Judgment of the Court of 19 May 1993.
Criminal proceedings against Paul Corbeau.
Reference for a preliminary ruling: Tribunal correctionnel de Liège – Belgium.
Competition – Postal monopoly – Scope.
Case C-320/91. Reports 1993 page I-02533
In Case C-320/91,
The subject matter of a request addressed to the Court, in application of Article 177 of the EEC Treaty , by the Criminal Court of Liège (Belgium) and seeking, in the criminal proceedings pursued before this court against
civil party: Post office,
a preliminary ruling on the interpretation of Articles 86 and 90 of the EEC Treaty,
composed of MM. O Due, President, CN Kakouris, GC Rodríguez Iglesias, M. Zuleeg and JL Murray, Presidents of Chambers, GF Mancini, R. Joliet, FA Schockweiler, JC Moitinho de Almeida, F. Grévisse, M. Díez de Velasco, PJG Kapteyn and DAO Edward, Judges,
Advocate General: MG Tesauro
Registrar: Ms L. Hewlett, Administrator
considering the written observations presented:
– for Mr Paul Corbeau, by Me Luc Misson, lawyer at the Liège Bar,
– for the Régie des Posts, by Me Edouard Marissens, lawyer at the Brussels Bar,
– for the Government of the Kingdom of Spain, by MM. Alberto Navarro Gonzalez, Director General of Community Legal and Institutional Coordination, and Miguel Bravo-Ferrer Delgado, State Counsel in the Legal Service for Community Litigation, acting as Agents,
– for the Government of the United Kingdom, by Mrs S. Cochrane, Treasury Solicitor ‘s Department, acting as Agent,
– for the Irish Government, by Mr Louis J. Dockery, Chief State Solicitor, as Agent,
– for the Commission of the European Communities, by MM. Giuliano Marenco, Legal Adviser, Berend Jan Drijber and Francisco Enrique Gonzalez Diaz, Members of the Legal Service, acting as Agents,
having regard to the Report for the Hearing,
having heard the oral observations of Mr. Paul Corbeau, of the Post Office, of the British Government, represented by Mrs. V. Rose, Barrister, of the Spanish Government, of the Hellenic Government, represented by MM. V. Kontolaimos and P. Athanassoulis, Legal Advisers, acting as Agents, for the Italian Government, represented by MIM Braguglia, avvocato dello Stato, as Agents, for the Irish Government, represented by MM. J. Cooke, SC, and B. Lenihan, Barrister-at-law, acting as Agents, and of the Commission at the hearing of December 2, 1992,
having heard the Advocate General in his submissions at the hearing of February 9, 1993,
make the present
1 By judgment of 13 November 1991, which reached the Court on the following 11 December, the Liège Criminal Court, pursuant to Article 177 of the EEC Treaty, asked four questions for a preliminary ruling on the interpretation of Articles 86 and 90 of the Treaty. , in order to assess the compatibility with these provisions of the Belgian regulations on the postal monopoly.
2 These questions were raised in the context of criminal proceedings brought before that court against Mr Paul Corbeau, a trader in Liège, accused of having infringed Belgian legislation on the postal monopoly.
3 In Belgium, the laws of December 26, 1956 on the postal service (Moniteur of December 30-31, 1956, p. 8619) and of July 6, 1971 establishing the Post Office (Moniteur of August 14, 1971, p. 9510 ) invest the Post Office, a legal person governed by public law, with an exclusive right with regard to the collection, transport and distribution, throughout the Kingdom, of all correspondence, whatever it may be, and provide for criminal penalties for any infringement of this exclusive right.
4 It is apparent from the file in the main proceedings sent to the Court, from the written observations lodged as well as from the debates at the hearing that Mr Corbeau provides a service in the geographical area of the city of Liège and the neighboring areas. consisting in the collection of mail at the sender ‘s home and in the delivery of this mail before noon the next day, provided that the recipients are located within the sector concerned. With regard to mail addressed to recipients residing outside this sector, Mr. Corbeau collects the correspondence at the domicile of the sender and sends it by post.
5 Referred to by the Post Office, the Liège Criminal Court decided, having regard to its doubts as to the compatibility of the Belgian legislation in question with Community law, to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
a) To what extent does a postal monopoly, such as that organized by the Belgian law of 26 December 1956 on the postal monopoly, comply, in the current state of Community law, with the standards of the Treaty of Rome (and in particular with articles 90, 85 and 86) and the secondary law standards in force, applicable in the matter?
(b) To what extent should such a monopoly possibly be reorganized in order to comply with the Community obligations imposed on the Member States in this matter, and in particular with Article 90 (1) and the secondary legislation applicable in matter?
c) Is a company vested with a legal monopoly and enjoying exclusive rights similar to those described in the Belgian law of December 26, 1956, subject to the rules of European competition law (and in particular to Articles 7 and 85 to 90 inclusive) under Article 90 (2) of the EEC Treaty?
d) Does such an undertaking enjoy a dominant position over a substantial part of the common market, within the meaning of Article 86 of the Treaty of Rome, a dominant position which would result either from a legal monopoly or from particular facts of the ‘species?
6 For a fuller account of the regulatory framework and the facts of the main proceedings, the course of the procedure and the written observations submitted to the Court, please refer to the report for the hearing. These elements of the file are reproduced below only to the extent necessary for the reasoning of the Court.
7 Having regard to the factual situation in the main proceedings, the questions referred for a preliminary ruling must be understood in the sense that the national court seeks, in essence, to know whether Article 90 of the Treaty is to be interpreted as meaning that it is ‘opposes that a regulation of a Member State, which confers on an entity, such as the Post Office, the exclusive right to collect, transport and distribute mail, prohibits, on pain of criminal penalties, to an economic operator established in that State to offer certain specific services on that market.
8 In order to answer that question, as it has been reformulated, it should first be noted that an entity, such as the Post Office, to which exclusive rights have been granted with regard to collection, the transport and delivery of mail, must be regarded as an undertaking vested by the Member State concerned with exclusive rights within the meaning of Article 90 (1) of the Treaty.
9 It should then be recalled that it is settled case-law that an undertaking which enjoys a legal monopoly over a substantial part of the common market may be regarded as occupying a dominant position within the meaning of Article 86 of the Treaty (see judgments of 10 December 1991, Merci convenzionali porto di Genova SpA, point 14, C-179/90, Rec. p. I-5889, and of 13 December 1991, RTT, point 17, C-18/88, Rec. p. . I-5941).
10 However, Article 86 relates only to anti-competitive behavior which has been adopted by undertakings on their own initiative and not to State measures (see RTT, cited above, paragraph 26).
11 The Court has had the opportunity to clarify in this regard that if the mere fact, for a Member State, of creating a dominant position by granting exclusive rights is not as such incompatible with Article 86 , the fact remains that the Treaty requires Member States not to take or maintain in force measures likely to eliminate the useful effect of that provision (see judgment of 18 June 1991, ERT, paragraph 35, C -260/89, Rec. P. I-2925).
12 This is how Article 90 (1) provides that the Member States, as regards undertakings to which they grant special or exclusive rights, shall not enact or maintain any measure contrary in particular to the rules of the Treaty in competition.
13 This provision must be read in conjunction with that of paragraph 2 of the same article, which provides that undertakings responsible for the management of services of general economic interest are subject to the competition rules to the extent that the application of these rules does not apply. not failure to fulfill in law or in fact the particular mission assigned to them.
14 The latter provision thus allows the Member States to confer on undertakings, which they entrust with the management of services of general economic interest, exclusive rights which may constitute an obstacle to the application of the rules of the Treaty on competition, in the extent to which restrictions on competition, or even the exclusion of all competition, on the part of other economic operators are necessary to ensure the accomplishment of the particular mission which has been assigned to the undertakings holding exclusive rights.
15 As regards the services at issue in the main proceedings, it can not be disputed that the Post Office is responsible for a service of general economic interest consisting of the obligation to ensure collection, transport. and the distribution of mail, for the benefit of all users, throughout the territory of the Member State concerned, at uniform rates and under similar conditions of quality, regardless of the particular circumstances and the degree of economic profitability of the company. each individual transaction.
16 Consequently, it is a question of examining to what extent a restriction on competition, or even the exclusion of all competition, on the part of other economic operators, is necessary to enable the holder of the exclusive right to fulfill his mission of general interest, and in particular to benefit from economically acceptable conditions.
17 For the purpose of this examination, it is necessary to start from the premiss that the obligation, for the holder of this mission, to provide his services in conditions of economic equilibrium presupposes the possibility of compensation between the sectors. ‘profitable activities and less profitable sectors and therefore justifies a limitation of competition from private entrepreneurs,
18 Indeed, authorizing private entrepreneurs to compete with the holder of exclusive rights in the sectors of their choice corresponding to these rights would enable them to concentrate on economically profitable activities and to offer more advantageous prices there than those practiced by the owners of exclusive rights, since, unlike the latter, they are not economically required to offset losses made in unprofitable sectors against profits made in more profitable sectors.
19 The exclusion of competition is not, however, justified when specific services are involved, which cannot be separated from the service of general interest, which meet the particular needs of economic operators and which require certain additional services than the postal service. traditional does not offer, such as door-to-door collection, greater speed or reliability in distribution or even the possibility of modifying the destination during transport, and to the extent that these services, by their nature and the the conditions under which they are offered, such as the geographical sector in which they operate, do not call into question the economic equilibrium of the service of general economic interest assumed by the holder of the exclusive right.
20 It is for the referring court to examine whether the departments which are at issue in the dispute before it meet those criteria.
21 The answer to the questions put by the Liège correctional court must therefore be that Article 90 of the EEC Treaty precludes legislation from a Member State which confers on an entity such as the Régie des Posts the exclusive right to collect, transport and distribute mail prohibited, under penalty of criminal penalties, for an economic operator established in that State to offer certain specific services, dissociable from the service of general interest, which meet needs particulars of economic operators and who require certain additional services which the traditional postal service does not offer, insofar as these services do not jeopardize the economic balance of the service of general economic interest assumed by the holder of the exclusive right.It is for the referring court to examine whether the departments which are at issue in the dispute referred to it meet those criteria.
22 The costs incurred by the Spanish, United Kingdom and Irish Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since the proceedings are, as regards the parties to the main proceedings, an incident raised before the national court, it is for that court to rule on costs.
For these reasons,
ruling on the questions submitted to it by the Liège correctional court, by judgment of 13 November 1991, says for right:
Article 90 of the EEC Treaty precludes legislation from a Member State conferring on an entity such as the Post Office the exclusive right to collect, transport and distribute prohibited mail, on pain of criminal sanctions, to an economic operator established in that State to offer certain specific services, dissociable from the service of general interest, which meet the particular needs of economic operators and which require certain additional services that the traditional postal service does not offer , insofar as these services do not call into question the economic equilibrium of the service of general economic interest assumed by the holder of the exclusive right. It is for the referring court to