to the 2007
terms of Article 2(3) PostPersRG 1994 but was partly
extension decision, insisted that the pension subsidy, if it
relieved from the payment of the civil servants' pension
was aid, had to be assessed on the basis of
costs. Pursuant to Article 16(1) and (2) PostPersRG 1994,
Article 107(3)(c) TFEU, and not on the basis of
Deutsche Post was no longer liable to finance the
Article 106(2) TFEU. In the 2011 extension decision,
pension costs beyond the lump sum payments (period
the Commission further described a method for
1995-1999) or the defined contributions (as of 2000).
assessing the compatibility of the pension subsidy on
The remaining deficit has been further on covered by the
the basis of Article 107(3)(c) TFEU and Germany
pension subsidy.
provided comments in that respect.
(283) Therefore, the pension subsidy constitutes new aid
because it was set up in 1995.
(290) According to the case-law of the Court ( 2 ), it is up to the
Member State to invoke possible grounds of compati
bility and to demonstrate that the conditions for such
compatibility are met. It follows a fortiori from that case-
(284) With regard to Germany's reference to the Commission
law that the Commission is under no obligation to assess
statement in Case T-266/02, the Commission first of all
the compatibility of the pension subsidy under
points out that in paragraph 54 of the judgment the
Article 106(2) TFEU in the present case, where the
General Court reports the position of Germany (and
Member State and the beneficiary explicitly reject a
not, as alleged by Germany, of the Commission).
possible compatibility assessment under that provision.
Paragraph 54 of the judgment illustrates, that even in
the view of Germany, the 2002 Decision did not assess
the pension subsidies. Further on, paragraph 61 of the
judgment reports the position of the Commission:
(291) The Commission therefore will assess whether the
pension subsidy is a compatible aid pursuant to
Article 107(3)(c) TFEU. Pursuant to that provision, aid
An erster Stelle entgegnet die Kommission, dass sie nur den
to facilitate the development of certain economic
Transferzahlungen der DB-Telekom Bedeutung für die ange
activities or of certain economic areas may be declared
fochtene Entscheidung beigemessen habe.
compatible with the internal market where such aid does
not adversely affect trading conditions to an extent
contrary to the common interest.
(285) The judgment does therefore not support the view of
Germany that the declaration of the Commission’s
agent would have implicitly authorised the pension
subsidy. In any event, it is obvious that such a
(292) According to the case-law, the Commission may declare
declaration could not have that effect.
State aid compatible with the internal market if the aid
contributes to the attainment of an objective of common
interest ( 3 ), is necessary for the attainment of that objec
(286) Moreover, in Case T-421/07 (
tive ( 4 ), and does not adversely affect trading conditions

1 ) the General Court found
that the 1999 Opening decision concerned the pension
to an extent contrary to the common interest (propor
subsidy as well and that the procedure concerning that
tionality).
measure was not closed with the 2002 Decision.
VII.3.1. Market opening of the postal sector as an objective of
(287) In conclusion, since the Commission has never taken a
decision declaring that the pension subsidy was not an
common interest
aid or was a compatible aid, the Commission concludes
(293) Postal services contribute to social, economic and terri
that the pension subsidy constitutes a new aid measure.
torial cohesion in the Union. The opening of postal
services to competition, which has started at EU level
in 1998, has brought about increased quality, more
VII.3. Assessment of compatibility pursuant to
Article 107(3)(c) TFEU
( 2 ) Case C-364/90 Italy v Commission, paragraph 20.
( 3 ) Case T-162/06 Kronoply v Commission [2009] ECR II-1, especially
(288) The derogations provided for in Articles 107(2) TFEU
paragraphs 65, 66, 74 and 75.
and 107(3)(a)(b) TFEU do clearly not apply.
( 4 ) Case T-187/99 Agrana Zucker und Strke v Commission [2001] ECR
II-1587, paragraph 74; Case T-126/99 Graphischer Maschinenbau v
Commission [2002] ECR II-2427, paragraphs 41 to 43; Case
( 1 ) Case T-421/07 Deutsche Post v Commission [2011] ECR II-0000,
C-390/06 Nuova Agricast [2008] ECR I-2577, paragraphs 68
paragraphs 52 and 75.
and 69.

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efficiency and better responsiveness to users ( 1 ). Market
(297) In the present case, the Commission recognises that in
opening has allowed the establishment of an internal
the absence of any State intervention to relieve Deutsche
market for postal services. It therefore contributes to
Post of part of the pension liability for its civil servants,
the objective of the establishment of the internal
Deutsche Post would not be able to compete on its
market set out in Article 3(3) TEU.
merits with its competitors. The social charges inherited
from the past which are not supported by its competitors
would have forced it out of the competitive parts of the
market for postal service.
(294) Deutsche Post has not recruited any civil servants since
its incorporation as a joint stock company in 1995. The
liabilities for social benefits for civil servants therefore
have their origin in the period prior to the opening of
(298) In the La Poste Decision, the Commission for the first
the postal market to competition. They are comparable
time assessed the necessity and proportionality of an aid
to so-called stranded costs. Such costs come from
measure that provided relief from pension costs for civil
commitments entered into prior to the beginning of
servants which were hired before market opening. In that
market opening which can no longer be honoured
decision, the Commission assessed whether the pension
under the same conditions in a competitive market
subsidy equalises the level of compulsory social
environment because the historic operator is no longer
contributions between the historic operator and other
able to pass on the corresponding costs to consumers. If
undertakings in the mail/parcel sector ( 5 ).
Deutsche Post had not at least partially been relieved
from those ‘legacy’ costs, it would have had to exit the
market.
(299) The Commission will apply that same approach in this
Decision. The Commission will carry out its analysis in
three steps:
(295) The Commission has recognised that the gradual tran
sition from a situation of largely restricted competition to
one of genuine competition at Union level must take
place under acceptable economic conditions
( 2 ).
1. In a first step, the Commission establishes the level of
Therefore, it has accepted in a number of decisions
wage-based social security contributions of other
that Member States grant State aid to relief the historic
undertakings in the mail/parcel sector.
operator of a part of its ‘legacy’ pension liabilities ( 3 ).
2. Then it has to establish the level of wage-based social
VII.3.2. Necessity and proportionality of the pension subsidy
security contributions which Deutsche Post bears for
its civil servants.
(296) The Commission has considered in its decisional practice
that pension relief has to be limited to what is necessary
to equalise the rate of social contributions that the
historic operator bears as a cost with the rate of social
3. Finally, it has to verify whether or not the two levels
contributions born by its competitors ( 4 ).
are equal.
( 1 ) See Directive 2008/6/EC of the European Parliament and of the
Council of 20 February 2008 amending Directive 97/67/EC with
VII.3.2.1. Level of wage-based social security
regard to the full accomplishment of the internal market of
Community postal services (OJ L 52, 27.2.2008, p. 3), recitals 9 ff.
contributions of other undertakings in the
( 2 ) See Commission Communication relating to the methodology for
mail/parcel sector
analysing State aid linked to stranded costs, Commission letter SG
(2001) D/290869 of 6.8.2001.
(300) The level of wage-based social security contributions is
( 3 ) Decision 2005/145/EC on the State aid granted by France to EDF
determined by two factors: the rate and the wage base to
and the electricity and gas industries; Commission Decision
which it is applied.
2008/208/EC on the State aid implemented by France in connection
with the reform of the arrangements for financing the retirement
pensions of civil servants working for La Poste (OJ L 65, 8.3.2008,
p. 11); Commission Decision 2009/944/EC concerning the reform
(a) Calculation of the benchmark rate
of the method by which the RATP pension scheme is financed (State
aid C 42/07 (ex N 428/06)) which France is planning to implement
in respect of RATP (OJ L 327, 12.12.2009, p. 6); Commission
(301) Private competitors have to compulsorily finance both
Decision of 20 December 2011 in Case C 25/2008 concerning
the employer's share as well as the employee's share
the Réforme du mode de financement des retraites des fonction
out of their revenues. As shown in Figure 2, that the
naires de l'Etat rattachés à France Télécom, not yet published.
total contribution rate has since 1995 been in the
( 4 ) Commission Decision 2008/208/EC on the State aid implemented
range of 38 % to 42 % of the private employee's gross
by France in connection with the reform of the arrangements for
wage (= net wage + employee's share). The employer's
financing the retirement pensions of civil servants working for La
Poste; Commission Decision 2009/944/EC concerning the reform of
and employee's shares of the social contribution rate
the method by which the RATP pension scheme is financed (State
have been each in the range of 19 % to 21 % of the
aid C 42/07 (ex N 428/06)) which France is planning to implement
gross wage (see the Annex for a more detailed time
in respect of RATP; Commission Decision of 20 December 2011 in
series).
Case C 25/2008 concerning the Réforme du mode de financement
des retraites des fonctionnaires de l'Etat rattachés à France Télécom,
not yet published.
( 5 ) La Poste Decision, recital 166.

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(302) Unlike private employees' share of the social contribu
employees' contribution to the statutory health and
tions, the civil servants' share only includes 30 % to 50 %
nursing care insurances (which is e.g. in 2006 equal to
of their health care expenses but not any further
8,50 % of the private employees' gross wage).
contributions to their pension, health and nursing care
expenses. Deutsche Post's contribution goes therefore
beyond the private employer's share and includes the
entire pension cost as well as the remaining health and
nursing care expenses.
(305) As civil servants do not pay any contributions to
statutory pension and unemployment insurances,
Deutsche Post has to assume their equivalent, in order
to effectively bear a level of social contributions
equivalent to the compulsory social contributions that
(303) To determine an equivalent benchmark rate for Deutsche
a private undertaking has to finance out of its revenues.
Post, account therefore has to be taken of the fact the
civil servants' contribution is below the private
employees' contribution.
(306) The benchmark rate for Deutsche Post's wage-based
social contributions (hereinafter benchmark rate) has
therefore to include the total contribution rates (=
(304) The civil servants' contribution of 30 % to 50 % to their
employer's + employee's share) for the pension and
health and nursing care expenses can be assumed to
unemployment insurances and the employer's share of
largely corresponds in its economic effect to the private
the health and nursing insurances, as illustrated in Table:
Figure 7
Determination of benchmark rate for DP's social contribution
(307) As shown in Figure 8, the benchmark rate has been
competitors who are only liable to pay the employer's
between 30 % and 34,1 % of the private employees'
share. However, as the following simplified example
gross wage in the period 2003-2010 ( 1 ).
shows (based on 2006 contribution rates), Deutsche
Post would clearly be advantaged compared to private
competitors if the benchmark rate were only equal to
the employer's share of social contributions:
(308) Germany objects that any benchmark above the
employer's share of the social contribution rate would
put Deutsche Post at a disadvantage compared to
1. Deutsche Post and a private competitor pay the same
net wage of EUR 79,5 to a civil servant and a private
( 1 ) For a detailed presentation see the Annex.
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2. The employer's and employee's share of the social
also been significantly below the contribution rate of
contribution rate both amount to 20,5 % of the
33 % of the incurred civil servant wages that the 1995
private employee's gross wage. Adding the net wage
Pension law defined as the benchmark for Deutsche
of EUR 79,5 to the employee's share of EUR 20,5
Post's contribution to the Pension fund. The German
gives the gross wage of EUR 100. The total social
legislator did therefore not intend that Deutsche Post
contributions are therefore equal to EUR 41 (= 41 %
should only finance the employer's share but required
of private employee's gross wage).
Deutsche Post to pay a significantly higher contribution
to the civil servants' pension costs and to assume as well
all remaining social cost (e.g. contribution to civil
servants' health care expenses).
3. By contrast, Germany considers that Deutsche Post
should only assume the employer's share of the
social contributions in addition to the civil servant's
contribution to the health care expenses (assumed to
be equal to the private employee's contribution of
(311) The Commission rejects therefore the use of the
EUR 7,5 to the health and nursing insurances).
employer's share of the social contribution rate as
benchmark rate because civil servants — unlike private
employees — are not obliged to contribute to the
pension and unemployment insurances. Therefore,
those contributions must necessarily be included into
the benchmark rate to ensure that both Deutsche Post
and private competitors bear, directly or indirectly,
equivalent levels of contributions.
4. Germany calculates the employer's share based on the
incurred civil servant wage of EUR 87 (e.g. the sum of
the net wage of EUR 79,5 and the civil servant's
contribution to health care expenses of EUR 7,5).
The social costs are therefore the sum of EUR 17,8
(employer's share of 20,5 % of incurred civil servant
wage of EUR 87) and the civil servants' contribution
to health care expenses of EUR 7,5.
(b) Calculation of the wage base
(312) As the level of social contributions that Deutsche Post
has to bear for its civil servants should be aligned to the
level of compulsory social contributions that private
competitors have to carry, it is important that Deutsche
Post is not only subject to an equivalent rate but also
5. Based on Germany's calculations, the civil servant's
that the rate is applied to an equivalent wage base. As
social costs would amount to only EUR
25,3
shown in the example above, calculating the employer's
compared to EUR 41 for the private employee.
share of 20,5 % based on the incurred civil servant wages
leads to a contribution of EUR 17,8 while the private
competitor has to assume EUR 20,5 (e.g. 20,5 % based
on the gross wage of EUR 100).
(309) Although Deutsche Post and the private competitor pay
the same net wage, Deutsche Post would have to bear
social costs that are only about 62 % of the compulsory
social contributions for a private employee if the
employee's share of the social contributions is included
(313) It is therefore necessary to construct a gross wage for the
in the benchmark.
civil servant (hereinafter referred to as civil servants' gross
wage) that provides an equivalent wage base to the
private employees' gross wage. It is assumed that the
civil servants' contribution to health expenses equals
the private employees' contribution to the health and
nursing insurances. Therefore, the remaining difference
between gross and incurred wage amounts to the
employee's share of the contributions to the pension
(310) Furthermore, it must be noted that since 1999 the
and unemployment insurances. The following formula
employer's share of the social contribution rate (which
converts the incurred wage into a gross wage that is
has been in the range of 19 % to 21 % since 1995) has
equivalent to the private employees' gross wage:

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Table 6
Calculation of civil servants' gross wage (based on 2006 contribution rates)
Civil servants' gross wage =
100
incurred wage 100 – employee share of unemployment and pension insurance
100
incurred wage 100 – 3,25 9,75 incurred wage 1,15
(314) Taking e.g. the 2006 contribution rates, the civil servants'
Commission considers that it is necessary to distinguish
gross wage is 15 % higher than the incurred civil servant
between the period from 1995 to 2002 and from 2003
wage. That percentage quantifies therefore the error that
until today.
would be made if the incurred wage were used instead of
the gross wage as a base to calculate Deutsche Post's
social contributions compared to private competitors'
compulsory social contributions. The example given at
(a) Deutsche Post's contribution in the period 1995-2002
recital 308 illustrates that point as the employer's share
of EUR 20,5, which is correctly based on the gross wage,
(318) Germany claims that, notably with regard to the annual
is 15 % higher than an employer's share of EUR 17,8
lump-sum payments to the Pension fund of EUR 2 045
which would result on the incorrect basis of the
million in the period 1995 to 1999, Deutsche Post paid
incurred wage.
social contributions above the compulsory social
contributions that competitors had to pay. Therefore,
for the period up to 1999 but also over the entire
period of the investigation, Deutsche Post would have
then paid at least the same if not higher contributions
than those private companies had to face. Accordingly, it
(315) To conclude, the Commission finds that the benchmark
would not be possible to maintain that the pension
rate for Deutsche Post's social contributions must be
subsidy has placed Deutsche Post in a more favourable
based on the employers' and the employees' contribution
position than its competitors. The Commission has to
to pension insurance and unemployment insurance and
reject argument because it does not take into account
the employers' contribution to health and nursing care.
the specific regulatory arrangements decided by the
The benchmark rate has to be applied to the civil
German authorities with respect to the coverage of
servants' gross wage (as defined in Table 6).
costs of non-price regulated services.
(319) The Commission finds in this decision that Deutsche Post
VII.3.2.2. Establishment of the wage-based social security
has been placed at an advantageous positions vis-à-vis
contributions borne by Deutsche Post for its
competitors in the non-price regulated markets because
a share of the incurred social costs for the civil servants
civil servants
working in those services has not been borne by those
(316) Pursuant to Article 16(1) PostPersRG 1994, Deutsche
services themselves. Instead, that share of the incurred
Post had to pay a yearly contribution of EUR 2 045
social costs has been put on the account of the price-
million to the Pension fund for the period 1995-1999
regulated services whose revenues have been maintained
which totals EUR 10 225 million. Pursuant to § 16(2)
at a sufficiently high level to allow the financing of those
PostPersRG 1994, Deutsche Post pays as of the year
costs in addition to the incurred costs for the price-
2000 a rate of 33 %. That rate is applied to the
regulated services.
incurred wage for civil servants.
(320) In fact, Deutsche Post's management accounts show since
1995 that Deutsche Post has allocated to the non-price
regulated services only an amount of social contributions
(317) However, the assessment of the necessity and propor
based on the regulatory contribution rate. Furthermore,
tionality of the aid also has to take into consideration
the 2002 and subsequent regulatory accounts confirm
the fact that from an economic point of view Deutsche
that practice. Therefore, the economic advantage for the
Post does not have to bear the entire contribution of
non-price regulated services has thus existed before and
EUR 2 045 million corresponding to 33 % of the
after 1999 because those services have been
incurred wages to the Pension Fund. In that regard, the
unambiguously relieved from incurred costs.

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(321) To the contrary, Germany's claim that Deutsche Post has
level of regulated prices fulfilled the requirements of
suffered from a comparative disadvantage in the price-
PostG 1997, he decided that the prices were to be kept
regulated markets because it had to finance higher social
at the existing level of 1997 until 1999. The Minister of
costs due to the lump-sum payments in the period 1995
Economics and Technology later decided as well on
to 1999 is not supported by the facts. First, Deutsche
27 March 2000 that the prices which were approved
Post still benefited from the exclusive right for most of
on 1 September 1997 should remain in force until
its regulated services. Second, and more importantly, the
31 December 2002.
prices for the services subject to the exclusive right were
set at a sufficiently high level to cover those costs from
the captive consumers.
(325) The regulated prices were therefore kept at the
historically high level and were not reduced to a level
such that Deutsche Post would have suffered from a
comparative disadvantage.
(322) For the period until 1995, price regulation based on the
Postdienstverordnung ( 1 ) of 24 June 1991 was applicable.
It set out that prices for the monopoly were to be
balanced. In the administrative practice, this included
pension costs. For the period 1995-1997, price regu
lation was based on the Gesetz über die Regulierung
(326) In fact, Deutsche Post has been placed in an even better
der Telekommunikation und des Postwesens of
position compared to its competitors since 2000,
14. September 1994 (BGBl. I S. 2325, 2371). Article 4
because the defined contributions to the Pension fund
in conjunction with Article 2 and Article 7 thereof
were reduced to 33 % of the incurred civil servant
allowed the price-regulated revenues to cover not only
wages. That level gives in absolute terms a reduction in
the costs incurred by the regulated services, including the
costs, which fell from EUR 2 045 million to EUR 735
contributions to the pension fund, but also to finance
million (even further in the subsequent years, as the
costs of non-price regulated services.
number of civil servants was shrinking and that
phenomenon was only off-set in part by the increase
in wages). As the regulated prices were kept at the
historically high level, Deutsche Post was allowed to
earn since 2000 significantly positive profits from the
price-regulated services.
(323) As Deutsche Post's annual accounts show, at the time of
the 1995 pension reform, the level of the regulated
prices was kept at the pre-existing level which had
been in place when Deutsche Post had still to assume
the total pension costs. While the pension costs were
(327) Reviewing Deutsche Post's profitability from the price-
later either capped (for the period 1995-1999) at the
regulated services over the whole period 1995-2002,
level of the lump sum or fixed (as of 2000) at 33 % of
the WIK study comes to the conclusion that Deutsche
the salary mass of the civil servants, which decreased year
Post has e.g. until 1999 not suffered from losses from
by year, the regulated prices were not correspondingly
the price-regulated services despite the lump-sum
decreased to cover only social contributions in line with
payments to the Pension fund. Since 2000, the WIK
the compulsory social contributions that competitors
study even shows significantly positive returns.
pay. As the defined contributions to the Pension fund
until 1999 (EUR 2 045 million per year) remained about
equal to the pension costs in 1994, the economic
situation did not change for Deutsche Post with regard
to the coverage of pension costs from the price-regulated
services. Both the level of Deutsche Post's revenues as
(328) The Commission has therefore to reject Germany's claim
well as its contribution to the Pension fund remained
that Deutsche Post was placed in a worse position than
in balance.
competitors with regard to the coverage of social
contributions in the price-regulated services, and that
the pension subsidy was necessary and proportionate
before 2002.
(324) The PostG 1997 clearly set out that the regulated prices
should not only cover the ‘efficient’ costs but also
burdens from e.g. civil servants' social costs. The PostG
(329) Notwithstanding the above, the Commission has to
1997 recognised therefore explicitly that the price-
admit that in this case there is insufficient evidence for
regulated revenues had to be set such that the coverage
it to quantify exactly the level of wage-based social
of the entire lump-sum payments was ensured. As the
security contributions that Deutsche Post paid in the
German legislator appeared to consider that the current
years 1995 to 2002. It considers that such a quantifi
cation could not properly based on ex-post de facto
( 1 ) Bundesgesetzblatt 1994 Teil I Seite 336.
findings that a certain proportion of social costs from

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non-price regulated services was shifted to be financed
Postal regulator for the first time in the 2002 price cap
out of price regulated revenues and that Deutsche Post
decision The Postal regulator also approved the burden
was not disadvantaged in overall terms under the pension
on excess social contribution in the 2007 and 2011 Price
fund arrangements because the price regulated revenues
cap decisions. The fact that only a share of the price-
were de facto set at a level which was sufficient to cover
regulated services is subject to ex-ante price control does
its contributions to the pension fund including the
not alter the Commission's assessment. Deutsche Post
shifted burdens. It is also not possible to devise a
was still authorised to recover the entire burden by
method as to how the Member State could calculate
making use of its dominant position. In that regard, it
such a level for that period. The Commission finds,
does not make a difference whether the regulator
after an assessment of legal basis for the regulated
exercises control ex ante or ex post.
prices in force during the period 1995-2002, that it
cannot be inferred with certainty from the legislative
provisions how the competent authorities decided the
composition of the regulated prices on an ex-ante basis.
In particular, it cannot be proven in this case with
certainty that when the competent authorities fixed the
regulated prices at such a level that ultimately covered
(333) The Postal regulator has consistently approved Deutsche
the shifted costs de facto, they unequivocally earmarked
Post's claim that the burden #2 on incurred social costs
in their decisions a share of the regulated price to
in excess of the regulatory contribution rate should be
precisely cover the amount of claimed burdens from
refinanced by the price-regulated revenues. Thus for
the non-price regulated services.
2001, to determine the excess social costs (burden #2),
the incurred social contributions of Deutsche Post for its
civil servants of [40 to 45 %] of the incurred wages ( 1 )
were compared to the regulatory benchmark. That
benchmark consists of the employers' share of social
contribution, accident insurance and supplementary
pension insurance, which together total [20 to 25 %]
(330) Unlike the 2002, 2007 and 2011 price cap decisions
of the incurred wages.
where those burdens are explicitly acknowledged and
approved by the Postal regulator, that earlier de facto
coverage could have been due to considerations of the
competent pricing authorities as regards the evolution of
other cost components or the development of other
business variables. That earlier de facto coverage is
therefore in this case not sufficient to quantify exactly
(334) That difference between the two rates of [15 to 20 %] of
and with certainty to which extent the competent auth
the incurred civil servant wage was included in burden
orities have increased the regulated price to take account
#2 and covered by the price-regulated revenues (see
of the claimed burdens for the non-price regulated
Table 2).
services.
(335) From an economic point of view, Deutsche Post
(331) By contrast, for the period since 1 January 2003, it can
therefore does not bear a rate of 33 % of the incurred
be clearly established from the 2002, 2007 and 2011
wages as wage-based social security contributions, but
Price cap decisions how the Postal regulator set the
only a rate of [20 to 25 %]. Since 2003, the remainder
composition of the regulated prices. It is certain that
has been borne by captive consumers, who pay tariffs
they were unambiguously set at a higher level to cover
calculated to cover Deutsche Post's social costs for the
the burdens of the non-price regulated services out of the
services for which Deutsche Post had an exclusive right
price-regulated revenues.
until 2007, respectively for the universal services for
which Deutsche Post enjoys a dominant position.
(b) Deutsche Post's contribution since 2003
(336) In order to compare the rate applied to the incurred
(332) The PostG 1997 allows Deutsche Post to request that,
wages to the level of social security contributions of a
when the regulator is setting the allowed level of
competitor, it is then still necessary to convert the
revenues from the exclusive right and the regulated
incurred wage into the gross wage of the civil servants.
services, the regulator includes into the costs to be
recovered from consumers, inter alia, the ‘excess social
( 1 ) E.g. the sum of the 33 % contribution to the pension fund and [7 to
burden’ as well as the costs for the efficient provision of
12 %] expenditures for health and nursing care in percentage of the
the universal service. That method was applied by the
incurred civil servant wage.

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(337) The incurred wage corresponds to between [85 % and
the benchmark rate. The Commission is unable to
90 %] of the civil servants' gross wage ( 1 ). On that
calculate the exact difference between those two levels,
basis, [20 to 25 %] of incurred wages corresponds to
nor to devise a method that would enable the Member
[17,5 to 22,5 %] of the gross wage.
State to do so.
(b) The period since 2003
(338) As a result of the limitation of Deutsche Post's
contribution to the Pension Fund at 33 % and the
(340) In order to compare the regulatory contribution rate to
approval, by the Postal regulator, of burden #2,
the benchmark rate, it must be noted that the regulatory
Deutsche Post thus pays a level of wage-based social
contribution rate is based on the incurred civil servants'
security contributions of [17,5 to 22,5 %] of the gross
wages that are a too low wage base compared to the
wage of the civil servants.
private employees' gross wage. The regulatory
contribution rate needs therefore to be recalculated as a
percentage of civil servants' gross wage.
VII.3.2.3. Comparison
(a) The period 1995-2002
(341) Carrying out the comparison for 2006, the non-price
regulated services have effectively carried social
(339) In the period 1995-2002 the revenues from the tariffs
contributions of [17,5 to 22,5 %] of the civil servants'
applied by Deutsche Post in the reserved sector
gross wage (respectively [20 to 25 %] of the incurred
considerably reduced the actual economic burden of
civil servants' wage) compared to the benchmark rate
the contribution made by it to cover its social costs.
of 33,5
%. In terms of social contribution rates,
However, in the absence of an earmarked element of
Deutsche Post has therefore benefited from a
the tariff, the Commission can only establish that the
comparative advantage of [10 to 15 %] of the civil
level of Deutsche Post's contribution remained below
servants' gross wages in 2006.
Table 7
Comparison of the regulatory contribution rate and the benchmark rate for DP's social contribution in
2006
Social contribution rate Regulatory
contribution
rate
Benchmark rate for DP's social
contribution charge
in percentage of Private
employee's
gross
wage Civil
servant's
gross
wage Civil
servant's
gross
wage
Employer's share 20,50
% 17,84
% 20,50
%
Health insurance 6,65
% 5,79
% 6,65
%
Nursing insurance 0,85
% 0,74
% 0,85
%
Unemployment insurance 3,25
% 2,83
% 3,25
%
Pension insurance 9,75
% 8,48
% 9,75
%
Employee's share 20,50
%
Health insurance 6,65
%
Nursing insurance 0,85
%
Unemployment insurance 3,25
% 3,25
%
Pension insurance 9,75
% 9,75
%
Supplementary pension insurance [0
to
5
%]
Accident insurance [0
to
5
%]
Contribution rate [17,5
to
22,5
%] 33,50
%
( 1 ) See the Annex for more details.

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(342) Table 7 shows that the benchmark level for Deutsche
civil servants is therefore 33,5 % of gross wages. The
Post amounts to 33,5 % of the civil servants' gross
relief that goes beyond that level is in principle
wage and is [10 to 15] percentage points higher than
neither necessary nor proportionate.
the level which Deutsche Post has de facto borne.
(346) For the period 1995-2002 it is impossible to determine
(343) The difference of [10 to 15] percentage points for 2006
the exact part of the relief that goes beyond what can be
goes beyond the nominal difference of [8 to 13]%
accepted as necessary and proportionate. Since 2003 that
between the benchmark rate of 33,5 % and the regu
part corresponds to [10 to 15 %] of gross wages.
latory contribution rate of [20 to 25]%. The difference
includes a top-up of [2 to 3] percentage points that
accounts for fact that the nominal regulatory
contribution rate of [20 to 25]% has been inappro
VII.3.2.5. Impact of the particular competitive and regu
priately based on the incurred civil servants' wage and
latory environment on necessity and propor
not on the civil servants' gross wage that is equivalent to
tionality
the private employees' gross wage.
(347) The assessment of the necessity and the proportionality
of the pension subsidy has, however, to take into
consideration the particular competitive and regulatory
VII.3.2.4. Preliminary conclusion on necessity and
environment.
proportionality
(344) The pension subsidy, which covers the funding need of
the Pension fund that goes beyond the contribution of
(348) As explained in Section II.2.1, Deutsche Post enjoyed
33 % of incurred wages of Deutsche Post's civil servants,
until 31 December 2007 an exclusive right for certain
is neither necessary nor proportionate, for the following
letter services. It was entrusted by § 52 PostG 1997 until
reasons:
that date with the universal service obligation foreseen in
Chapter 2 of Directive 97/67/EC of the European
Parliament and of the Council ( 1 ) and § 11 PostG
1. Between 1995 and 2002 Deutsche Post actually bore
1997. It has since 1 January 2008 continued to
costs below the benchmark level, but the exact
assume the universal service obligation on a voluntary
difference cannot be determined.
basis.
2. Since 2003 Deutsche Post has on average only borne
(349) As long as and to the extent that Deutsche Post enjoyed
costs of about [17,5 to 22,5]% of the civil servants'
an exclusive right for certain letter services, its
gross compared to the average benchmark rate of
competitors could not compete for that part of the
32 % of the civil servants' gross wage; the remainder
postal market. Therefore, the fact that for the civil
has been born by the consumer, because the revenues
servants who were in charge of the services falling
authorised under the price cap include the burden on
under the exclusive right the Postal regulator allowed
excess social costs which cover the remaining [10 to
Deutsche Post to fully refinance all incurred social costs
15 %] of civil servants' gross wage.
beyond the level of wage-based social security
contributions of its competitors through increased
regulated prices was unlikely to affect trade to an
extent contrary to the common interest.
(345) The difference in the rates since 2003 comes from two
effects:
(350) The rationale for the universal service obligation is that
1. The level of wage-based social security charges which
in a competitive market, postal operators will not offer
is borne by undertakings in the mail/parcel sector is
certain services in rural and remote areas, or only at
41 % of gross wages. In order to compare it to the
prices that are not affordable. Therefore, Article 4 of
level that Deutsche Post pays for its civil servants, it is
Directive 97/67/EC obliges Member States to ensure
necessary to make a correction taking into account
that users enjoy the right to a universal service
the fact that the civil servants bear 30 % to 50 % of
involving the permanent provision of a postal service
their health and nursing care expenditures. That
of specified quality at all points in their territory at
contribution by the civil servants is equivalent to
affordable prices for all users.
the employees' share of health and nursing care
expenditures of 7,5 % of gross wages.
(351) The German national legislation places in that regard a
particular burden on any postal operator which enjoys a
2. The contribution of Deutsche Post is calculated based
dominant position on a market which falls within the
on the incurred wage, not on the gross wage of the
civil servants. The benchmark rate for Deutsche Post's
( 1 ) OJ L 15, 21.1.1998, p. 14.

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remit of the universal services. Pursuant to § 2 PDLV ( 1 ),
VII.3.3. Conclusion
such an operator has to offer its services on the same
conditions to all users. Up to now, only Deutsche Post
(354) It can therefore be concluded that, from 2003 onwards,
has enjoyed such a dominant position and has been
Deutsche Post has assumed for the civil servants working
subject to that obligation.
for its non-price regulated services a level of wage-based
social security contributions that has been 11 to 14
percentage points below the level that competitors have
(352) Since its incorporation, Deutsche Post has not received
paid.
any State aid as compensation for universal service
obligations. For the services for which it enjoys a
dominant position, the Postal regulator has, however,
Figure 8
approved increased regulated prices to finance the costs
Comparative advantage in social contribution rate with
of ensuring the universal service. When assessing the
non-price regulated services (contribution rates in
proportionality and necessity of the pension subsidy,
percentage of civil servants' gross wage)
the Commission considers it appropriate to take that
fact into account.
[…]
(355) That lower level of contributions is neither necessary nor
proportionate to attain the objective of a gradual market
(353) The Commission concludes therefore that for the civil
servants' social costs that have been incurred for the
opening in postal services. On the markets concerned,
provision of the price-regulated services, which fall
Deutsche Post is in fierce competition with other under
under the universal service obligation and for which
takings. The Commission therefore considers that the
Deutsche Post has enjoyed a dominant position, the
lower level of contributions affects trade to an extent
fact that the Postal regulator has approved a full pass-
contrary to the common interest and cannot be
on of those social costs through higher regulated prices
declared compatible with the internal market.
— even if those social costs go beyond the level that is
normally assumed by competitors — does not affect
(356) The incompatible share of the pension subsidy for the
trade to an extent contrary to the common interest.
period since 1 January 2003 is calculated as the
That conclusion is based on the particular competitive
difference between the benchmark rate and regulatory
and regulatory environment in which those services are
contribution rate based on the civil servants' gross
performed. Therefore, it cannot be extended to cover
wage sum in the non-price regulated services according
other sectors.
to the formula below:
Table 8
Calculation formula for incompatible aid for period since 1 January 2003
Incompatible aid =
= (Benchmark rate — regulatory contribution rate)
× Civil servants' gross wage sum in non-price regulated
services
(357) Based on the available data, the calculations estimate a
has effectively been 11 to 14 percentage points lower
cumulated comparative advantage of EUR [500 to 1 000]
than the level that private competitors have had to
million for the period 2003-2010 (see annex). The
carry. The 2011 Extension decision quantified the
annual amount of the incompatible aid has decreased
resulting annual advantage to be in the range of
over time from EUR […] million in 2003 to EUR […]
EUR 100 to 200 million.
million in 2010 due to the shrinking workforce of civil
servants.
(359) In reply to the 2011 Extension decision, Germany raises
two main objections:
VII.3.4. Response to the arguments presented by Germany
(358) The 2011 Extension decision expressed doubts about the
1. Germany insists that the benchmark rate can only be
necessity and proportionality of the pension subsidy
based on the employer's share of social contributions,
because the non-price regulated services benefited from
because private undertakings have no legal obligation
a level of wage-based social security contributions that
to pay the employees' contribution. Furthermore, the
benchmark rate should take into account the fact that
( 1 ) Postdienstleistungsverordnung vom 21. August 2001 (BGBl. I S.
Deutsche Post has always paid higher than ‘com
2178).
petitive’ wages.

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2. Germany claims that the Commission has failed to
(366) It would be disproportionate to increase the aid to such
establish that the revenues from the price-regulated
an extent that since 1995 Deutsche Post would have to
universal services were sufficient to finance the
finance only social costs based on ‘competitive’ wages
claimed burdens of excess social costs.
that do not reflect labour market conditions in earlier
years. Differences in wage levels for personnel hired at
different points in time between incumbents and new
entrants are a normal fact of economic life.
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’
(367) In the France Telecom case ( 1 ), the Commission also
rejected the argument presented by France that the
(360) Germany argues that any benchmark above the
level of wage-based social security contributions should
employer's share of the social contribution rate would
also take into account the fact that civil servants are paid
put Deutsche Post at a disadvantage compared to
higher wages than the personnel employed by
competitors who are only liable to pay the employer's
competitors. The Commission pointed out in that
share.
context that thanks to civil servants, at the time of the
market opening the historic operator had well-qualified
and competent personnel, without which it would not
have been able to maintain its market position. In any
event, it would be entirely artificial to single out specific
(361) With regard to that first argument, the Commission
observes that civil servants — unlike private employees
disadvantages of the postal incumbent and to disregard
— are not obliged to contribute to the pension and
its considerable advantages e.g. in terms of market share,
unemployment insurances. Therefore, those contributions
brand recognition and customer base.
must necessarily be included in the benchmark rate to
ensure that both Deutsche Post and private competitors
carry, directly or indirectly, equivalent levels of contribu
tions.
(368) Finally, Deutsche Post's calculations cannot credibly
establish that, without the obligation to employ civil
servants, Deutsche Post would have achieved the
calculated savings in wage costs. Even assuming that
(362) Germany furthermore maintains that the benchmark rate
the civil servants would in 1995 have effectively
is applied neither to the gross wage of the civil servants
changed to a private employee status, it is neither estab
nor to the incurred wage of the civil servants, but to
lished how many civil servants would have been replaced
‘competitive’ wages. In the 2002, 2007 and 2011 regu
in 1995 and later years by private employees nor at
latory accounts, Deutsche Post considers that the ‘com
which wage level. Just the sheer number of Deutsche
petitive wage’ should be based on the ETV wage or on
Post's civil servants in 1995 ( 2 ) renders implausible the
collective wage agreements for the postal sector from
assumption that it would have legally and economically
2003.
possible to replace since 1995 all civil servants by equally
productive private employees at a lower wage.
(363) In the 2009 regulatory accounts, the ‘competitive’ wage
is defined as the 2007 minimum wage, which is even
(369) The Commission therefore rejects those two claims made
lower than the ETV wage.
by Germany with regards to the benchmark rate and the
wage.
(364) Germany claims that the calculation based on those
‘competitive’ wages is necessary to place the social
VII.3.4.2. On Germany's claim that price-regulated
costs of Deutsche Post at the same level as those of its
revenues have not been sufficient to finance
competitors.
the claimed burdens
(370) Germany claims that the Commission only assessed the
level of wage-based social security contributions for the
non-price regulated services but did not verify whether
(365) The Commission cannot accept that argument because
the profits from price-regulated universal services were
the aid must be limited to the minimum necessary to
sufficient to finance the claimed burdens.
ensure that the gradual transition from a situation of
largely restricted competition to one of genuine
( 1 ) Commission decision of 20 December 2011 in Case C 25/2008, not
competition at Union level takes place under acceptable
yet published in the OJ, recitals 110 and 111.
economic conditions.
( 2 ) About 140 000 civil servants in 1995.

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(371) Germany presents two lines of reasoning. First of all, it
Table 9
claims that the Commission did not prove that the
national regulator effectively approved the burdens
Price-setting rule according to Article 20(2) PostG 1997
which Deutsche Post has claimed. Secondly, Germany
argues that, even if the regulator had approved those
Price cap for regulated services =
burdens, the profits from price-regulated universal
= Efficient costs for regulated services + burdens =
services were insufficient to finance them. Germany
submitted two expert studies by Professor Weber and
= Total costs for regulated services + burden for non-
CTcon to show that the price-regulated services have
regulated services
not been sufficient to cover the claimed burdens on
excess social costs and, consequently, Deutsche Post has
been under-compensated for its excess social costs.
(375) The Postal regulator has to set the regulated prices such
that the revenue covers the price-regulated services' own
‘efficient’ costs and the approved burdens. Expressed in a
slightly different way, the regulated prices fully finance
the total costs of the regulated services — irrespective of
whether they are earmarked as ‘burden’ or ‘efficient’ cost
— as well as the share of the burden that comes from
the non-price regulated services. Article 20(2) PostG
1997 ensures therefore that the approved burdens are
fully covered by the price-regulated revenues. Contrary
(a) The 2002, 2007 and 2011 price cap decisions are based
to Germany's claim, it is therefore excluded by law that
on the regulatory accounts submitted by Deutsche Post and
the price-regulated services suffer from under-compen
approve all burdens that have been claimed
sation due to the take-over of excess social costs from

the non-price regulated services.
(372) Since the 2002 Price cap decision, it has also been clearly
documented that the Postal regulator approved the
burdens that Deutsche Post had and set the regulated
prices accordingly to cover them. The 2007 and 2011
Price cap decisions also confirm that the Postal regulator
accepted Deutsche Post's claims and approved the fact
that the claimed excess social costs were financed by
(376) The expert study defines in a first step the excess social
the price-regulated revenues.
costs for civil servants as the difference between all social
costs incurred by Deutsche Post for its civil servants
(contribution to the Pension fund, health expenses,
accident insurance, further miscellaneous insurance
payment) and the employers' contribution for pension,
health and nursing care based on the 2007 minimum
wage. In a second step, it compares that difference to
burden #2.
(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
(373) The study by Professor Weber covers the period 1995-
(377) The expert study by Professor Weber suffers from two
2010 and recognises that Deutsche Post has not only
main defects: First, it exaggerates the level of the excess
benefited from the pension subsidy but also from a full
social costs. Second, it overlooks that as a result of the
coverage of burden #2 by the price-regulated revenues
exaggeration, the excess social costs include cost items
(see Section VI.1.4.2(a) for a detailed description of the
for which Deutsche Post receives compensation not
study).
under burden #2, but under different headings. In
detail, the Commission would point to the following
defects:
(374) To assess the expert study, it is useful to first recall the
(378) First, the expert study calculates the excess social costs
price setting rule of Article 20(2) PostG 1997. It requires
based on the employer's share of the social contribution
that the price cap covers the efficient costs of the price-
rate. However, the burden #2 is calculated based on the
regulated services plus the burdens from social excess
regulatory contribution rate. As the latter is higher than
costs and net costs from the universal service obligation:
the employer's share of the social contribution rate, the

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expert study's excess social costs are higher than burden
(383) Germany's objection that the Commission erred in the
#2. Thus, the expert study includes excess social costs
2011 Extension decision to only calculate the
that the Postal regulator has considered as ‘efficient’ costs.
comparative advantage for the non-price regulated
services must therefore be rejected because, pursuant to
Article 20(2) PostG 1997, the Postal regulator has to set
the price cap so that the price-regulated revenues cover
the efficient costs of the price-regulated services and the
approved burdens.
(379) Second, the expert study omits that burden #1 on excess
wages also covers a share of the excess social costs (e.g.
due to the difference between incurred wages and the
‘competitive’ wage benchmark) and that they are
subsequently financed through burden #1. Further
(c) No proof of under-compensation of excess social costs
social costs that the expert study includes are covered
based on WIK study
by separate burdens (e.g. the payments to BAnstPT by
(384) Referring to the 2009 regulatory accounts, Germany
burden #6) and consequently compensated. Thus, while
maintains that Deutsche Post has actually suffered
the total sum of incurred social costs is shown for civil
significant losses with its price regulated services since
servants, it is omitted that also other burdens than
1990 because the regulated revenues have been eaten
burden #2 cover excess social costs.
up by the costs for the price-regulated services as well
as the net costs from the universal service obligations ( 1 )
Thus, for that reason as well, Germany denies that the
profits from price-regulated services would have been
sufficient to finance any excess social costs from the
non-price regulated services.
(380) Third, it must be taken into account that the burden #2
contains excess social costs for both civil servants and
private employees: The private employees' incurred social
contributions were higher than the regulatory benchmark
before 2003 because interest expenses of about EUR […]
(385) The Commission observes in that regard first that, since
million for the private employee's supplementary pension
2003, it is obvious from the Postal regulator's decisions
insurance were included in those costs. Since 2003, those
that he has earmarked a share of the price-regulated
interest costs have been allocated to the financial costs
revenues as compensation for burden #2. The existence
and the incurred social costs for private employees have
of the contribution from the price-regulated revenue is
been below the regulatory benchmark since then.
therefore unambiguously established by the regulator's
decisions.
(386) Second, the WIK study shows, in contrast to the 2009
(381) As the expert study includes the total of burden #2 as
regulatory accounts, that the price-regulated services have
compensation for the civil servants' excess social costs,
since 2000 achieved significantly positive profit margins
the burden #2 provided excessive relief before 2003 and
of more than [6,5 to 8,5]% on sales.
insufficient relief since 2003 for the civil servants' social
costs. To calculate the appropriate compensation that
burden #2 has provided for civil servants' social excess
costs, the burden #2 needs to be accordingly split
between civil servants and private employees.
Figure 9
Calculation of ROS for price-regulated services based on
WIK Study
[…]
(382) Consequently, the result of under-compensation is
erroneous because the expert study overlooks that the
claimed excess social costs are not only covered by
burden #2 but and that the Postal regulator has
Note: The calculations are based on the WIK study's adjustments to the
considered a higher share of social costs as ‘efficient’
2009 regulatory accounts. Furthermore, it is assumed that the
price-regulated services cover all losses of the non-price regulated
cost. An appropriate correction of the expert study's
universal services. The lower profit in 2007 is mainly due to an
mistakes on the compensation side puts the burdens
extraordinary depreciation charge for the real estate portfolio.
exactly in balance with the excess social costs as
required by Article 20(2) PostG 1997.
( 1 ) E.g. maintenance of extensive post office network, sixth delivery day.

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(387) The higher profits since 2000 are directly linked to the
compared to the compulsory social contributions that
reduction in the defined pension contributions according
private competitors have to pay. Furthermore,
to the 1995 Pension law: While Deutsche Post had
considering e.g. the infrastructure burden on the post
assumed annual lump-sum payments of EUR 2 045
shop network, it is a purely hypothetical and unprovable
million up 1999, the pension contribution went down
benchmark that Deutsche Post would not have run any
in 2000 to about EUR 735 million (according to 33 % of
own post office since 1990 without the universal
incurred civil servant wages). As the Postal regulator did
obligation. Similarly it cannot be proven whether
not adjust in 2000 the regulated prices downwards in
Deutsche Post could have since 1990 operated only
line with the decreased pension contribution, Deutsche
with personnel for whom it just has to pay wages at
Post's profit increased significantly. The realised profit has
the level of the 2007 minimum wage.
also remained after the 2002 price cap decision on a
high level because the regulated prices were not suffi
ciently decreased to be in line with the price-regulated
services' costs.
(392) The Commission finds therefore that the results of the
WIK study provide a more appropriate calculation of the
costs to be allocated to the commercial service.
(388) With regard to Germany's criticism of the WIK study, the
Commission finds that the WIK study provides a more
appropriate description of Deutsche Post's economic
situation in general and of the profits from the price-
regulated services in particular compared to the 2009
(393) Furthermore, the cost valuation must be in line with
regulatory accounts. The reasons are the following:
general accounting principles, in line with Directive
97/67/EC and Directive 2006/111/EC. Neither the
increased depreciation charges nor the upward
valuation of the supplementary pension costs are
(i) More appropriate allocation of costs to commercial
contained in the annual accounts of Deutsche Post.
services
Such costs are normally financed out of the accounting
profit that a company earns, which holds true for
(389) According to the Chronopost judgment, commercial
Deutsche Post as well as for its competitors. An
services should bear their direct costs as well as
upward re-evaluation would therefore favour Deutsche
provide an appropriate contribution to the common
Post compared to competitors.
costs. The appropriate allocation of costs between
different services can be proven either by external
benchmarks (e.g. market prices) or by internal cost
data ( 1 ).
(ii) Profit benchmarking in consideration of Deutsche
Post's risk position
(390) The 2009 regulatory accounts are based on the principle
(394) Deutsche Post's realised profits have since 2000 been
of Article 20(2) PostG 1997 that mandates that the non-
significantly above the median ROS of 3,48 % of the
price regulated services should only be allocated ‘efficient’
WIK-study as well as the lower bound ROS of 6,1 %
costs while all burdens (e.g. excess costs from the
of the Deloitte-II study. Germany's claim that Deutsche
employment of POSTDIENST staff and net costs from
Post has suffered from such high losses that it has not
the universal service obligation) should be financed by
been able to cover the burdens from the price-regulated
the price-regulated revenues. However, the WIK study
revenues can therefore not be accepted.
finds in its review of the 2009 regulatory accounts that
Deutsche Post allocates too high burdens to the price-
regulated services and too few costs to the commercial
services based on a comparison to the profitability of
private competitors.
(395) Furthermore, the Deloitte-II study, which builds on a
small comparator set of mainly multinational express
parcel operators (e.g. UPS, FedEx, TNT Express), needs
to be critically reviewed. The Deloitte-II study's recom
mendation of a reasonable-profit range starting at a ROS
(391) The results of the WIK study are confirmed by the
of 6,1 % and a median ROS of 7,4 % neglects the fact
assessment of the allegedly ‘competitive’ benchmarks
that Deutsche Post runs a considerably less capital-
that Deutsche Post has used accounts to calculate the
intensive and less risky business:
individual burdens: It has already been shown that the
regulatory contribution rate for the calculation of burden
#2 on excess social costs is a too low benchmark
( 1 ) Chronopost judgment, paragraph 38; Opinion of Advocate General
1. Deutsche Post itself does not operate international
Tizzano for the Chronopost cases, paragraph 54; Commission
Decision of 21 December 2005 on aid measure N 531/05 La
express parcel services, which are operated only by
Banque Postale, recitals 75 ff.
its DHL subsidiaries.

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2. Letter operations, which make up to 75 % of
(398) The conclusions on profit benchmarking are not affected
Deutsche Post's revenues, need significantly fewer
by Germany's reference to reasonable profit rates of 7 %
capital investments compared to the multinational
to 8 % on sales in the railways and bus transport sectors.
parcel operators because the main costs of letter
Those sectors are more capital-intensive and therefore
delivery are the labour costs of postmen. Express
require a higher return on sales to cover capital cost.
parcel operators must invest much more heavily in
On the contrary, those figures confirm that the
capital-intensive equipment ( 1 ).
Deloitte-II study's profit benchmark is more in line
with the average ROS of a capital- rather than of a
labour-intensive industry.
3. Deutsche Post's dominant position on the letter
market was created and guaranteed by the exclusive
right that conferred a captive customer base to
Deutsche Post without having had to undertake any
(c) Conclusions
major investments into marketing and brand name.
By contrast, the multinational parcel operators had to
(399) The Commission has to reject Germany's claim that the
build up their positions in each national market from
price-regulated revenues have not been sufficient to cover
scratch and have established some of the best known
the burdens on excess social costs. Neither the submitted
consumer brands (
expert study nor the 2009 regulatory accounts support

2 ) at their own risk and expense.
Germany's claim.
4. Finally, the market and cost risks of Deutsche Post
have been hedged through the granted public
(400) On the contrary, it is clearly documented by the Price
measures ( 3 )). In particular, price regulation has
cap decision from 2002, 2007 and 2011 that the Postal
provided for coverage of all burdens from the non-
regulator has consistently approved the compensation of
price regulated services ( 4 ).
the claimed burdens out of the price-regulated revenues.
(396) The WIK study is therefore right to apply a profit
benchmark below the Deloitte-II range to take proper
VII.3.5. Elimination of incompatible aid for the period from
account of the lower capital intensity and lower
1 January 2003
business risks of Deutsche Post compared to multi
national express parcel operators. However, it is not
(401) According to the Court's established case-law, the
necessary to determine precisely the level of the
Commission is competent to decide that the Member
benchmark profit because the realised average ROS
State concerned must abolish or alter aid ( 5 ) when it
margins of 8,3 % are already higher than the Deloitte-II
has found that that aid is incompatible with the
study's lower bound estimate of a ROS of 6,1 %. Even
internal market. As the Court has consistently held,
based on Germany's own expert study, it could not be
that obligation is designed to re-establish the previously
established that Deutsche Post would have been under-
existing situation ( 6 ). In that context, the Court has estab
compensated since 2000.
lished that that objective is attained once the recipient
has repaid the amounts granted by way of unlawful aid,
thus forfeiting the advantage which it had enjoyed over
its competitors on the market, and the situation prior to
the payment of the aid is restored.
(397) In any case, Germany's criticism of the WIK study is hard
to understand because the median ROS of 3,48 % does
not go beyond the level of profit that the regulator and
Deutsche Post have themselves considered as reasonable.
On the one hand, as explained in Section IV.4.3, the
benchmark ROS of 3,48 % yields in absolute numbers
(402) In line with that case-law, Article 14(1) of Regulation
a higher profit than the capital costs (e.g. […] and […])
(EC) No 659/1999 lays down that: ‘where negative
claimed by Deutsche Post in its regulatory accounts and
decisions are taken in respect of unlawful aid, the
approved by the regulator. On the other hand, WIK's
Commission shall decide that the Member State
median ROA of 7,66 % is similar to the return on
concerned shall take all necessary measures to recover
capital that Deutsche Post […].
the aid from the beneficiary […]. The Commission
shall not require recovery of the aid if this would be
contrary to a general principle of Community law.’
( 1 ) E.g. worldwide air transport and integrated delivery network.
( 2 ) E.g. UPS or TNT.
( 3 ) E.g. increases in regulated prices, public transfers, public guarantee,
( 5 ) Case 70/72 Commission v Germany [1973] ECR 813, paragraph 13.
and pension subsidy
( 6 ) Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission
( 4 ) E.g. excess social costs above the ‘competitive’ benchmark
[1994] ECR I-4103, paragraph 75.

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(403) The Commission further observes that the 2007 and the
a split based on personnel costs in accordance with the
2011 Extension decisions focussed on the period 1990-
regulatory accounting of Deutsche Post. Such an
2007. However, the pension subsidy is a continuous aid
approach might result in a lower civil servants' wage
scheme that did not stop in 2007. Likewise the compen
sum than estimated by the split based on revenue
sation of the burdens from the price-regulated revenues
shares. Germany submitted comments on 2 and
did not cease in 2007. Indeed, in its submission of
19 January 2012 which suggest that, at least with
2 January 2012, Germany provided data on the
regard to the 2011 Price cap decision, the relative
pension subsidy and the price-regulated revenues
sharing of burdens within the price-regulated services
including 2010. Therefore, the Commission concludes
and also between price-regulated and non-price
that the recovery of the incompatible share of the
regulated services has been changed. That information
pension subsidy should not stop in 2007 but should
seems to indicate that from 2008 onwards a share of
continue until go until the date of notification of this
burdens has been allocated to non-price regulated
Decision.
services. In the execution of this decision, the precise
amount of the incompatible aid will be calculated in
cooperation with Germany, taking those considerations
into account.
(404) For the calculation of the aid element which has already
been put at the disposal of Deutsche Post, it should be
pointed out that, according to the case-law of the Court
of Justice, no provision of Union law requires the
(408) Despite all its efforts, the Commission has been unable to
Commission, when ordering the recovery of aid
arrive at a reliable assessment of the amount of incom
declared incompatible with the internal market, to fix
patible aid for the period 1995 to 2002. Equally, it does
the exact amount of the aid to be recovered. It is
not seem possible to incorporate in this Decision calcu
sufficient for the Commission's decision to include
lation parameters which are sufficiently precise to enable
information enabling the Member State to work out
the Member State (whether alone or in cooperation with
itself, without overmuch difficulty, that amount (
the Commission) to carry out the final calculation during

1 ).
the Decision's implementing phase. In those particular
circumstances, respect for the Member State's rights of
defence and the principle of legal certainty constitute
(405) The incompatible aid has to be calculated according to
obstacles to recovery pursuant to Article 14(1) of Regu
the formula in Table 8 based on the regulatory
lation (EC) No 659/1999, according to which ‘the
contribution rate and the benchmark rate, as defined in
Commission shall not require recovery of the aid if this
the annex and shown in Table 7, and the civil servants'
would be contrary to a general principle of Community
gross wage as defined in Table 6. The amount of incom
law’.
patible aid granted each year should bear interest until
recovery. Interest should be established pursuant to
Chapter V of Commission Regulation (EC) No 794/2004
(409) The recovery should therefore start at 1 January 2003
of 21 April 2004 implementing Council Regulation (EC)
and continue until the comparative advantage for the
No 659/1999 laying down detailed rules for the appli
non-price regulated services has ceased to exist.
cation of Article 93 of the EC Treaty ( 2 ).
(410) For the time period from the date of notification of this
(406) The calculations in the annex, which estimate the incom
decision, it must be ensured that the level of wage-based
patible aid for the period from 2003 to 2010, excluding
social security contributions that Deutsche Post pays for
interest, are based on the assumption that civil servants
its civil servants is not lower than the level paid by its
work in the same proportion for price-regulated and
competitors for private employees. That comparison
non-price regulated services. The available data does
must take into account any compensation Deutsche
not provide information on the exact number of civil
Post receives on the basis of price regulation under §
servants who have worked for the price-regulated and
20 PostG.
non-price regulated services. It is therefore assumed
that the revenue shares of the price-regulated and non-
price regulated services provide a reliable first approxi
VIII. AID ASSESSMENT OF PUBLIC TRANSFERS
mation for the split of the incurred wage costs.
VIII.1. Assessment of existence of aid pursuant to
Article 107(1) TFEU
(407) More detailed data may therefore lead to a more precise
(411) Article 107(1) TFEU provides that ‘any aid granted by a
calculation and change the results. Germany has recently
Member State or through State resources in any form
submitted new information on the civil servants' wage
whatsoever which distorts or threatens to distort
sum in the non-price regulated services for the period
competition by favouring certain undertakings or the
from 1995 to 2007. That information suggests that the
production of certain goods shall, insofar as it affects
civil servants' wage sum should be estimated by means of
trade between Member States, be incompatible with the
internal market’. In determining whether a measure
constitutes State aid within the meaning of Article 107(1)
( 1 ) See, in particular, Case C-480/98 Spain v Commission [2000] ECR
TFEU, the Commission has to apply the following
I-8717, paragraph 25, and Case C-415/03 Commission v Greece
[2005] ECR 0000, paragraph 39.
criteria: the measure must be imputed to the State and
( 2 ) OJ L 140, 30.4.2004, p. 1.
use State resources, it must confer an advantage on

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certain undertakings or certain sectors which distorts
government — whether in its role of tax authority or
competition and it must affect trade between Member
shareholder — to receive income from Deutsche Post. In
States.
that respect, it does not matter whether the Abliefe
rungen fully correspond to the definitions of certain
tax or dividend regimes. In any case, the Ablieferungen
were payments that Deutsche Post had to pay since 1924
(412) The public transfers constitute State resources, because
that generated revenue for the public budget.
they were based on Articles 37, 40 PostVerfG 1989
and Article 2 PostUmwG 1994, and were financed
from public resources, because they came from the
(418) To conclude, the imposition of the Ablieferungen was in
resources of the publicly-owned TELEKOM.
line with the public objective to generate revenues for the
public budget — whether in the form of taxes or
dividends — from a State monopoly. The Ablieferungen
constituted therefore a normal cost that Deutsche Post
VIII.1.1. Financial advantage granted by public transfers
was liable to finance out of its own resources.
VIII.1.1.1. Germany's claim of Ablieferungen as special
charge
VIII.1.1.2. Germany's claim of public transfers in
(413) Germany claims that the public transfers would only
accordance with private-investor behaviour
have compensated the Ablieferungen that were costs
that private competitors would not have normally had
(419) Germany claims that it acted partly as a private investor
to finance. It views the Ablieferungen as a levy ‘sui
when granting the public transfers because the public
generis’ which could be qualified neither as a tax nor a
transfers financed profitable investments into Deutsche
dividend.
Post's network.
(414) Deutsche Post had to pay the Ablieferungen, which
(420) However, as the public transfers were granted based on
ranged between 6,6
% and 10
% of the earned
accrued losses as opposed to on investment plans, it is
revenues, from 1924 until 1995. According to the
evident that a private investor would have never adopted
KPMG report, the Bundesverfassungsgericht in its
such an investment strategy.
judgment of 22 March 1984 did not define the exact
legal nature of the Ablieferungen but characterised them
as income for the public budget (‘Erwerbseinkünfte’).
Furthermore, the Ablieferungen were identified as costs
(421) Consequently, the public transfers provided a financial
(‘Kosten der Leistung’) that Deutsche Post had to pay for
advantage to Deutsche Post.
the provision of its services.
VIII.1.1.3. Germany's claim of compensation of net costs
(415) Although the Bundesverfassungsgericht did not define
from universal service obligation
exactly to which extent the Ablieferungen should be
considered as a substitute for taxes or dividends, it is
(422) Germany claims that the public transfers would not
clear that the Ablieferungen generated revenue for the
constitute aid because they compensated the net costs
public budget:
of the universal service obligation.
(416) Firstly, many Member States used the revenues of the
(423) The Court ruled in the Altmark judgment ( 1 ) that public
postal and telecommunication monopolies as an
service compensation does not constitute State aid for
income source for the public budget in the past. As
the purposes of Article 107 TFEU provided that four
BUNDESPOST and their predecessors were up to 1995
cumulative criteria are met: First, the recipient under
exempted from general taxes because of their public-law
taking must actually have public service obligations to
status, an imposition of a sui-generis levy was used to
discharge, and the obligations must be clearly defined.
generate income for the public budget from those
Second, the parameters on the basis of which the
sectors. Furthermore, it was sensible from an economic
compensation is calculated must be established in
point of view to impose levies on those monopolies.
advance in an objective and transparent manner. Third,
Consumers were ready to accept price increases
the compensation cannot exceed what is necessary to
without greatly reducing their consumption so that a
cover all or part of the costs incurred in the discharge
high level of revenue could be generated for the public
of the public service obligations, taking into account the
budget.
relevant receipts and a reasonable profit. Finally, where
the undertaking which is to discharge public service
obligations, in a specific case, is not chosen pursuant
(417) Secondly, unlike private undertakings, Deutsche Post was
to a public procurement procedure which would allow
neither liable to pay direct and indirect taxes nor liable to
for the selection of the tenderer capable of providing
pay any dividends on the provided equity. As a result, the
Ablieferungen were the only means for the federal
( 1 ) Case C-280/00 Altmark Trans GmbH, paragraphs 89 ff.

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those services at the least cost to the community, the
Article 106(2) TFEU. Section 2.4 of the 2005 Framework
level of compensation needed must be determined on
is the latest codification of the meaning and extent of
the basis of an analysis of the costs which a typical
those requirements that have consistently been applied in
undertaking, well run and adequately provided with
the past by the Court of Justice, the General Court and
means of transport, would have incurred.
the Commission.
(424) As Deutsche Post was not selected by means of a public
tender and as Germany has not proven that Deutsche
(431) According to Section 2.4 of the 2005 Framework, the
necessity and proportionality of the granted compen
Post was a well-run undertaking, the fourth condition
sation must be in line with the following principles:
of the Altmark judgment is not fulfilled.
VIII.1.2. Conclusions on existence of aid
1. The amount of compensation may not exceed what is
necessary to cover the costs incurred in discharging
(425) The public transfers were granted from State resources
the public service obligations, taking into account the
and relieved Deutsche Post from costs that are normally
relevant receipts and reasonable profit for discharging
assumed by private undertakings. Germany has not been
those obligations.
able to prove that the public transfers fulfilled the
Altmark criteria to escape the classification of aid.
2. The amount of compensation includes all advantages
(426) For the reasons set out above in Section VII.1.2, the
granted by the State or through State resources in any
public transfers are liable to distort competition and
form whatsoever — irrespective of their classification
affect trade.
for the purposes of Article 107(1) TFEU.
(427) The Commission finds therefore that the public transfers
3. The amount of compensation must be actually used
constitute aid within the meaning of Article 107(1)
for the operation of the service of general economic
TFEU.
interest concerned. Public service compensation used
to operate on other markets is not justified, and
consequently constitutes incompatible State aid.
VIII.2. Assessment of existing aid pursuant to
Article 108(3) TFEU
(428) The public transfers were introduced by Article 37(2)(3)
(432) In the Commission's decisional practice, public compen
PostVerfG 1989 and constitute therefore a new aid
sation for universal service costs has been considered as
measure.
compatible aid (or even no aid) as long as the public
compensation is lower than the incurred net costs of
the universal service ( 3 ).
VIII.3. Assessment of compatibility pursuant to
Article 106(2) TFEU
VIII.3.1. Entrustment with a service of general economic
(429) Article 106(2) TFEU provides that undertakings entrusted
interest
with the operation of services of general economic
interest, or having the character of a revenue-producing
(433) The successive Postal Directives as well as Court juris
monopoly are subject to the rules contained in the
prudence ( 4 ) have always recognised the universal
Treaty, in particular to the rules on competition.
provision of postal services as a service of general
However, it foresees an exception from the rules
economic interest.
contained in the Treaty, providing that a number of
criteria are met: Firstly, there must be an act of
entrustment, whereby the State confers responsibility
(434) Deutsche Post was entrusted until 31 December 2007
for the execution of a certain task to an undertaking.
with the provision of universal postal services by the
Secondly, the entrustment must relate to a service of
successive postal laws.
general economic interest. Thirdly, the exception has to
be necessary for the performance of the tasks assigned
and proportional to that end. Finally, the development of
trade must not be affected to such an extent as would be
VIII.3.2. Necessity and proportionality of public transfers
contrary to the interests of the Union.
(435) Germany maintains that the public transfers were a
proportional compensation measure because they were,
(430) The Commission has — in the 1996 and 2001
according to the 2009 regulatory accounts, significantly
Communications (
below the incurred net costs of the universal service

1 ), ( 2 ) as well as in the 2005
Framework on services of general economic interest —
explained the application of the necessity and propor
( 3 ) Commission Decision of 12 March 2002 on State aid N 650/01 —
tionality requirements for the exception under
Ireland — Equity injection to An Post for the purpose of restruc
turing the counter network (C(2002)941 fin); Decision
2002/782/EC on the aid granted to Poste Italiane SpA.
( 1 ) Services of general interest in Europe (1996/C 281/03).
( 4 ) See e.g. Case C-320/91 Corbeau [1993] ECR I-2533, paragraphs 15
( 2 ) Services of general interest in Europe (2001/C 17/04).
and 19.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/51
obligations from 1990 to 1995. The 2009 regulatory
(441) As the public guarantee for debt obligations was
accounts show in 1995 that, despite the public transfers,
introduced in 1953, and therefore prior to the entry
Deutsche Post would have suffered from an under-
into force of the Treaty of Rome in 1958, it constitutes
compensation of EUR […] million (actualised value in
existing aid according to Article 1(b)(i) of Regulation (EC)
1995) of the cumulated net costs deriving from the
No 659/1999.
universal service obligations for the period 1990-1995.
(442) § 2(4) PostUmwG 1995 put an end to that existing aid.
(436) After the adjustments of the cost allocation and valuation
The fact that the State remained guarantor for the debt
in the 2009 regulatory accounts, the WIK study comes to
obligations issued prior to the incorporation of Deutsche
the conclusion that the public transfers compensated the
Post does not constitute new aid, as the advantage for
cumulated net costs from the universal service obligation
Deutsche Post has been granted at the point in time at
for the period 1990-1995.
which the debt obligation was issued.
(437) The WIK calculations show that the compensation
X. CONCLUSIONS
exceeded the cumulated net costs by EUR [0 to 20]
(443) The Commission finds that the pension subsidy and the
million in 1995. However, the Commission
public transfers constitute aid measures within the
acknowledges that the quality of the accounting data
meaning of Article 107(1) TFEU because they have
for those years is poor. Furthermore, WIK has only
relieved Deutsche Post AG of costs that are normally
accepted the Ablieferungen as a capital cost, and not
assumed by undertakings.
allowed any further reasonable profit.
(444) The Commission finds that Germany has unlawfully
(438) For those two reasons, the Commission finds that the
implemented the pension subsidy and the public
WIK study cannot be used as a base to refute
transfers in breach of Article 108(2) TFEU. The public
Germany's claim that the public transfers constituted a
guarantee for debt obligations issued by Deutsche Post
proportional compensation of Deutsche Post's universal
prior to its incorporation constitutes existing aid, which
service costs.
was abolished in 1995.
Table 10
(445) The pension subsidy is incompatible with the internal
market, in light of Article 107(3)(c) TFEU, to the extent
Calculation of cumulated net costs from universal service
that it provided a comparative advantage for the non-
obligation and public transfers (actualised 1995 values)
price regulated services whose financing from the price-
regulated revenues in light of the burdens was approved
2009 regulatory
by the Postal regulator. Germany has disproportionally
accounts
WIK study
relieved Deutsche Post AG from social contributions,
Cumulated net costs –
EUR
[…] – EUR […]
since under the pension relief arrangements it not only
million
million
granted the pension subsidy but also in addition allowed
Deutsche Post AG to pass on to consumers of the price-
Public transfers +
EUR
6
707
+ EUR 6 707
regulated services a share of the non-price regulated
million
million
services' social costs that should have been borne by
Over-/under-compen
– EUR […] + EUR [0 to 20]
itself in order to be in line with private competitors.
sation
million
million
(446) As a result, the pension relief arrangements have placed
(439) The public transfers are therefore compatible aid
Deutsche Post AG at an advantageous position with
pursuant to Article 106(2) TFEU because they did not
respect to private competitors, since Deutsche Post AG
exceed the net costs that Deutsche Post had incurred
has borne for its non-price regulated services fewer social
because of its universal service obligations.
contribution charges compared to those that private
competitors have to compulsorily bear as costs.
IX. THE PUBLIC GUARANTEE FOR DEBT OBLIGATIONS
ISSUED BEFORE 1995 CONSTITUTES EXISTING AID
(447) Accordingly, the incompatible aid should be calculated as
PURSUANT TO ARTICLE 108(3) TFEU
the difference between the benchmark rate, which aligns
Deutsche Post AG's social contribution charges for the
(440) The Commission observes that the rules on the public
non-price regulated services to those of competitors, and
guarantee for debt obligations were introduced in 1953
the regulatory contribution rate, effectively borne by
by § 22 (4) PostVwG 1953. When the PostVwG 1953
Deutsche Post AG for its non-price regulated services,
was repealed by the PostVerfG 1989, the same provision
multiplied by the civil servants' gross wage sum in the
was taken over in § 40 PostVerfG 1989 without any
non-price regulated services. In particular, the incom
modification.
patible aid should be calculated according to the

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L 289/52
EN
Official Journal of the European Union
19.10.2012
formula in Table 8 based on the definitions of the regu
and to Commission Regulation (EC) No
271/2008
( 1 )
latory contribution rate and the benchmark rate as in
amending Regulation (EC) No 794/2004.
Table 7 and in the Annex and the civil servants' gross
wage as defined in Table 6.
4. From the date of notification of this Decision, Germany
(448) The incompatible aid, which has been put at the disposal
shall ensure that Deutsche Post AG will no longer benefit from
of Deutsche Post since 1 January 2003, should be
a comparative advantage for the non-price regulated services in
recovered from that date until the comparative
light of the financing from the price-regulated revenues of the
advantage will have ceased to exist. Furthermore,
burdens approved by the Postal regulator.
Germany should take the necessary steps to amend the
pension cost relief based on the pension subsidy and the
Article 5
price regulation with a view to abolish the comparative
advantage.
1. Recovery
of
the
aid
referred
to
in
Article
1,
as
foreseen
in
Article 4, shall be immediate and effective.
(449) The Commission finds that the public transfers are a
compatible aid measure pursuant to Article 106(2)
2. Germany
shall
ensure
that
this
Decision
is
implemented
TFEU because they compensated the Deutsche Post's
within four months following the date of notification of this
cumulated net costs from the universal service obligation,
Decision.
HAS ADOPTED THIS DECISION:
Article 6
Article 1
1. Within two months following notification of this
Decision, Germany shall submit the following information to
1. The
pension
subsidy
to
Deutsche
Post
AG
constitutes the Commission:
State aid pursuant to Article 107(1) TFEU and has unlawfully
been granted by Germany in breach of Article 108(3) TFEU.
(a) Total amount (principal and recovery interests) to be
recovered from Deutsche Post AG;
2. The pension subsidy is incompatible with the internal
market in so far as Germany has disproportionally contributed
to the financing of Deutsche Post AG's retired civil servants'
(b) Detailed description of the measures already taken and
pensions.
planned to comply with this Decision;
Article 2
(c) Documents demonstrating that Deutsche Post AG has been
ordered to repay the incompatible aid.
The public transfers that constitute aid to Deutsche Post AG
pursuant to Article 107(1) TFEU and were unlawfully granted
2. Germany shall keep the Commission informed of the
by Germany in breach of Article 108(3) TFEU are compatible
progress of the national measures taken to implement this
with the internal market.
Decision until recovery of the incompatible State aid referred
to in Article 1 has been completed. It shall immediately submit,
Article 3
on simple request by the Commission, information on the
The public guarantee constitutes existing aid to Deutsche Post
measures already taken and planned to comply with this
AG pursuant to Articles 107(1) and 108(3) TFEU.
Decision. It shall also provide detailed information concerning
the amounts of aid and recovery interest already recovered from
Article 4
Deutsche Post AG.
1. Germany
shall
recover
from
Deutsche
Post
AG
the
incom
Article 7
patible aid referred to in Article 1, which has been put at the
disposal of Deutsche Post AG for the period from 1 January
This Decision is addressed to the Federal Republic of Germany.
2003 until the comparative advantage has been brought to an
end.
Done at Brussels, 25 January 2012.
2. The sums to be recovered pursuant to paragraph 1 shall
bear interest from the date on which they were put at the
disposal of the beneficiary until their actual recovery.
For the Commission
3. The
interest
shall
be
calculated
on
a
compound
basis
in
Joaquín ALMUNIA
accordance with Chapter V of Regulation (EC) No 794/2004
Vice-President
( 1 ) OJ L 82, 25.3.2008, p. 1.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/53
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 (*)
2003 2004 2005 2006 2007 2008 2009 2010
Social insurance contribution rates
(1) Total
social
42,20 % 42,00
% 41,54
% 41,00
% 39,70
% 38,93
% 39,25
% 39,55
%
contribution rate
(2) Health
insurance 14,50
% 14,30
% 13,84
% 13,30
% 13,90
% 13,90
% 14,60
% 14,90
%
(3) Nursing
insurance 1,70
% 1,70
% 1,70
% 1,70
% 1,70
% 1,83
% 1,95
% 1,95
%
(4) Unemployment
6,50 % 6,50
% 6,50
% 6,50
% 4,20
% 3,30
% 2,80
% 2,80
%
insurance
(5) Pension
insurance 19,50
% 19,50
% 19,50
% 19,50
% 19,90
% 19,90
% 19,90
% 19,90
%
(6) Employer’s
share 21,10
% 21,00
% 20,77
% 20,50
% 19,85
% 19,46
% 19,48
% 19,33
%
(7) Health
insurance 7,25
% 7,15
% 6,92
% 6,65
% 6,95
% 6,95
% 7,15
% 7,00
%
(8) Nursing
insurance 0,85
% 0,85
% 0,85
% 0,85
% 0,85
% 0,91
% 0,98
% 0,98
%
(9) Unemployment
3,25 % 3,25
% 3,25
% 3,25
% 2,10
% 1,65
% 1,40
% 1,40
%
insurance
(10) Pension
insurance 9,75
% 9,75
% 9,75
% 9,75
% 9,95
% 9,95
% 9,95
% 9,95
%
(11) Employee’s
share 21,10
% 21,00
% 20,77
% 20,50
% 19,85
% 19,47
% 19,77
% 20,22
%
(12) Health
insurance 7,25
% 7,15
% 6,92
% 6,65
% 6,95
% 6,95
% 7,45
% 7,90
%
(13) Nursing
insurance 0,85
% 0,85
% 0,85
% 0,85
% 0,85
% 0,92
% 0,97
% 0,97
%
(14) Unemployment
3,25 % 3,25
% 3,25
% 3,25
% 2,10
% 1,65
% 1,40
% 1,40
%
insurance
(15) Pension
insurance 9,75
% 9,75
% 9,75
% 9,75
% 9,95
% 9,95
% 9,95
% 9,95
%
(16) Supplementary
[…] […] […] […] […] […] […] […]
pension insurance
(17) Accident
insurance […] […] […] […] […] […] […] […]
Civil servants’ gross wage
(18) Gross
wage 100
% 100
% 100
% 100
% 100
% 100
% 100
% 100
%
(19) Unemployment
3,25 % 3,25
% 3,25
% 3,25
% 2,10
% 1,65
% 1,40
% 1,40
%
insurance (employee)
(20) Pension
insurance
9,75 % 9,75
% 9,75
% 9,75
% 9,95
% 9,95
% 9,95
% 9,95
%
(employee)
(21) Incurred
civil
servant = (18) - (19)
87,00 % 87,00
% 87,00
% 87,00
% 87,95
% 88,40
% 88,65
% 88,65
%
wage in %
- (20)
(22) Civil
servants’
wage
[…] […] […] […] […] […] […] […]
sum
(23) Civil
servants’
gross = (22)/(21) […] […] […] […] […] […] […] […]
wage sum

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L 289/54
EN
Official Journal of the European Union
19.10.2012
2003 2004 2005 2006 2007 2008 2009 2010
Regulatory contribution rate (recalculated based on civil servants’ gross wage)
(24) Employer’s
share =
(6)*(21) 18,36
% 18,27
% 18,07
% 17,84
% 17,46
% 17,20
% 17,27
% 17,14
%
(25) Supplementary
= (16)*(21) […] […] […] […] […] […] […] […]
pension insurance
(26) Accident
insurance =
(17)*(21) […] […] […] […] […] […] […] […]
(27) Regulatory
rate […] […] […] […] […] […] […] […]
Social insurance benchmark
(28) Employer’s
share 21,10
% 21,00
% 20,77
% 20,50
% 19,85
% 19,46
% 19,48
% 19,33
%
(29) Unemployment
3,25 % 3,25
% 3,25
% 3,25
% 2,10
% 1,65
% 1,40
% 1,40
%
insurance (employee)
(30) Pension
insurance
9,75 % 9,75
% 9,75
% 9,75
% 9,95
% 9,95
% 9,95
% 9,95
%
(employee)
(31) Social
insurance
34,10 % 34,00
% 33,77
% 33,50
% 31,90
% 31,06
% 30,83
% 30,68
%
benchmark
Revenue share for non-regulated services
(32) Total
revenue 14
683,21 14
726,82 14
479,35 13
773,79 13
479,96 13
392,81 12
846,17 12
656,75
(33) Non-regulated
[…] […] […] […] […] […] […] […]
revenue
(34) Share
of
non-price
= (33)/(32) […] […] […] […] […] […] […] […]
regulated services
Incompatible aid
(35) Difference
in
= (31) - (27) […] […] […] […] […] […] […] […]
contributions rates
(36) Incompatible
aid =
(23)*(34)
[…] […] […] […] […] […] […] […]
*(35)
(37) Sum
2003
to
2010
[…]
Explanatory notes
Lines (1) to (17): Data on social contribution rates
Those lines present the social contribution rates that have to be compulsorily paid to the social insurances (decomposed
in the employer’s and employee’s share) by private employers. The last two lines show the contribution rates to the
supplementary pension and the accident insurances that are included in Deutsche Post’s regulatory rate.
Lines (18) to (23): Calculation of civil servants’ gross wage
To have a common denominator for the benchmark rates, it is important to note that the private-employee’s gross wage
is generally defined as net wage plus the employee’s share of the social contributions. As civil servants have to finance
30 % to 50 % of their health care expenses but do not contribute to the pension and unemployment insurance, the
incurred civil servant wage equals the private employee’s gross salary (100 %) minus the employee’s share of the social
contribution rate for pension and unemployment insurances. It rests on the assumption of a 50 % contribution to the
health insurance by civil servants themselves.
Line (21) expresses the incurred civil servant wage in percentage of the private employee’s gross wage). To calculate the
civil servant’s gross wage sum, the incurred civil servant wage is inflated by 100/(100 – employee’s share of
unemployment and pension insurance) as shown in line (23).

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/55
Lines (24) to (27): Regulatory contribution rate
The regulatory contribution rate includes the employer’s share of the social contribution rate plus the contribution rates
to the supplementary pension and accident insurances. To have a common base to compare the regulatory contribution
rate to the social insurance benchmark, the regulatory contribution rates are expressed in percentage of the civil servants’
gross wage. Due to the change in the base, the adjusted regulatory contribution rates are lower than the respective
statutory rates.
Lines (28) to (31): Social insurance benchmark
As it is assumed that civil servants cover 50 % of their health expenses out of their own pockets, the social insurance
benchmark includes the total contribution rate for pension and unemployment insurance but only the employee’s share
for health and nursing insurance.
Lines (32) to (34): Calculation of the civil servants’ gross wage sum for the non-price regulated services
The civil servants’ gross wage sum in the non-price regulated services is approximated by taking the revenue shares of the
non-price regulated services because the precise number of civil servants who have worked for the non-price regulated
services was not retrievable from Deutsche Post’s accounting.
Lines (35) to (37): Calculation of incompatible aid
The comparative advantage in terms of the contribution rate is given as the difference between the benchmark
contribution rate and the regulatory contribution rate. The incompatible aid is calculated based on the civil servants’
gross wage sum for the non-price regulated services.
(*) This table is based on the assumption that 100 % of burden 2 has been put by the regulator on the price-regulated services. This
assumption would have to be adapted if Germany were to show during the recovery phase that the Postal regulator has actually placed
a certain percentage of burden 2 on the competitive services.

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Document Outline

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