Opinion of Mr Advocate General
Mr President,
Members of the Court,
1. The Netherlands Government on the one hand and Koninklijke PTT Nederland NV and PTT-Post BV (hereinafter referred to together as PTT or PTT-Post BV) on the other are asking the Court to declare void the Commission decision of 20 December 1989 concerning the provision in the Netherlands of express delivery services (hereinafter referred to as the contested decision). In that decision, which was addressed to the Netherlands, the provisions of Articles 2 and 12 of the Netherlands Law of 26 October 1988 amending the legislation on the operation of the postal service (hereinafter referred to as the Postal Law, 1988) together with those of the implementing Decree of 19 December 1988, which reserves for PTT Post BV the express collection, transport and distribution of postal items weighing up to 500 g, at a price not exceeding HFL 11.90 for EEC destinations and HFL 17.50 for non-EEC destinations, and the obligation to register all tariffs beforehand, imposed by the Decree of 12 May 1989, are declared incompatible with Article 90(1) of the EEC Treaty, read in conjunction with Article 86 of that Treaty (see Article 1 of the decision).
A — Background
1. The provision of express delivery services in the Netherlands
2. Before the entry into force of the Postal Law, 1988, the then State undertaking, PTT, enjoyed a statutory monopoly under the Postal Law, 1954, for the transport of postal items up to and including 500 g. The PTT services traditionally carried out this transport (collection, sorting and transport, distribution) in a standardized manner. At the end of the 1960s, however, it appeared that there was a demand for transport services of greater added value, more particularly for more rapid and more individualized transport. A growing number of private messenger services set to work to satisfy this demand; the PTT, for their part, did not seem ready to perform these services, or capable of doing so, as is common ground between the parties. The demand which the private messenger services set out to satisfy concerned mainly the transport of important or urgent documents, or both. In so far as the items were less than 500 g in weight, these undertakings were, according to the literal wording of the Postal Law, 1954, acting in breach of the postal monopoly of the State undertaking, the PTT. However, — and this too is common ground — few or no steps were taken against these messenger services by either the Netherlands authorities or PTT themselves, although there were sporadic prosecutions of private urban postal services. The parties give conflicting explanations for these proceedings: the Netherlands Government states that they were part of a policy aimed at permitting, under the former law, only messenger services in the true sense of the word, that is, services consisting in transporting an item on an entirely individual basis, directly from the sender to the addressee, not passing through a sorting centre and thus not being transported together with other items. On the other hand the Commission explains the steps taken against the private urban postal services on the ground that they performed a service which was no better, or hardly, better than the basic postal services. However that may be, it is clear that the demand for rapid, individualized transport services for postal items increased considerably, that the private messenger services were able to satisfy that demand and the authorities never imposed restrictive conditions on their activities. They developed to a remarkable extent.
3. The Postal Law, 1988, however, reshuffled the cards. It expressly confirms the transport monopoly for postal items not exceeding 500 g from and to the Netherlands (including the Netherlands Antilles and Aruba): that service may be performed only by the holder of the exclusive franchise granted by the State, namely PTT-Post BV. Any infringement of this franchise is made a punishable offence by Article 17 of the new postal law. However, there is one exception to this basic monopoly: letters not exceeding 500 g may be collected, transported and delivered by persons other than the holder of the franchise if three cumulative conditions are met: (i) they must provide, for letters transported within the Netherlands or from the Netherlands abroad or from abroad to the Netherlands, a service significantly better than that offered by the franchise holder to anyone on national territory by normal express transport (that is, the express mail service), as regards both speed of delivery, a guarantee thereof and the possibility of keeping track of the communication during transport (a condition which I shall subsequently refer to as the quality condition); (ii) they must provide that service at a rate which must not be less than a minimum laid down by the authorities, namely HFL 11.90 for transport within the Netherlands and to other Member States of the Community and HFL 17.50 for international transport to countries outside the Community (hereinafter referred to as the minimum price rule); and (iii) they must have registered in advance and make an annual declaration of their rates and conditions of delivery (hereinafter referred to as the registration condition). In the contested decision the Commission assumed (and I shall deal later with the question whether that assumption was justified) that these three cumulative conditions did not apply to PTT-Post BV in the event of that undertaking also starting to provide messenger services — which it has actually been doing since 1 June 1990.
2. The contested decision
4. As I have said, the conditions I have just outlined for the provision of messenger services in the Netherlands were declared, by the contested decision, to be incompatible with Article 90 of the EEC Treaty, read in conjunction with Article 86. The decision is contested in a number of respects and an examination of the pleas in law relied upon by the applicants will allow me to go in greater detail into the relevant parts of those pleas. Here I shall simply give a general survey by way of introduction to my examination.
B — Admissibility of the action in Case C-66/90
5. It is common ground between the parties that the contested decision, although not addressed to PTT-Post BV, is of direct and individual concern to it. However, the Commission calls in question the admissibility of its action because PTT-Post BV states itself that the legislation which is declared in the contested decision to be incompatible with the Treaty is of no advantage to it, so that it has no legal interest in bringing proceedings.
C — Examination of the procedural grounds relied on for declaring the decision void
6. The pleas in law put forward by the applicants are in the main identical, even though not always identically drafted. For the purposes of my examination I have grouped them under two headings. In this part of my Opinion I shall consider the procedural grounds for declaring the decision void, relating to the Commission's power to take the contested decision (section C-l infra), to the infringement of the rights of the defence (section C-2 infra) and to the statement of the reasons on which the contested decision is based (section C-3 infra). In the following part (Part D), I shall consider whether the contested decision is justified.
1. Misuse of powers conferred by Article 90(3)
7. The applicants claim that the Commission, in adopting the contested decision, is misusing the power conferred on it by Article 90(3) of the Treaty. They take the view in fact that where the Commission wishes to take action with regard to alleged infringements of the Treaty by the Member States, it must follow the procedure laid down in Article 169 of the EEC Treaty except where the Treaty makes an express exception, as, for example, in Articles 93(2), 100A(4) and 225. In other words, by adopting the contested decision, the Commission applied the power to adopt decisions for a purpose other than that expressly conferred upon it by Article 90(3), in order — to quote the Netherlands Government — to effect punitive supervision over a Member State (in this case the Netherlands). The fact that the contested decision concerns legislation in the formal sense made it all the more important, according to the applicants, to use the normal procedure provided for by Article 169. A decision adopted on the basis of Article 90(3) in fact takes immediate effect in law and an action directed against such a decision has no suspensory effect; on the other hand the procedure under Article 169 does not have such drastic effects: the legislation in question continues to have legal effect both during the pre-litigation stage and during proceedings before the Court.
8. I do not find that argument convincing. To begin with the second part of it, which relates to the immediate legal effect and the drastic consequences of a decision based on Article 90(3), the comparison with a procedure under Article 169 needs to be toned down. In such a case the latter procedure may result in a judgment of the Court which cannot be contested because there is no appeal to a higher court (see Article 171). Action by the Commission under Article 90(3), on the other hand, has quite different legal consequences: it leads to a decision, that is, a binding instrument, but one which may be challenged. When the Member State to which the decision is addressed thinks that it is incompatible with procedural or substantive rules of Community law it may in fact bring an action before the Court of Justice under Article 173 of the EEC Treaty for a declaration that it is void and may, if it wishes, apply for the suspension of the operation of the measure in question under Article 185 of the Treaty.
9. What are we to make of the Netherlands Government's main argument, namely that by using decisions based on Article 90(3) to declare provisions of national law incompatible with the Treaty, that is, to quote the Netherlands Government, by making a repressive use of its power to adopt such decisions, the Commission is misusing its power? I do not think the Netherlands Government is right and I find strong support for my view in Case 226/87, already cited. That case concerned proceedings under Article 169 by the Commission for a declaration that the Greek Government had failed to comply with a Commission decision under Article 90(3) declaring a Greek law incompatible with Articles 52 and 54, the second paragraph of Article 5 and Article (3)(f) of the Treaty. The Greek Government challenged the legality of that decision before the Court, but the Court declined to consider that defence because the Greek Government had not instituted, within the period prescribed in Article 173, proceedings for a declaration that that decision was void. It is true that Greece had argued :
10. The Netherlands Government nevertheless contends that its statement is confirmed by the judgment in Case C-202/88. In that case the French Government had challenged the Commission's power to declare under Article 90(3) by means of a directive that national statutory provisions were incompatible with the Treaty; in the French Government's view such a finding could be made only on the basis of the procedure under Article 169. The Court rejected that argument on the following grounds:
11. In any case, the objections to the use of a decision do not in my opinion in any case apply when — as is the case with the decision now before the Court — the Commission finds that a provision of national law is incompatible with a provision of the Treaty having direct effect such as Article 90(1), read in conjunction with Article 86, that is, a provision of the Treaty which confers on individuals rights on which they may rely directly as against the Member State concerned without the need for any action by a Community institution or national authority. In such a case a Commission decision is purely declaratory and in no way creates rights or duties, that is, it specifies an already existing obligation and does not impose a new one. I do not see how this power, in view of the wording of Article 90(3), can be denied to the Commission. Nor can it be maintained that such a decision is of a repressive nature since the incompatibility of the provisions of national law does not result from the decision but directly from the Treaty provision in question. It makes no difference whether the national rule in question is of a statutory nature since the precedence of provisions of Community law having direct effect applies equally with regard to national rules of a statutory nature.
12. The Netherlands Government sees further support for its restrictive interpretation of the power to adopt decisions, set out in Article 90(3), in the fact that, in contrast to Article 93(2) (which empowers the Commission to bring direct before the Court of Justice a Member State which does not comply with a decision relating to State aid) Article 90(3) does not contain any derogation from Article 169 of the Treaty.
13. The applicants' final argument is to the effect that the Commission cannot claim any power to adopt decisions under Article 90(3) because that provision offers no procedural guarantees on behalf of the Member State concerned. The Commission's reply is that the absence of written procedural guarantees cannot in any event be decisive for the question whether, an article of the Treaty may form the legal' basis for a measure of a Community institution (in other words- for that institution's powers).
2. Infringement of the rights of the defence
14. Both applicants complain that the Commission infringed the rights of the defence during the procedure which preceded the adoption of the contested decision. It is true that their arguments differ to some extent: the Netherlands Government, to which the decision was addressed, complains that it did not have a sufficient hearing during the pre-litigation stage as regards the objections raised by the Commission with regard to the new rules relating to the messenger services. PTT-Post BV, to which the decision was not addressed but to which it is of direct and individual concern (see section 5 above) claims that it had a right of its own to be heard by the Commission as to those objections.
15. The Netherlands Government thinks that its procedural rights have been ignored because the Commission has not given it a sufficient hearing. More specifically, it complains that the Commission, after a letter sent by the government on 16 January 1989, adopted the contested decision without any further contact; it contends that there has never been a genuine exchange of views (oral or written) between it and the Commission. The government also thinks it objectionable that after receiving its letter of 16 January 1989 the Commission made further contacts with a number of delivery service organizations without informing it of the results of these talks.
16. To examine this submission it is necessary to consider carefully the course of the procedure prior to the adoption of the contested decision. According to the documents before the Court matters proceeded as follows.
17. I think, having regard to the foregoing and more particularly to the content of the Commission's telex message and to the subsequent contacts between the Commission and the messenger service organizations, that this submission by the Netherlands Government is justified.
18. The discussions which took place between the Commission and the messenger service organizations after the Netherlands Government had sent its letter of 16 January 1989 also give food for thought. The Commission itself admits that those discussions related inter alia to the effects of the new postal law on the provision of delivery services in the Netherlands and that the messenger service organizations were given the opportunity in that connection to make their comments on the Netherlands Government's letter. In those circumstances it cannot be seriously denied that the audi alteram partem principle required the Commission either to involve the Netherlands Government in those discussions or at least to acquaint the government with the conclusions which it had drawn from those discussions with regard to the compatibility of the new postal law with the Treaty. Between the date of the Netherlands Government's reaction to the telex message of 29 November 1988 (16 January 1989) and the date of the contested decision (20 December 1989), the Commission had ample time for such consultations. The fact that, according to the Commission's statement, such consultations could relate only to the documents available to the public makes no difference from that point of view.
19. The foregoing considerations lead me to conclude (i) that the rights of the Netherlands Government have been infringed in two respects: by the absence of a notification in which the Commission's objections were set out with a sufficiency of legal reasons and by the failure to observe the audi alteram partem principle; and (ii) that that infringement deprived the Netherlands Government of the opportunity to define and defend its point of view with knowledge of the facts. I think therefore that this amounts to an infringement of an essential procedural requirement so that for that reason the Commission decision must be declared void. However, in case the Court should take the view that the Commission has in fact respected the Netherlands Government's rights of defence I must now consider the other submissions set out by the applicants.
3. The comphints relating to the statement of the reasons on which the contested decision is based
20. The complaints set out in the context of this submission by the Netherlands Government and PTT-Post BV may be grouped under four heads:
(a) The terminology used in the decision and the corrigenda
21. According to the Netherlands Government and PTT-Post BV the statement of the reasons on which the contested decision is based is incomprehensible because it uses incorrectly or ambiguously, or both, the essential concepts of basic postal service, express post (or express mail service) and express messenger service. They think that appears mainly but not exclusively from the fact that the Commission thought it necessary to publish a number of corrigenda to the contested decision some time after it was adopted. These corrigenda, which were published only in the Dutch version of the Official Journal of the European Communities, were not adopted in the form of a decision (which moreover was not the Commission's intention). Accordingly if these corrigenda involve amendments of substance to the contested decision (as the Netherlands Government and PTT-Post BV contend), they cannot be taken into account in order to decide whether there is a sufficient statement of the reasons on which the decision was based. The Netherlands Government even expressly requested cancellation of these corrigenda because in its opinion they amounted to a new Commission decision which had been adopted without regard to the essential procedural requirements.
22. Let me say straight away that I do not find the applicants' arguments about the impact of the corrigenda on the content of the contested decision altogether convincing. I think that in this case a distinction must be made between three types of corrigenda. A first type of corrigendum consists in obvious clarifications or corrections of mistakes of language — as is the case with the two last corrigenda, namely the replacement of the expression De artikelen 2 en 12 (Articles 2 and 12) by De bepalingen van de artikelen 2 en 12 (The provisions of Articles 2 and 12) and the correction of opgelegt to opgelegd — which naturally do not disclose any defect in the statement of the reasons on which the decision was based.
23. A second type of corrigendum is designed to bring a greater uniformity into the terminology used in the decision (in particular the replacement of the expression expressepost (express delivery) by koeriersdiensten or koeriersdienst (messenger service or services) in Recitals (11) and (17] or to correct the terminology used (see Recital (3) in which the expression expressepost is replaced by the expression koeriersdienst (messenger service), or in Recital (9) where the expression de verzending van expressebrieven (express delivery of letters) is replaced by de versnelde verzending van brieven door koeriersdiensten (express delivery of letters by messenger services)).
24. There is still a third type of corrigendum, namely the correction to the second line of Recital (4), in which speodbestelling is replaced by koeriersdienst. It is clear that the original text of the decision contained an error of terminology which this time is not excused by the confusion between the expressions expressepost and koeriersdienst. On the other hand it seems to me that it cannot seriously be stated that that terminological error makes the statement of reasons incomprehensible. The mistake occurs in fact in the first sentence of Recital (4) to the decision, which develops further (cf. the use of the word eveneens (also] the distinction made immediately before in Recital (3) between the basic postal service and the messenger service. Although the Commission's error of terminology is a matter for regret, it does not — in view of the context — represent an obstacle to comprehension of the statement of reasons on this point.
25. The applicants also state that the statement of the reasons on which the decision is based is incomprehensible as a result of a number of misconceptions which the Commission has not corrected.
(b) Lack of understanding of the provisions and services concerned?
26. PTT-Post BV in particular criticized the contested decision on this point. Its argument does not however seem very convincing. Thus it complains that in the contested decision the Commission described PTT-Post BV (instead of the holding company, Koninklijke PTT Nederland NV) as the holder of the exclusive franchise for transporting letters and that the Commission wrongly stated that the maximum rate for PTT's compulsory transport services amounted to HFL 4.50 instead of HFL 14, which is the maximum rate for express delivery of a letter to another Member State of the Community. I do not think that such mistakes of detail make the statement of reasons in the contested decision incorrect or incomprehensible.
27. More fundamentally, PTT complain that the statement of reasons on which the decision is based is incorrect because (i) the Commission misunderstood the ratio legis of the minimum price rule for messenger services and (ii) in its analysis it did not take account of the fact that the messenger service undertakings are developing more and more services in direct competition with the services offered by PTT in the framework of their legal duty to transport.
(c) Is the decision devoid of any factual basis?
28. This part of the third submission concerns the applicants' contention that the contested decision lacks any factual basis because it wrongly assumes that the conditions laid down by the Postal Law, 1988, for the provision of messenger services from or to Netherlands territory (see section 3 above) are not applicable to PTT-Post BV when it offers services of that kind.
29. Let me point out that it is not the (objectively) correct interpretation of the Netherlands legislation which is at issue here — a matter which only a national court is in a position to decide. It is rather for the Court of Justice to decide whether the Commission, at the time at which it adopted the contested decision, could reasonably suppose that the three conditions laid down by the law did not apply to PTT. Regard being had to the wording of the Postal Law, 1988, and the actual situation at the time the contested decision was adopted, it seems to me that the Commission's attitude was reasonable.
30. In addition the Commission's view receives further support in the drafting of the quality condition set out in indent 1 of Article 12(2)(a) of the postal law, which requires messenger service undertakings to provide a service of a quality significantly better than that of the normal express transport offered by the franchise holder to all persons within the country. Even accepting that, contrary to what I have stated in the foregoing section, that condition is equally applicable to the messenger services offered, by PTT-Post BV, such an interpretation would raise practically insoluble problems of application: for any rapid transport service performed by PTT (and at the time the decision was adopted there were at least three such, advertised or even in operation, namely EMS Express, EMS Time-Net and EMS Courier), it would then be necessary to establish whether that service was to be regarded as an express mail service (coming under the exclusive franchise and therefore not subject to the condition) or as a messenger service in the true sense of the word. I shall give one example by way of illustration: it is not denied that until June 1990 PTT was offering an -express mail service with home collection. In view of that additional facility it is logical to regard such a service as equivalent to a messenger service. But it then appears that that service does not comply with the quality condition or in particular the requirement that it must be possible to keep track of the communication during transit, because that express mail service with home collection was not effected by means of a so-called tracking and tracing system. Such a system was brought into operation, as PTT themselves state, only on 1 June 1990, so that PTFs other rapid services at the time the decision was adopted (including the old style EMS) did not comply with the quality condition either. It was therefore logical for the Commission to conclude from that situation in December 1989 that PTT-Post BVs rapid services were simply not subject to the quality condition.
31. The only evidence supporting the applicants' statement is a nota van toelichting (explanatory note) to the Besluit Minimumtarieven Koeriersdiensten and a passage from the preparatory documents for the law. But those documents are far from conclusive. Thus the representative of the interveners NOB and NVLK remarked at the hearing that during the procedure in parliament the Minister for Transport, Water Control and Construction had proposed the insertion in Article 13 of the law a system of individual exemptions from the exclusive franchise for private messenger services. Only at the end of the parliamentary procedure was that system changed to a generic exemption inserted in Article 12(2) — in other words the history of the drafting of Article 12(2) certainly does not suggest that these exemptions were drafted also for any express messenger services which PTT themselves might run. Moreover, and above all, the Commission might very well work on the principle that the preparatory documents can in no way justify an interpretation contra legem. Moreover it is significant that the Netherlands Government, as it indicates in its reply in Case C-48/90, is to lodge with the Netherlands States General, because of questions which have arisen, a draft law amending the postal law for the avoidance of further doubt with regard to the obligation of PTT in the matter.
(d) The operative part of the decision
32. The Netherlands Government and PTT-Post BV have claimed first that the operative part of the decision is too vague because it contains no indications as to what measures the Netherlands Government should take to bring the alleged infringement of the Treaty to an end.
33. The applicants further claim that the operative part of the contested decision is too wide because, in two respects, it is not supported by the statement of reasons. They complain in the first place that the operative part is not directed only against the minimum price (HFL 11.90) for destinations within the Community but also against the minimum price (HFL 17.50) for destinations outside the Community.
34. According to the applicants, the operative part of the decision is too broad in yet another respect, namely in so far as, without any appropriate statement of reasons, it declares incompatible with the Treaty the obligation for messenger services to register their rates in advance.
D — Examination of the submissions on the substance
1. Absence of conduct by the undertaking
35. According to the applicants, the Commission makes an incorrect application in the contested decision of the combined provisions of Articles 90 and 86. In fact they deny that those two provisions can be applied to a restriction of competition not resulting from the conduct of an undertaking but simply from a measure of the authorities.
36. Before discussing the relevant case-law of the Court on this subject I should like first of all to define the question before us. The parties do not deny that the provisions of Article 90 are addressed to the Member States (even though they relate to measures adopted by the Member States with regard to undertakings). Nor is it denied that the Commission is able to take action under Article 90 against State measures which distort competition on the Community market apart from any conduct by an undertaking. That will be the case when State measures relating to public undertakings or undertakings enjoying special or exclusive rights infringe the rules of the Treaty with regard to the free movement of persons, goods or capital. For example, in the recent judgment in Case C-202/88, the Court ruled that under Article 90(3) the Commission was empowered to require the Member States (in that case by means of a directive) to withdraw special or exclusive rights granted by them to undertakings for the marketing or maintenance of telecommunications terminal equipment in view of the fact that such rights constituted an infringement of Article 30 of the Treaty. In the same way the Commission would have been entitled, in the contested decision, to declare the registration condition laid down by the postal law incompatible with Article 90 in conjunction with Article 59, regard being had to the serious restrictions which that condition imposes on messenger service undertakings from other Member States which desire to offer their services in the Netherlands. However, the Commission chose to test the postal law against, and declare it incompatible with, a provision of the Treaty (Article 86) which, according to its wording and purport, concerns the conduct of undertakings and not the legal or administrative measures adopted by Member States. Did Article 90 empower it so to do? That is the sole extent of the question which now needs to be considered.
37. It has long been accepted in the Court's case-law that Articles 85 and 86 may also be relevant to legal or administrative provisions adopted by the Member States. More particularly it was decided in the judgment in Case 13/77 INNO v ATAB that, while it is true that the competition rules of Article 85 et seq. are directed at undertakings, none the less it is also true that the Treaty imposes a duty on Member States not to adopt or maintain in force any measure which might render that provision ineffective. That obligation was linked by the Court to the one in the second paragraph of Article 5 of the Treaty which requires Member States to abstain from any measure which could jeopardize the attainment of the objective set out in Article 3(f) of the Treaty, namely the institution of a system ensuring that competition in the common market is not distorted. For that reason Member States are required not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Article 90 of the Treaty constitutes, specifically with regard to public undertakings and undertakings to which Member States grant special or exclusive rights, a special application of that rule. It was on that basis that the Court decided that, contrary to the Netherlands Government's contention, a monopoly granted by a Member State to an undertaking (or an extension of such a monopoly) may be incompatible with Article 90 of the Treaty more particularly where the detailed arrangements for the organization and operation of that monopoly infringe the provisions of the Treaty — including the rules of competition.
38. The Court's case-law has gradually defined with greater clarity the categories of State measures capable of depriving of their effectiveness the rules of competition applicable to undertakings. It seems to me that a distinction may be drawn between four categories of intervention by the authorities.
39. It appears, I think, from that case-law that the Court's view is that the provisions of Article 90, in conjunction with those of Articles 85 and 86, cover State measures (relating to public undertakings and undertakings to which Member States grant special or exclusive rights) which encourage, require or make inevitable conduct by undertakings which, whatever its nature, is prohibited by Articles 85 and 86, and measures which delegate to undertakings a duty of regulating competition such as ought to be performed by the authorities. The consideration that such State measures, in combination with one form or another of conduct by an undertaking, have the same effects with regard to the strutture of competition on the Community market as conduct by an undertaking which is unconnected with action by the public authorities. It appears further from that case-law that conduct by an undertaking which is necessary as a link factor to make Article 90(1) applicable in conjunction with Article 85 or 86 need not necessarily precede action by the public authorities but may follow it, result therefrom or even be the inevitable consequence thereof. Nor is it necessary for the undertaking itself to have committed an intentional infringement of the rules of competition (in other words, it is enough for it to be placed in a situation in which it cannot act otherwise than by restricting competition). Thus in his Opinion in Case C-41/90 Höfner and Elser Mr Advocate General Jacobs indicated that the Bundesanstalt^ conduct in itself could not be regarded as abusive: there was nothing to suggest that it had not endeavoured to the best of its ability to satisfy the demand for assistance in the recruitment of executives; by voluntarily relaxing its monopoly it had even sought to open the market to other operators as far as possible. However, as the Advocate General stressed, the combined effect of the monopoly set up by the authorities and the Bundesanstalt's failure to satisfy demand was that the consumer could not receive the service which would have been available on a competitive market. In such a case there is, in the view of the Advocate General, an infringement of Article 90 in conjunction with Article 86. In its judgment the Court approved that view — which gives a very wide interpretation of the effectiveness of Article 86.
40. Having regard to the foregoing considerations, my view is that the applicants' argument must fail in so far as it aims to exclude from the application of Article 90 conduct by undertakings which, like PTT-Post BV's activities, is for the undertaking concerned the inevitable consequence of State measures and which (in combination with those measures) has exactly the same consequences for competition on the Community market as the conduct of an undertaking which is prohibited by Articles 85 and 86 irrespective of any action by the authorities. As a result of that conclusion I must now consider whether the Commission was right in the contested decision to conclude that the Postal Law, 1988, in conjunction with the conduct of PTT-Post BV which is its inevitable consequence — conduct which is not denied since PTT-Post BV did indeed strive, and is still striving, to develop a complete express messenger service within the framework of the postal law — has for competition on the market for messenger services the same consequences as the abuse of a dominant position prohibited by Article 86. As I have previously stated (section 31), I shall base this examination on the supposition that PTT-Post BV is not subject to the conditions laid down by the Postal Law, 1988, as regards the provision of messenger services.
2. No abuse of a dominant position
(a) Extension of a dominant position
41. It cannot be seriously denied that the granting of the exclusive franchise gave PTT and PTT-Post BV a dominant position on the market for basic postal services in the Netherlands. The Commission also seems to me to be right when it regards the market for basic postal services and that for messenger services as two separate (even though associated) markets. Messenger services have a greater added value and satisfy different needs from the basic postal services; those two types of service are therefore not interchangeable.
42. This reasoning does not convince me, not, let me admit right away, because of the legal basis, which I acknowledge is correct. The legal basis is that the Commission states, by reference to the judgment in Case 311/84 CBEM v CUT and IPB (which I shall hereinafter refer to as the Telemarketing judgment), that abuse of a dominant position is committed where an undertaking holding a dominant position on a particular market reserves to itself or to an undertaking belonging to the same group an ancillary activity which might be carried out by another undertaking as part of its activities on a neighbouring but separate market, with the possibility of eliminating all competition from such an undertaking. That is, according to the Commission, exactly the effect of the Postal Law.
43. If the recitals to the contested decision on the existence of an abuse do not convince me, it is not because of the legal arguments but of the appreciation of the underlying facts. That appreciation starts out with the idea that the market for messenger services at a rate less than HFL 11.90 for the despatch of letters not exceeding 500 g forms an important part of the market for messenger services. The abuse is alleged to consist of extending the postal monopoly on the market for basic postal services to that important part of the market for messenger services so that the post acquires a dominant position on that market too. I think that that appreciation of the facts is inappropriate. The market for messenger services consists, according to the contested decision, of three subsidiary markets: the market for items above 500 g, the market for items of a maximum of 500 g at HFL 11.90 and the market for items of a maximum of 500 g at less than HFL 11.90. The first subsidiary market is not controlled, the second is controlled but is open for competition and only the third (which differs from the second only as a result of the minimum rate fixed) is closed to competition. The abuse alleged by the Commission concerns only the third market. The contested decision states that the postal law, by reserving the last named (subsidiary) market for PTT-Post BV, has extended the dominant position of PTT-Post BV on the market for basic services to a whole section of the market for messenger services. However, no figures are given in support of that statement. The Netherlands Government rightly indicates that the minimum rate of HFL 11.90 is fixed at a very low level. Although there is serious evidence that it is possible to provide messenger services at a price below that minimum rate (for example by quantity discounts), it is hard to deny that such services — at least during the period relevant for the proceedings — constitute only a very small part of the market; and there are no indications that there is likely to be a change in the near future. Nor can it, in view of the modest level of the minimum rate, reasonably be assumed that the subsidiary market reserved for PTT-Post BV will supply it with such income as to enable it to adopt a stance independent of its competitors on the other subsidiary markets.
(b) Imposition of unfair prices and conditions; restriction of supply
44. Three other forms of abuse identified in the contested decision under the above heading may be considered together. According to the Commission the discriminatory imposition on the private messenger undertakings of the minimum rate means that (i) undertakings which previously chose to make use of the private undertakings (thinking that the postal services did not cater as adequately for their needs as regards either price or quality) are compelled, since the Postal Law, 1988, to make use of Pi'l'-Post BVs messenger services for their consignments up to 500 g in the category of prices not exceeding HFL 11.90 on the terms laid down by PTT-Post BV, whether or not they correspond to their needs. That discrimination also means (ii) that the number of suppliers of services in that price category is limited to one and that the quality of the services offered in that category is reduced since at the time of the decision PTT-Post BV was not yet offering in its EMS service any express messenger service in the full sense of the word. If customers wish to enjoy a higher quality they must be ready to pay the minimum rate instead of the lower rate previously charged. The Postal Law, 1988, also (iii) prevents post office competitors which provide messenger services for consignments exceeding 500 g from offering a full range of messenger services (namely, I gather, in the three sections of the market: not exceeding 500 g for less than HFL 11.90, not exceeding 500 g above HFL 11.90 and exceeding 500 g) at real prices. Unlike the post office they cannot charge their costs for dealing with letters exceeding 500 g (that is, the uncontrolled portion of the market) against... those services not covered by the monopoly.
45. The effect on competition described here by the contested decision seems at first sight to be analogous to the effect of the German legislation which the Court in its judgment in Hafner and Eher (sections 38 and 39 above) regarded as an abuse within the meaning of Article 86. The postal law too lays down a monopoly on part of the market for messenger services and makes infringements of the monopoly punishable, with the result that users of the messenger services are bound either to have recourse to an undertaking which, as regards quality, meets their needs less well or (if they wish for better quality) to pay a price higher than that which would result from the normal operation of supply and demand. The difference from the situation in the Höfner and Eher judgment is that, as we have already seen, the Netherlands legislation does not confer on PTT a dominant position either on the whole of the market for messenger services or — at least it has not been demonstrated sufficiently — on a significant part of it, but only on the market for basic postal services. In the absence of a dominant position on the market for messenger services there can be no question, either, by analogy with the position in the Höfner and Eher judgment, of the abuse of a dominant position on that market within the meaning of Article 86.
46. Finally a fourth form of abuse is mentioned in the contested decision, namely that the quality condition places private messenger undertakings in a position of legal uncertainty: in so far as PTT-Post BV's express deliveries (that is, the EMS services) reach a comparable level of quality in future, private messenger undertakings would be forbidden, according to the letter of the law, to deal with such items except in the case of packages exceeding 500 g.
(c) Conclusion
47. Although the contested decision is based on correct premises, it makes an incorrect factual application of Article 86, because it shows insufficiently that the Postal Law, 1988, induces or may induce PTT-Post BV to extend its dominant position on the market for basic postal services to the (whole) market for messenger services. In the absence of such an extension of a dominant position, the mere fact that the Postal Law, 1988, reserves to PTT a portion of the market for messenger services cannot be described as an abuse, nor can the other effects of the minimum price rules and the quality condition to which the Commission takes exception be described as abuses of a dominant position on the market for messenger services. Although I might bring my Opinion to an end with this finding, I shall now — in case the Court needs it in developing the grounds of its judgment — go briefly into the question whether any abuse may be justified under Article 90(2) of the Treaty.
3. Application of Article 90(2)
48. In the contested decision the Commission adopted the position that it is for the Member State concerned to show that the conditions for the exemption set out in Article 90(2) are in fact met. The Netherlands Government emphatically denies that, but in my view wrongly. Although it is true that the Commission has the duty of considering whether Article 90(2) should be applied, it cannot reasonably be expected to investigate of its own motion all the circumstances which might possibly give rise to the application of the derogation in Article 90(2).
49. Recital (17) to the contested decision deals with a fact which, according to the Netherlands Government, would exclude the application of the competition rules. The Netherlands had referred to the fact that competition between private messenger undertakings and PTT in the field of messenger services would result in only the less financially attractive destinations being left for PTT. It would therefore be impossible to guarantee for the post office the necessary income to perform properly the duty of transport entrusted to it.
50. First the decision refers to the favourable trend of turnover and profits during the years before the decision. From those figures the Commission deduces that there is no evidence that maintaining the competitive situation existing prior to the new law would jeopardize the basic postal service and that the measure in question is critical for the financial viability of the post office.
51. In the second place the Commission took the view in the contested decision that Article 90(2) was not applicable because the post office already possessed, in fact or by the operation of law, substantial advantages in carrying out its tasks, so that the extension of its dominant position to the messenger service market could not objectively be a necessity for its performance of that task. The parties entirely disagree as to the actual impact of those advantages, but this discussion does not seem to be very important: it is in fact established that the exemptions and economies of scale available to PTT (in particular exemptions from statutory obligations regarding transport of goods and driving hours; economies of scale through the use of the same workforce and the same infrastructure for a varied range of postal services) already had the effect of strengthening its competitive position as compared with its private competitors and their financial situation. Regard being had to the factor of profitability already referred to, it does not seem that the performance of the task of general interest entrusted to PTT-Post BV necessitated the granting of a further competitive advantage.
52. Thirdly and lastly the fact that the post office is not obliged to provide its services throughout the Netherlands at the same rates, which it in fact does not do, as it offers certain customers large discounts (so-called contractual discounts) makes it appear, according to the contested decision, that PTT-Post BV is entirely capable of facing competition from private undertakings. Once more, the parties entirely disagree as to the amount of these discounts but their existence is not denied. My view is that the contested decision correctly mentions that the existence of discounts shows that PTT, like its competitors, is in a position to take account of differences in costs in fixing its rates. This too shows that the performance of the duty of transport imposed on PTT-Post BV does not prevent PTT from reacting appropriately to market trends.
E — Summary and conclusion
53. My examination has led me to the conclusion that it was possible for the contested decision to be based on the power conferred upon the Commission by Article 90(3) of the Treaty to find that a national law is incompatible with a provision of the Treaty having direct effect. In this case however, the Commission did not observe the rights of the defence in the exercise of that power. My main proposal therefore is that Commission Decision No 90/16/EEC concerning the provision in the Netherlands of express delivery services be declared void and that the Commission be ordered to pay the costs.
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.