Opinion of Advocate General
Mr President,
Members of the Court,
1. In its four questions the national court is substantially asking to Court of Justice to decide whether Articles 90 and 86 of the Treaty prevent a Member State from establishing or maintaining in force a monopoly system which includes, apart from the basic postal service, also a rapid delivery service.
The four questions
2. That is the context in which the national court has referred the matter to the Court of Justice. The questions raised (the wording of which is set out in the Report for the Hearing) concern the following points:
Points (d) and (a)
3. Before I deal with the substance of the problem — which, as mentioned, concerns the legality of the exclusive right conferred for the rapid delivery services and is referred to in points (b) and (c) — it is appropriate to consider briefly the two other aspects outlined by the court of reference.
4. So it is easy to answer the first of the points listed above. Essentially the court of reference is asking whether the Régie des Postes may be described as an undertaking in a dominant position within the meaning of Article 86 of the Treaty. In this respect it must be remembered that in the judgment in Case C-41/90 Höfner and Elser v Macrotron the Court stated that in the context of competition law the concept of an undertaking covers encompasses every entity engaged in an economic activity, regardless of its legal status or the way in which it is financed. In this case it is clear — and is acknowledged by the Régie des Postes itself — that both the basic postal services, consisting of collecting, sorting and distributing the correspondence, and the rapid delivery services constitute activities of an economic nature. There is therefore no reason not to recognize a body such as the Régie des Postes, which performs such activities, as an undertaking within the meaning of the Community rules on competition.
5. It must also be said that the Régie des Postes, by virtue of the aforesaid Belgian Law of 1956, possesses a statutory monopoly in the performance of the services in question and that, according to the case-law of the Court, a dominant position may be the result of laws or regulations conferring exclusive rights on a given undertaking.
Points (b) and (c)
6. Moving on now to deal with the central question raised in these proceedings, I think the analysis may take the following course:
Outline of the case-law
7. First of all, it is well known that, as the Court has consistently held, and as confirmed most recently in the judgment in Joined Cases C-271/90, C-281/90 and C-289/90 (telecommunications services), the mere fact of creating a dominant position by the grant of exclusive rights, within the meaning of Article 90(1) of the Treaty, is not, as such, incompatible with Article 86.
8. Thus in the judgment in Case 10/71 concerning the Port of Mertért — a case not very different from the more recent judgment in Case C-179/90 concerning the Port of Genoa, the Court stated that Article 90(2) is in principle applicable in the case of an undertaking which, in ensuring the navigability of the most important waterway of the State to which it belongs, enjoys certain privileges for the accomplishment of the task entrusted to it by law and for such purposes has close links with the public authorities (see paragraph 11 of the grounds of judgment). It should be stated that in that case the privileges took the form of a de facto monopoly situation enjoyed by the undertaking, under provisions adopted by the public authorities, for loading and unloading goods (the case before the national court concerned a competitor who had been prevented from performing such operations by reason of the monopoly granted to the privileged undertaking).
9. Similarly in the Sacchi judgment, the Court, in stating that Article 90(1) did not prohibit the grant of special or exclusive rights, made it clear that the establishment of a statutory monopoly — such as that granted to Radio Audizione Italiana for radio and television broadcasts — was compatible with the Treaty for considerations of public interest, of a non-economic nature (paragraph 14).
10. The next judgment, van Ameyde, follows the same line. In that case the Court was once again called upon to decide as to the legality of restrictions on freedom of competition arising from the grant of exclusive rights to certain undertakings. An undertaking acting as a loss adjuster (investigating and settling claims for road accidents), a subsidiary of a Netherlands insurance company, had been prevented from pursuing its own business activities by the measure adopted by the Italian authorities under the green card system reserving the business of settling claims for damage caused on the national territory by vehicles insured abroad, solely to insurance companies which were members of the Italian Clearing Office for International Motor-vehicle Insurance (U. C. I.) and thus excluding loss adjusters.
11. More recently the compatibility of exclusive rights with the rules of the Treaty has been considered by the Court in two groups of judgments. A first group includes the judgments in Höfner and Eiser, ERT and Porto di Genova. In those three decisions the Court starts expressly from the principle, already recognized in the GB-Inno-BM v ATAB judgment, according to which the Member States may not adopt measures impairing the effectiveness of the Community rules on competition. The Court deduced that Article 90(1) in conjunction with Article 86 is infringed when the States confer exclusive rights creating a situation in which the undertaking possessed of them cannot avoid misusing them. It should be stated that the said judgments do not define (at least not clearly) what factors make it possible to distinguish a situation necessarily leading to an abuse from a situation which on the other hand does not have that effect. Nor do the judgments specify whether it is sufficient to find that a given situation is potentially one leading to abuse or on the contrary whether it must be ascertained in every case that a given abuse has actually been committed. However, from the whole of the grounds of judgment in the aforementioned cases it would seem that, in order to establish whether the grant or the maintenance of an exclusive right is able to prejudice the effectiveness of the Community rules on competition and is thus incompatible with Article 90(1), it is appropriate to consider features such as the ability of the possessor of the exclusive right to satisfy demand on the market in question and (at least) the possibility that he might be encouraged to engage in conduct contrary to Article 86 of the Treaty.
12. It should also be stressed that in the ERT judgment the Court recognized that Article 59 of the Treaty prevents the establishment of a statutory monopoly (relating to the broadcasting of television programmes produced by the monopoly itself and the re-broadcasting of programmes originating in other Member States), when such a monopoly entails discriminatory effects to the detriment of broadcasts from other Member States. However, in the subsequent judgment in Case C-353/89 Commission v Netherlands, the Court stated that rules which require broadcasting organizations to have recourse, for the production of programmes, to a national undertaking clearly comes under Article 59 and is therefore prohibited unless justified grounds relating to the general interest (see paragraph 31 et seq. of the grounds of judgment). Under Article 59 therefore, a statutory monopoly for services cannot restrict the freedom of those for whom the service is intended to have recourse to persons providing services who are established in other Member States. However, Article 59 does not make it possible to deal with a different situation: that in which, as precisely in this case, the statutory monopoly prevents a national operator from providing the service for national users.
13. The case-law so far oudined is finally completed by another group of judgments including those in RTT v GB-Inno-BM and in Case C-271/90 (telecommunications services). The latter in particular makes it clear that the extension of a statutory monopoly to a neighbouring but separate market without objective justification is prohibited as such by the combined provisions of Articles 90(1) and 86. That judgment, as made even clearer in the RTT v GB-Inno-BM judgment, is based on the idea that a national provision cannot lawfully put a public undertaking or one enjoying special or exclusive rights in a position which, if it had been the result of the undertaking's own conduct, would constitute an infringement of Article 86 of the Treaty.
Considerations regarding the case-law as a whole
14. The review of the case-law so far seems to confirm that Community law lays down precise limits to the power of Member States to confer exclusive rights. In the services sector provisions conferring such rights may be appraised in the light of the combined provisions of Articles 90 and 86 or, where the conditions are met, Articles 90 and 59.
The statutory monopoly of the basic postal service.
15. In all the Member States a universal postal service has been established for the collection, sorting and delivery of correspondence (basic postal service). Clearly that service, inasmuch as it makes possible communications between individuals, meets a vital need of society.
16. However, Mr Corbeau's counsel, referring to the judgment in Höfner and Elser, has contended that the Belgian postal monopoly is no longer justified by reason of its inability to offer qualitatively acceptable services capable of satisfying demand and the users' expectations.
17. In these circumstances I think that Articles 90 and 86 of the Treaty do not prevent the conferment on the postal administration of exclusive rights having as their object the service of collecting, at points predetermined for the purpose, and the sorting and delivery of correspondence.
The rapid delivery service
18. As may be seen, moreover, from the Commission's Green Paper and as has been stressed at length by the parties which have submitted observations in these proceedings — including the Régie des Postes — the maintenance of the universal postal service does not justify the recognition of exclusive rights having an unlimited scope. The restrictions on competition resulting from a statutory monopoly, in fact, must in principle be restricted to what is strictly indispensable for meeting the requirements for which the monopoly itself was set up.
19. That having been said, and for the examination of the compatibility with Articles 90 and 86 of the application of the exclusive right not only to the basic postal service but also to the rapid delivery services, it should be pointed out that the requirements justifying the maintenance of the monopoly for the basic postal service do not, on the contrary, exist for the rapid delivery service.
20. Then as regards the effect on intra-Community trade of the restrictions on competition linked to the application of the postal monopoly to the rapid delivery service, it is sufficient to state that the national legislation in question is such as to prevent operators from other Member States either from establishing themselves on the Belgian market to provide rapid delivery services or from providing such services from other Member States.
21. There is one more point. In these proceedings both the governments which have submitted observations and the Régie des Postes itself have agreed in taking the view that, in principle, the exclusive rights granted to the postal administration, to be compatible with the Treaty, must have a limited scope and cannot be extended to rapid delivery services showing a genuine added value and consequently differing from the basic service.
22. In that respect it seems to me that the following outline observations may be made.
23. In the light of the foregoing considerations I think it would be possible to reply to the national court as follows:
1 Original language: Italian.
2 [1991] ECR I-1979.
3 See the judgments in Case 311/84 CBEM [1985] ECR3261 and, most recently, ¡n Case C-260/89 ERT [1991] ECR I-2925.
4 Spain v Commission [1992] ECR I-5833.
5 Ministère Public Luxembourgeois v Madeleine Hein, née Muller [1971] ECR 723.
6 Mera Convenzionali Porto di Genova [1991] ECR I-5889.
7 It should be stated that in the Port de Merten judgment, as in the Inter-Huües judgment (Case 172/82 [1983] ECR 555), the Court takes as its starting point the principle that Article 90(2) is not a provision which is direcdy applicable. That interpretation, already contradicted by other judgments delivered more or less at the same time as the two abovementioned judgments, appears by now to have been entirely overruled in the light ofmore recent decisions (see in particular the judgments in ERT and Porto di Genova).
8 Judgment in Case 155/73 [1974] ECR 409.
9 Judgment in Case 90/76 van Ameyde v U. C. I. [1977] ECR 1091.
10 In the main proceedings the loss adjuster had asked the court to declare illegal UCI's claim to entrust investigation and settlement of accident claims solely to insurance companies which were members of the UCI itself, and consequently to declare illegal any action taken by UCI with regard to third persons intended to restrict the plaintiff's freedom of action and to take over its customers.
11 Case 13/77 [1977] ECR 2115.
12 The fact that the formula of a situation necessarily leading to an abuse is ambiguous (a rather confusing formula according to L. Gyselen in CMLR 1992, p. 1238) and therefore capable of arousing some uncertainties in application is confirmed by the rather divergent results arrived at by national courts called upon to apply, in individual cases, the Porto di Genova judgment. In fact according to some courts (Tribunale di Genova, order of 9 July 1992; Pretura di Genova, orders of 19 June, 22 June, 20 July and 12 August 1992, reported in Foro Italiano, 1992, I, 2811), the Court did not determine the illegality as such of the exclusive right conferred on the port companies but restricted itself to condemning misuse of them: it follows, according to that case-law, that the statutory reservation granted to the port companies could be regarded as void only if it appeared that the monopoly rights had actually been exercised in an abusive manner. Other courts on the other hand (Pretura de La Spezia, order of 3 June 1992; Pretura di Massa, order of 2 June 1992, also reported in Foro Italiano, cit.) have thought that, under the judgment of the Court, the statutory reservation must be considered, as such, to be incompatible with Community law. Both the Italian Government, in the circular issued to give effect to the judgment in Porto di Genova and the Consiglio di Stato in an opinion given on that circular (Parere 13 May 1992, No 598, reported in Foro Italiano, 1992, III, 425) have taken the second view. Both took the view that the judgment of the Court decided that the last paragraph of Article 110 of the Codice della Navigazione was illegal so that the companies' monopoly in the performance of dock work was void. It is abo worth pointing out that, in the said opinion, the Consiglio di Stato, taking a different point of view from that expressed in the ministerial circular, thought that the judgment of the Court not only involved the elimination of the port monopolies but also had repercussions on the system of administrative franchise for the performance of dock work referred to in Article 111 of the Codice della Navi-tazione. The Consiglio in fact deduced from the Court's ecision a series of criteria which the administrative authority was to observe in granting franchises. Those obligations are based on the statement that, in accordance with the principles of Community legislation, the system of administrative franchise must not result in the de facto establishment of illegal monopoly situations owing to a mistaken use of administrative power arising from the issue of a single authorization or a restricted number thereof. According to the Consiglio di Stato, the implementation of Community rules involves the grant of a number of franchises so as to guarantee the free market and a system of effective competition between undertakings. It follows that, in granting franchises, the administrative authority is required to assess the economic details of the relationship between the number of undertakings and the requirements of port traffic and the legal details of the requirement to implement the principles derived from Community rules on the subject of the free market and free competition. It is also pointed out in the opinion that the administrative provisions adopted in this matter must contain a proper statement of the reasons on which they are based.
13 [1991] ECRI-4069.
14 In the Höfner and Eher judgment the Court had stated that Article 59 was not applicable to that case in view of the fact that both the undertaking possessing the exclusive right and the person for whom the service was intended were nationals of one and the same Member State.
15 Case C-18/88 [1991] ECR I-5973.
16 In the Green Paper on the single market in postal services — COM (91) 476 final, of 11 June 1992 — the Commission stresses the need to guarantee the provision throughout the Community of the universal postal service at prices accessible to all. That objective must be attained through the establishing (inasmuch as it was needed in Member States individually) of a set of reserved services which would confer some special and exclusive rights, in order to maintain the resources necessary for the undertaking the public service mission in sound conditions; at the same time, consistent with this objective, to have largest possible part of the sector operating in free competition (sic) (Executive Summary, p. 10).
17 The fact that such services are those which most frequently characterize the rapid delivery service may be seen not only from the Green Paper but also from the decisions adopted by the Commission under Article 90(3) in relation to the scheme for the operations of the rapid delivery service in Spain (Decision 90/456/EEC of 1 August 1990, OJ 1990 L 10, p. 19) and in the Netherlands (Decision 90/16ÆEC of 20 December 1989, OJ 1989 L 10, p. 47).
18 As regards the provision of rapid delivery services in a territorially restricted area, see Commission Decision 90/16/EEC in which it was stated that on 1 January 1989 the undertakings providing such services in the Netherlands were to a large extent small and medium-sized undertakings employing for that service some 4000 persons mostly engaged in distributing the correspondence within the country.
19 Judgment in Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803 at paragraph 54 et seq. of the grounds of judgment.
20 In Decision 90/16/EEC the Commission considered the Netherlands legislation providing for a minimum tariff for express delivery services. In that case the Commission, without calling in question the minimum tariff as such, was critical of the fact that the tariff applied to the private operators and not to the postal administration, which reserved to itself the power to carry out the rapid delivery service even below the minimum tariff. It should also be noted that the adoption of a tariff system to provide a legal distinction between the province of the rapid delivery service (liberalized) and the basic postal service (subject to a monopoly) is recommended in the Commission Green Paper (see pp. 43, 201, 359 and 360).