Abstract
Article 12 of the Postal Services Directive (hereinafter “PSD”) stipulates that (special) tariffs for each of the services forming part of the universal service (hereinafter “US”) shall be, inter alia, non-discriminatory, while Article 102 of the Treaty on the Functioning of the European Union (hereinafter “TFEU”) prohibits the abuse of a dominant position. Building on this legal context, the aim of this chapter is to answer the following hypothetical question: Is a universal service provider (hereinafter “USP”) with a dominant position entitled to introduce, for services forming part of the US, a quantity rebate scheme that considers a group of companies as a single sender, where the quantity rebate is based on the total quantity of the group, and not as a group of separate senders?
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Notes
- 1.
OJ L 15, 21.1.1998, p14, OJ L 176, 5.7.2002, p21, and OJ L 52, 27.2.2008, p3.
- 2.
OJ C 326, 26/10/2012, p1–390.
- 3.
Article 12 PSD: »Member States shall take steps to ensure that the tariffs for each of the services forming part of the universal service comply with the following principles:
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prices shall be affordable and must be such that all users, independent of geographical location, and, in the light of specific national conditions, have access to the services provided. Member States may maintain or introduce the provision of a free postal service for the use of blind and partially-sighted persons,
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prices shall be cost-oriented and give incentives for an efficient universal service provision. Whenever necessary for reasons relating to the public interest, Member States may decide that a uniform tariff shall be applied, throughout their national territory and/or cross-border, to services provided at single piece tariff and to other postal items,
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the application of a uniform tariff shall not exclude the right of the universal service provider(s) to conclude individual agreements on prices with users,
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tariffs shall be transparent and non-discriminatory,
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whenever universal service providers apply special tariffs, for example for services for businesses, bulk mailers or consolidators of mail from different users, they shall apply the principles of transparency and non-discrimination with regard both to the tariffs and to the associated conditions. The tariffs, together with the associated conditions, shall apply equally both as between different third parties and as between third parties and universal service providers supplying equivalent services. Any such tariffs shall also be available to users, in particular individual users and small and medium-sized enterprises, who post under similar conditions.
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- 4.
Case C-356/12 Wolfgang Glatzel v Freistaat Bayern, paragraph 43; see also Cases C-441/12 Almer Beheer BV, Daedalus Holding BV v Van den Dungen Vastgoed BV, Oosterhout II BVBA, paragraph 47; joined Cases 117/76 Albert Ruckdeschel & Co., Kulmbach, Hansa-Lagerhaus Stroh & Co ., Hamburg, and Hauptzollamt Hamburg-St . Annen and 16/77 Diamalt AG, Munich and Hauptzollamt Itzenhoe, paragraph 7; Case C-144/04 Werner Mangold v Rüdiger Helm, paragraphs 74–77. Although the last case applied to discrimination on the grounds of age, the same reasoning is mutatis mutandis applicable also to other areas where non-discrimination is particularly relevant and stipulated by the EU legislation. For a detailed analysis of this case see Craig and de Burca (2011, p212–213).
- 5.
See Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraph 55; Case C-356/12 Wolfgang Glatzel v Freistaat Bayern, paragraph 43; see also case C-340/13 bpost SA v IBPT, paragraph 27.
- 6.
Case C-340/13 bpost SA v IBPT.
- 7.
Consolidators are providers of routing services (routing to the distribution center).
- 8.
Bpost case, paragraphs 31 and 33.
- 9.
Ibidem, paragraph 48.
- 10.
For thorough competition-law based analysis of relevant EU and EFTA courts decisions in the postal sector prior to the bpost case, see Geradin and Malamataris (2014).
- 11.
Bpost case, paragraph 31.
- 12.
Ibidem, paragraph 38.
- 13.
Ibidem, paragraph 33.
- 14.
Paragraph 38 of the bpost case: “However, when the consolidators hand on to bpost the mail which they have already collected from different senders, that does not have the effect of increasing the overall volume of mail in bpost’s favour. It follows therefrom that, except to the limited extent that those consolidators are themselves senders, their activity does not, of itself, contribute to the increase in the volume of mailings handed on to bpost.”
- 15.
Ibidem, paragraph 47.
- 16.
Ibidem, paragraphs 40 and 41.
- 17.
Ibidem, paragraph 41.
- 18.
Ibidem, paragraph 48.
- 19.
This reasoning was clearly elaborated in the theory before the judgment (Geradin 2011).
- 20.
OJ C 45, 24.2.2009, p7–20.
- 21.
Guidance, paragraph 32.
- 22.
Guidance, paragraph 37.
- 23.
Case 85/76 Hoffmann-La Roche & Co. AG v Commission of the European Communities.
- 24.
Ibidem, paragraph 89: “An undertaking which is in a dominant position on a market and ties purchasers—even if it does so at their request—by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of Article 86 of the Treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer's obtaining all or most of its requirements—whether the quantity of its purchases be large or small—from the undertaking in a dominant position.”
- 25.
Case T-286/09 Intel Corp. v European Commission.
- 26.
Ibidem, paragraphs 76–78.
- 27.
At the moment of preparing this chapter, the INTEL case is still under appeal (Judgment C-413/14 P). However, the Advocate General’s Opinion in Case C-413/14 P is clear; the case should be referred back to the General Court for a fresh review.
- 28.
Case T-203/01 Manufacture française des pneumatiques Michelin v Commission of the European Communities.
- 29.
Ibidem, paragraph 58.
- 30.
CaseC-23/14 Post Danmark A/S v Konkurrencerådet (hereinafter: “Post Danmark II case”), paragraph 28.
- 31.
Ibidem, paragraph 32.
- 32.
Ibidem, paragraph 28.
- 33.
Hoffmann-La Roche case, paragraph 90.
- 34.
Hoffmann-La Roche case, paragraph 91.
- 35.
Post Danmark II case, paragraph 28.
- 36.
Even simple quantity rebate may constitute an abuse of a dominant, e.g. when the pricing strategy is predatory.
- 37.
For the OECD Competition Committee, the U.S. antitrust agencies, the Department of Justice and the Federal Trade Commission prepared note where they explain that loyalty rebates can have the potential to be exclusionary, but they also have the potential to promote competition. Since they did not adopt particular test for assessment of potentially anticompetitive elements of loyalty rebates, detailed and case-by-case assessment of all relevant facts and circumstances is necessary. [https://www.ftc.gov/system/files/attachments/us-submissions-oecd-other-international-competition-fora/1606fidelity_rebates-us.pdf].
- 38.
All attempts to codify and harmonize European corporate group law have failed. The first attempts at the EU level were made in 1972, 1974 and 1975, in the Proposal for a Fifth Directive on Company Law and the preliminary draft Ninth Directive (Böhlhoff and Budde 1984, p163–197). The proposals were considered too rigid and too similar to the German Konzernrecht approach, and were therefore not successful. Since then, this issue has been raised several times, including in the Report of the High Level Group of Company Law Experts on a Modern Regulatory Framework for Company Law in Europe (Winter et al. 2002), by the Reflection Group on the Future of EU Company Law (Antunes et al. 2011) and its successor, the Informal Company Law Expert Group (Conac et al. 2016 ).
- 39.
Germany and countries that adopted German Konzernrecht model, e.g. Czech Republic, Slovenia, Croatia, Portugal, Hungary, and some non-European states, e.g. Brazil and recently Turkey, developed comprehensive and codified regulation of corporate groups (Emmerich and Habersack 2013, p20). Second approach is partial and codified regulation of corporate groups, e.g. Italian Codice Civile, which recognizes the interest of a corporate group (Kousedghi 2007). Third approach is recognition of the specific interests of a corporate group that derives from case law, e.g. the so-called Rozenblum decision of the French Court of Cassation, in which, in the context of criminal law, the court stated that if the manager acted in the group’s interest, the act cannot be considered as a misuse (Conac et al. 2008, p31). In fourth, last approach there are no specific rules or provisions applicable to corporate groups, e.g. the UK model (Antunes et al. 2011).
- 40.
For instance Czech Republic, Slovenia, Croatia, Portugal and Hungary.
- 41.
For instance, Brazil, Taiwan and recently Turkey.
- 42.
German Stock Corporation Act, paragraphs 15–18 and 291.
- 43.
Ibidem, paragraph 308.
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Rozman, T. (2018). Quantity Rebate Scheme: Applicability of “per sender” Reasoning for Corporate Groups. In: Parcu, P., Brennan, T., Glass, V. (eds) The Contribution of the Postal and Delivery Sector. Topics in Regulatory Economics and Policy. Springer, Cham. https://doi.org/10.1007/978-3-319-70672-6_5
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