Judgment_paragraph 266 · Deutsche Telekom AG v European Commission (C-280/08 P)

266In that regard, the General Court held, in particular, in paragraphs 317 to 319 of the judgment under appeal:317 … it must be held that the applicant’s situation is fundamentally different from that of the undertaking referred to in the Deutsche Post decision.318 It follows from … the Deutsche Post decision … that the Commission deemed it appropriate to impose only a symbolic fine on the undertaking referred to in that decision on three grounds: (1) the undertaking concerned had behaved in accordance with the case-law of German courts; (2) there was no Community case-law relating specifically to the cross-border letter mail services concerned; and (3) the undertaking concerned had undertaken to introduce a procedure for the processing of incoming cross-border letter mailings which would avoid practical difficulties and facilitate the detection of future interference with free competition, should it occur.319 In the present case, first, it must be noted that the only judgment of the German courts to which the applicant refers is the judgment of the Oberlandesgericht Düsseldorf, which was delivered on 16 January 2002, thus in the period during which the infringement was characterised in the [decision at issue] as minor … In any event, that judgment was set aside by the judgment of the Bundesgerichtshof of 10 February 2004. Second, it follows from the [decision at issue] … that the Commission applied the same principles as those underlying [Commission Decision 88/518/EEC of 18 July 1988 relating to a proceeding under Article [82] of the EEC Treaty (Case No IV/30.178 Napier Brown – British Sugar) (OJ 1988 L 284, p. 41)]. In its Notice of 22 August 1998 on the application of the competition rules to access agreements in the telecommunications sector – framework, relevant markets and principles [OJ 1998 C 265, p. 2] (paragraphs 117 to 119), the Commission had already announced that it proposed to apply the principles of [Decision 88/518] in the telecommunications sector. … Finally, third, the applicant in the present case has not given any undertaking to avoid any other future infringement.’