Abstract
This paper looks at the design and enforcement implications for the compensation fund in the postal sector as a result of the recent ruling of the Court of Justice (“the Court”). In DHL Express (Austria), the Court gave its interpretation of the scope of the obligation to contribute to the compensation fund under Article 9 of the Postal Services Directive. The most recent Confetra case confirms along the same line of reasoning that there is, in principle, nothing to prevent a Member State from making the grant of general authorizations conditional on the obligation to contribute to the compensation fund.
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Notes
- 1.
Judgment of 16 November 2016, C-2/15, DHL Express (Austria), EU:C:2016:880.
- 2.
Directive 97/67/EC of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, OJ L 15, 21.1.1998, p. 14, as last amended by Directive 2008/6/EC of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 52, 27.2.2008, p. 3.
- 3.
Joined Cases C-259/16 and C-260/16, Confetra and others.
- 4.
Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, OJ L 52, 27.2.2008, p. 3.
- 5.
Opinion of Advocate General Campos Sànchez-Bordona delivered on 28 November 2017, EU:C:2016:880.
- 6.
Under Article 7(3) b of the Postal Services Directive, a compensation fund is a mechanism for the sharing of the net cost of the universal service obligations between providers of services and/or users.
- 7.
It follows from the case-law of the Court that Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector; indeed, the fact that these means remain constantly under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources.
- 8.
Article 9 is divided into three paragraphs: paragraph 1 states that, for services which fall outside the scope of the universal service, Member States may introduce “general authorisations”; paragraph 2, first subparagraph, provides that, for services that fall within the scope of the universal service, Member States may introduce “authorisation procedures including individual licenses” and the second subparagraph of that provision provides that the granting of “authorisations” may be made subject to compliance with various conditions, which are listed in the five separate indents within that subparagraph, including the obligation to finance a compensation fund for the discharging of USO; paragraph 3 provides that Member States shall ensure that authorization procedures be transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, made public in advance and based on objective criteria.
- 9.
Judgement in DHL Express (Austria), cit., para 19. The Court was asked to rule on the obligation of an express courier and postal undertaking to contribute to the financing of the national regulatory authority responsible for the sector, in the light of Article 9(2) of the Postal Services Directive.
- 10.
Judgement, para 22.
- 11.
Judgement, para 25.
- 12.
Judgement of 31 May 2018, Joined Cases C-259/16 and C-260/16, Confederazione Generale Italiana dei Trasporti e della Logistica (Confetra) and Others v Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico, ECLI:EU:C:2018:370.
- 13.
Opinion, para 39.
- 14.
On this point, see Commission Staff Working Document, (SWD(2015) 207 final of 17 November 2015)—accompanying the document—Report from the Commission to the European Parliament and the Council on the application of the Postal Services Directive, COM(2015) 568 final, p. 66.
- 15.
Regulation (EU) 2018/644 of the European Parliament and of the Council of 18 April 2018 on cross-border parcel delivery services, OJ L 112, 2.5.2018, p. 19.
- 16.
Opinion, para 47.
- 17.
Judgment of 19 May 1993, C-320/91, Corbeau, EU:C:1993:198, para 19.
- 18.
Judgment of 13 October 2011, C-148/10, DHL International, EU:C:2011:654, para 30 and 52.
- 19.
Judgment of 16 November 2016, C-2/15, DHL Express (Austria), cit.
- 20.
Judgment of 15 June 2017, C-368/15, Ilves Jakelu, EU:C:2017:462, para 29.
- 21.
Opinion, para 80.
- 22.
Ibidem, para 81.
- 23.
Ibidem, para 82.
- 24.
Commission decision SA.38869 of 26.11.2015, Compensation of Poczta Polska for the net cost of USO 2013–2015, para 10. The decision has been challenged before the General Court (see cases T-282/16, Inpost Paczkomaty v Commission and T-283/16, Inpost v Commission, still pending).
- 25.
See Commission notice on the definition of relevant market for the purposes of Community competition law, OJ C 372 of 9.12.1997, p. 5.
- 26.
Judgement of 24 July 2003, C-280/00, Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, EU:C:2003:415 established the following conditions for a public service compensation to escape an aid qualification:
a. ‘(…) First, the recipient undertaking must actually have public service obligations to discharge and those obligations must be clearly defined (…).
b. (…) Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner (…).
c. (…) Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of the public services obligation, taking into account the relevant receipts and a reasonable profit (…).
d. (…) Fourth, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant a public procurement procedure, which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs, which a typical undertaking, well-run and adequately provided within the same sector would incur, taking into account the receipts and a reasonable profit from discharging the obligations.’
- 27.
Commission Decision of 20 December 2011 on the application of Article 106(2) TFEU on State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of SGEI, OJ L 7, 11.1.2012, p. 3.
- 28.
Communication from the Commission: European Framework for State aid in the form of public service compensation, OJ C 8 of 11.1.2012, p. 15.
- 29.
Commission Decision of 1 August 2014 in Case SA.35608 (2014/C) implemented by Greece in favour of Hellenic Post (ELTA), OJ C 348 of 3.10.2014, p. 48.
- 30.
See notably Judgment of 11 July 2002, T-152/99, Hijos de Andrés Molina, SA (HAMSA) v Commission of the European Communities, ECLI:EU:T:2002:188, para. 223.
- 31.
See notably Judgment of 17 September 1980, Case 730/79, Philip Morris Holland BV v Commission of the European Communities-, para. 24; Judgment of 28 February 2002, T-155/98, Société internationale de diffusion et d’édition (SIDE) v Commission of the European Communities, ECLI:EU:T:2002:53, para. 71: “the Commission should have examined the effects of the contested aid on competition and trade between the other operators carrying on the same activity as that for which the aid was granted, in this case the handling of small orders of French-language books. In selecting the export market for French-language books in general as the reference market, the Commission was unable to assess the true impact of the aid on competition. Accordingly, the Commission committed a manifest error of assessment as regards the definition of the market.{_}”.
- 32.
Commission Notice on the definition of relevant market for the purposes of Community competition law, cit.
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Fratini, A., Chovino, M. (2018). Design and Enforcement of Compensation Funds After Confetra: A Legal and Economic Analysis. In: Parcu, P., Brennan, T., Glass, V. (eds) New Business and Regulatory Strategies in the Postal Sector. Topics in Regulatory Economics and Policy. Springer, Cham. https://doi.org/10.1007/978-3-030-02937-1_8
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