Opinion of Mr Advocate General Van Gerven delivered on 16 October 1991

1 Origina] language: Dutch.

2 OJ 1990 L 10, p. 47.

3 Staatsblad, 1988, No 522.

4 Regeling Registratie Koeriersdiensten, Staatscourant, 1989, No 109.

5 For a description of messenger services in die real sense, see inter alia FTTs reply in Case C-66/90, point 50.

6 See Article 2 in conjunction with Article 12(1) of the Posial Law, 1988.

7 See Article 12(2) of the Postal Law, 1988.

8 The requirement to declare rates annually was laid down by the Reveling Registratie Koeriersdiensten (regulation on registration of messenger services) of 12 May 1989, Staatscourant, 1989, No 109.

9 It is true that the declaration of incompatibility, as appears from the operative part of the decision, relates only to the minimum ptice rule and the requirement to register, and not to the quality condition even though, as may be seen from the statement of reasons on which the decision is based (see Recital (14)), that condition also conflicts with Article 90 in conjunction with Article 86. This is apparently something which has been overlooked and which, whilst it has consequences for the obligations resulting for the Netherlands Government from the contested decision, makes no difference to the appraisal of the complaints relating to the statement of reasons and the legality of the decision.

10 See Recital (3) to the contested decision.

11 See Recital (10) to the contested decision.

12 See Recital (11) to the contested decision.

13 Sec Recital (12) to the contested decision.

14 See Recitals (13) and (14) to the contested decision.

15 See Recitals (16), (17) and (18) to the contested decision.

16 I shall return later (sections 28 to 31) to this point, which is linked to the applicability to PTT-Post BV of the three conditions to which messenger services are subjected with regard to letters not exceeding 500 g (see section 3 above).

17 [1988] ECR 3611, in particular at paragraphs 11 and 12. (The judgment was delivered on 30 June 1988.)

18 Cited in the previous footnote.

19 France v Commission [1991] ECR I-1223.

20 See paragraphs 10 to 12 of the judgment in Case 226/87, previously cited, in which the Court rejects the Greek Government's contention that a Commission decision under Article 90(3) is really nothing more than an opinion. See also paragraph 16 of the judgment in Case 202/88, previously cited, setting out die French Government's claim that Article 90(3) enables the Commission only to inform the Member States, in cases where it is unclear how compliance with the Treaty is to be achieved, of the means which must be used in order to ensure such compliance. That argument is rejected by the Court in paragraph 17.

21 See footnote 16 above and the portion of the text to which it relates.

22 Previously cited in footnote 18.

23 That is already clear from the text of Article 189, which provides that, unlike a regulation which has general application and is directly applicable in all Member States, a directive is binding upon each Member State to which it is addressed only as to the result to be achieved. The question whether a directive can have general application überhaupt has even been raised in academic writings. See von der Groeben, H., von Boeckh, H., Thiesing, J. and Ehlerrnann, C.-D.: Kommentar zum EWG-Vertrag, Baden-Baden, 1983, p. 562 at paragraph 39. Moreover the Council and the Commission regularly address directives to a single Member State, namely when there is a specific problem which affects only that Member State. See for example Council Directive 79/174/EEC of 6 February 1979 concerning the flood protection programme in the Hérault Valley, OJ 1979 L 38, p. 18 (addressed solely to the French Republic), Council Directive 81/6/EEC of 1 January 1981 authorizing the Hellenic Republic to communicate and to implement its national plans for the accelerated eradication of brucellosis and tuberculosis in cattle, OJ 1981 L 14, p. 22, and Council Directive 81/1060/EEC of 14 December 1981 derogating in favour of the Kingdom of the Netherlands from Directive 73/403/EEC on the synchronization of general population censuses, OJ 1981 L 385, p. 34.

24 The Court has already confirmed in its judgment in Case 155/73 Sacai [19741 ECR 409, at paragraph 18, that the obligation imposed by Article 90(1), read in conjunction with Article 86, has direct effect.

25 Although the Court is not called upon to decide this point in the case now before it, it seems to me logical that the Commission should also be able, under Article 90(3), to require a Member State to reconcile a rule of national law with a Treaty provision not having direct effect (such as Articles 3(f) and 5 — which were moreover referred to in the decision to which Case 226/87 related). Then the effect of such a measure is not to deprive such a nadonal rule of its binding effect but simply to require the Member State to amend it. A directive addressed to the Member State concerned seems to be the most appropriate instrument for the purpose.

26 See also footnote 27 infra.

27 Sec the judgment in Case 155/79 AM & S v Commission [1982] ECR 1575.

28 However, I should like to observe in this respect that the Commission's decision-making power in respect of Articles 85 and 92 is more extensive than the similar power conferred by Article 90(3), under discussion in this case. Here we are dealing, as I have already said (section 10), with a decision finding an incompatibility between national provisions and Treaty provisions having direct effect. In Articles 92(3) and 85(3) (in contrast to Articles 85(1) and 86) it is a question of decisions in which Treaty provisions not having direct effect are applied and such provisions therefore confer direct effect as regards given national measures of Sute aid or agreements between undertakings.

29 That was expressly confirmed in the judgment in Case C-202/88, already cited in footnote 18, at paragraphs 24 and 55, in which it was emphasized that Arude 90 confers powers of supervision on the Commission in relation only to State measures and that ami-competitive conduct engaged in by undertakings on their own initiative may be called in question only by individual decisions adopted under Anieles 85 and 86.

30 That is self-evident for public undertakings; it applies also to undertakings with special or exclusive rights which are placed by Article 90 on the same footing as public undertakings, because the same privileged status conferred on them by the authorities (but which in theory may also be withdrawn) makes them specially dependent on the authorities. See the judgment in Joined Cases 188 to 190/80 France, Italy and the United Kingdom v Commission [1982] ECR 2545, in particular at paragraph 12.

31 This refers to the telex message of 29 November 1988 to which I shall come back presently.

32 Sec Annex 6 to the Netherlands Government's application in Case C-48/90.

33 See Annex 3 to the Netherlands Government's application in Case C-48/90.

34 In the final version of the postal law the minimum price rule was inserted in the second indent of Article 12(2)(a).

35 See the Commission's reply in Case C-48/90, paragraph 32 at p. 19.

36 Case 311/84 CBEM v CLT and IPB [1985] ECR 3261.

37 See the end of point 32 in its rejoinder in Case C-48/90.

38 See for example the judgments in Case 108/81 Amylum v Council [1982] ECR 3107 at paragraph 19 and in Case 176/82 Nebe v Commission [1983] ECR 2475 at paragraph 21.

39 The corrigenda were published in the Dutch version of the Official Journal of the European Communities of 2 February 1990, p. 46.

40 Cf. the judgment in Caie 131/86 United Kingdom v Council [1988] ECR 905 ai paragraphs 31 io 39.

41 It is not contested that that amendment was made at the request of the Netherlands Government, which wished to have it made clear that not ail the provisions of Articles 2 and 12 of the Postal Law, 1988, were affected by the declaration of incompatibility.

42 In the official terminology of the World Postal Union too the concepts of rapid delivery service and express mail are used without distinction one for another, as PTT-Post BV itself observes in its reply in Case C-66/90.

43 See the end of paragraph 30 of the defence in Case C-66/90.

44 It is true that in footnote 24 to the reply in Case C-66/90 PTT contends that the actual establishment of these rapid servicestook place only on 1 June 1990, that is, after the decision was adopted. It does not deny, however, that the establishment of the service had been advertised as from December 1989.

45 See Recitals (17) and (18) to the decision.

46 Cf. the judgment in Case C-62/86 AKZO v Commission [1991] ECR I-3359 at paragraphs 25 and 26.

47 See the summary of the contested decision in section 4 above. I shall be considering in greater detail in sections 41 to 46 infra whether the discrimination against the private messenger services in fact involves the abuse of a dominant position on the part of PTT-Post BV.

48 Cf. the judgment in Joined Cases 15 and 16/76 France v Commission [1979] ECR 321. It is naturally not out of the question that if the Commission had provided the Netherlands Government, as it should have done, with the opportunity to express its point of view with regard both to the objections relating to the Postal Law, 1988, which the Commission subsequently regarded as justified, and to the observations which the private delivery services had submitted on the Netherlands Government's letter of 16 January 1989 in reply, the Commission would have reached a different conclusion on the question whether PIT-Post BV was subject to the conditions laid down by the Postal Law, 1988. Since I came to the conclusion earlier (section 19) that the infringement of the rights of the defence of the Netherlands Government amounted to an infringement of essential procedural requirements, there is no need for me to consider whether that infringement had specific prejudicial effects for the legal position of the Netherlands Government. In this part of my Opinion which, as I said, is given in the alternative, I shall examine the arguments as to whether PTT-Post BV was actually subject to the conditions laid down by the Postal Law, 1988, on the supposition that the Commission did not infringe essential procedural requirements and thus was not required to pursue a further dialogue with the Netherlands Government. In other words the appraisal, mentioned in the text, of the reasonableness of the Commission's position relates to the information actually at its disposal.

49 The exclusive concession was granted to PTT Nederland NV; for carrying out the public postal service that company set up a special subsidiary company, namely PTT-Post BV.

50 Infringement of this rule is made punishable under Article 17(1) of the Postal Law.

51 See note 24 and accompanying text of PTTs reply in Case C-66/90.

52 The interveners NVIK and NOB have moreover produced a number of documents suggesting that at the time the decision was adopted FIT did not, for its rapid services, comply with the minimum price rule (see in particular Annexes 21 and 24 to their observations). FIT emphatically denied that. I do not think it essential to go into the facts in this connection as it is already sufficiently clear, from the fact that the quality condition was not met by PTTs rapid services, that FIT was not subject to the conditions referred to.

53 Sec Annex 2 to lhe Netherlands Government's application in Case C-48/90.

54 Particularly the nota naar aanleiding van het eindverslag (note on the final report), attached as Annex 2 to PTT-Post BVs application in Case C-66/90.

55 See section 10 above and footnote 24.

56 Such difficulties may possibly relate also to the time-limit imposed by the decision in question for its implementation — as the Netherlands Government complains that the period prescribed by the contested decision is extremely short.

57 In the field of aid measures the Court has already confirmed this on several occasions. See for example the judgments in Case 94/87 Commiision v Germany [1989] ECR 175 at paragraph 9 and in Case 52/84 Commission v Belgium [1986] ECR 89 at paragraph 16.

58 Cf. die firet paragraph of Recital (11) to the contested decision.

59 Cf. Recital (12) to the contested decision.

60 Cf. the first paragraph of Recital (14) to the contested decision.

61 In other words I do not think that the two defects I have mentioned in the statement of reasons affect the validity of the decision as a whole. The minimum rates for destinations within the Community and those to third countries may be regarded and applied separately one from the other. As far as the requirement to register is concerned, it may be seen from the preamble to the decision (see Recitals (11) to (14] that those effects of the Postal Law, 1988, which restria competition are the result of the minimum price rule and the quality condition quite independently of the existence or the registration condition. The registration condition is, in the Commission's view, an aggravating factor.

62 See Recital (10) to the contested decision.

63 See Recital (12) to the contested decision.

64 See Recital (12) to the contested decision.

65 See Recitals (13) and (14) to the contested decision.

66 Previously cited in footnote 18.

67 [1977] ECR 2115.

68 See paragraphs 30 and 31 of the judgment.

69 Sec for example the judgment in Case 229/83 Leclerc v Au Blé Vert [1985] ECR 1 at paragraphs 13 and 14.

70 See for example the judgment in Case 267/86 Van Eycke v ASPA [1988] ECR 4769 at paragraph 16.

71 See paragraph 32 of the judgment in INNO v ATAB.

72 That principle, which was already laid down in general terms in the judgment in Case 155/73 Sacchi [1974] ECR 409, was recently confirmed in the judgments in Case C-202/88 (previously cited in footnote 18) at paragraphs 22 and 34 to 44; and in Case C-260/89 ERT v DEP [1991] ECR I-2925 at paragraphs 24 and 31.

73 Ahmed Saeed Flugreisen v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR803.

74 See the judgment in Case 267/86, previously cited in footnote 69, at paragraph 16.

75 See paragraphs 5 to 8 and 17 to 19 of the judgment.

76 Bodson v Pompes Funèbres des Relions Libérées [1988] ECR 2507.

77 See paragraphs 30, 33 and 34 of the judgment.

78 [1991] ECR 1979.

79 Already cited in footnote 71.

80 Paragraph 37 of the judgment.

81 See his Opinion, delivered on 15 January 1991, at paragraph 45.

82 See paragraphs 46 and 47 of his Opinion.

83 Paragraph 31 of the judgment.

84 Paragraphs 20 to 23.

85 See Recital (10) to the contested decision.

86 See Recitals (3) and (4) to the contested decision.

87 See Recital (11) to the decision.

88 Previously cited in footnote 35.

89 First paragraph of Recital (11) to the contested decision.

90 See the first sentence of paragraph 26 of the judgment.

91 See the second and third sentences of paragraph 26 of that judgment.

92 [1974] ECR 223.

93 [1973] ECR 215.

94 In the Continental Can case an undertaking having a dominant position on a substantial part of the common market had extended that dominant position by acquiring shares which gave it power to control a competing company operating in another part of the Community market.

95 Sec paragraphs 26 and 27 of the judgment.

96 Annex 1 to PTT-Post BVs application in Case 66/90 is interesting in this respect; it consists of a table setting out a number of prices charged by private messenger services. The lowest rate for sending a letter between Amsterdam and Rotterdam appears to be HFL 30.

97 See Recital (12) to the contested decision.

98 Recital (13) to the contested decision.

99 First paragraph of Recital (14).

100 Second paragraph of Recitat (14).

101 See the end of Recital (16) to the contested decision.

102 For further detail see my Opinion delivered on 19 September 1991 in Case C-179/90 Mera Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889 at sections 26 to 28.

103 See the second paragraph of Recital (17) to the contested decision.

104 See the application in Case C-48/90, top of p. 21.

105 Sec for example the Netherlands Government's application in Case C-48/90, bottom of p. 21.