Avis juridique important

Judgment of the Court of 19 May 1993. - Criminal proceedings against Paul Corbeau. - Reference for a preliminary ruling: Tribunal correctionnel de Liège - Belgium. - Competition - Postal monopoly - Scope. - Case C-320/91. European Court reports 1993 Page I-02533 Swedish special edition Page 00077 Finnish special edition Page I-00223

Summary Parties Grounds Decision on costs Operative part

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Competition ° Undertakings to which Member States grant special or exclusive rights ° Undertakings entrusted with the operation of services of general economic interest ° Postal monopoly ° Permissibility ° Limits ° Specific services dissociable from the service of general economic interest and not compromising its economic equilibrium

(EEC Treaty, Art. 90)

It is contrary to Article 90 of the EEC Treaty for legislation of a Member State which confers on a body such as the Régie des Postes the exclusive right to collect, carry and distribute mail, to prohibit, under threat of criminal penalties, an economic operator established in that State from offering certain specific services, dissociable from the service of general interest, which meet the special needs of economic operators and call for certain additional services not offered by the traditional postal service, in so far as those services do not compromise the economic equilibrium of the service of general economic interest performed by the holder of the exclusive right.

Although the obligation for the holder of the exclusive right to perform a task of general interest by performing its services in conditions of economic equilibrium presupposes that it will be possible to offset less profitable sectors against the profitable sectors and hence justifies a restriction of competition from individual undertakings where the economically profitable sectors are concerned, such a restriction of competition is, however, not justified in all cases. In particular it is not permissible as regards specific services which may be dissociated from the service of general interest, which meet special needs of economic operators and which call for certain additional services such as, where the carriage of mail is concerned, collection from the sender' s address, greater speed or reliability of distribution or the possibility of changing the destination in the course of transit, which the traditional postal service does not offer, in so far as such specific services, by their nature and the conditions in which they are offered, such as the geographical area in which they are provided, do not compromise the economic equilibrium of the service of general economic interest performed by the holder of the exclusive right.

In Case C-320/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal Correctionnel de Liège (Belgium) for a preliminary ruling in the criminal proceedings before that court against

Paul Corbeau,

Civil party claiming damages: Régie des Postes (The Post Office),

on the interpretation of Articles 86 and 90 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: G. Tesauro,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° Paul Corbeau, by Luc Misson, of the Liège Bar,

° the Régie des Postes, by Edouard Marissens, of the Brussels Bar,

° the Government of the Kingdom of Spain, by Alberto Navarro González, Director-General of Community legal and institutional coordination, and Miguel Bravo-Ferrer Delgado, Abogado del Estado in the Legal Department for Community litigation, acting as Agents,

° the United Kingdom, by S. Cochrane, of the Treasury Solicitor' s Department, acting as Agent,

° Ireland, by Louis J. Dockery, Chief State Solicitor, acting as Agent,

° the Commission of the European Communities, by Giuliano Marenco, Legal Adviser, Berend Jan Drijber and Francisco Enrique González Diaz, of the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Paul Corbeau, the Régie des Postes, the United Kingdom, represented by V. Rose, Barrister, the Spanish Government, the Greek Government, represented by V. Kontolaimos and P. Athanassoulis, Legal Advisers, acting as Agents, the Italian Government, represented by I.M. Braguglia, Avvocato dello Stato, acting as Agents, Ireland, represented by J. Cooke SC, and B. Lenihan, Barrister-at-Law, acting as Agents, and the Commission at the hearing on 2 December 1992,

after hearing the Opinion of the Advocate General at the sitting on 9 February 1993,

gives the following

Judgment

1 By judgment of 13 November 1991, received at the Court on 11 December 1991, the Tribunal Correctionnel de Liège (Criminal Court, Liège) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Articles 86 and 90 of the Treaty in order to enable it to determine the compatibility with those articles of the Belgian rules on the postal monopoly.

2 The questions were raised in criminal proceedings before that court against Paul Corbeau, a businessman from Liège, charged with infringing the Belgian legislation on the postal monopoly.

3 In Belgium the Law of 26 December 1956 on the postal service (Moniteur Belge of 30-31 December 1956, p. 8619) and the Law of 6 July 1971 establishing the Régie des Postes (Moniteur Belge of 14 August 1971, p. 9510) confer on the Régie des Postes, a legal person under public law, an exclusive right to collect, carry and distribute throughout the Kingdom all correspondence of whatever nature, and lay down penalties for any infringement of that exclusive right.

4 It may be seen from the documents in the main proceedings which have been sent to the Court, from the written observations submitted and from the oral argument presented at the hearing, that Mr Corbeau provides, within the City of Liège and the surrounding areas, a service consisting in collecting mail from the address of the sender and distributing it by noon on the following day, provided that the addressee is located within the district concerned. As regards correspondence destined for addressees outside that district, Mr Corbeau collects it from the sender' s address and sends it by post.

5 Upon complaint from the Régie des Postes, the Tribunal Correctionnel de Liège decided, in view of its doubts with regard to the compatibility of the Belgian rules in question with Community law, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(a) To what extent is a postal monopoly, such as that organized under the Belgian Law of 26 December 1956 on the postal monopoly, in conformity, as Community law now stands, with the rules of the Treaty of Rome (and in particular with Articles 90, 85 and 86) and with the rules of derived law in force which are applicable in this area?

(b) To what extent, if at all, must such a monopoly be modified in order to comply with the Community obligations imposed on the Member States in this area, and in particular with Article 90(1), and with the rules of derived law applicable in this area?

(c) Is an undertaking in which a statutory monopoly is vested and which enjoys exclusive rights analogous to those described in the Belgian Law of 26 December 1956, subject to the rules of European competition law (and in particular to Articles 7 and 85 to 90 inclusive) by virtue of Article 90(2) of the EEC Treaty?

(d) Does such an undertaking hold a dominant position in a substantial part of the common market within the meaning of Article 86 of the Treaty of Rome, a position deriving either from a statutory monopoly or from the particular circumstances?

6 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure in the main proceedings and the written observations submitted to the Court, which are hereinafter mentioned or discussed only in so far as is necessary for the reasoning of the Court.

7 With regard to the facts in the main proceedings, the questions referred to the Court must be understood as meaning that the national court is substantially concerned with the question whether Article 90 of the Treaty must be interpreted as meaning that it is contrary to that article for the legislation of a Member State which confers on a body such as the Régie des Postes the exclusive right to collect, carry and distribute mail to prohibit an economic operator established in that State from offering, under threat of criminal penalties, certain specific services on that market.

20 It is for the national court to consider whether the services at issue in the dispute before it meet those criteria.

21 The answer to the questions referred to the Court by the Tribunal Correctionnel de Liège should therefore be that it is contrary to Article 90 of the EEC Treaty for legislation of a Member State which confers on a body such as the Régie des Postes the exclusive right to collect, carry and distribute mail, to prohibit, under threat of criminal penalties, an economic operator established in that State from offering certain specific services dissociable from the service of general interest which meet the special needs of economic operators and call for certain additional services not offered by the traditional postal service, in so far as those services do not compromise the economic equilibrium of the service of general economic interest performed by the holder of the exclusive right. It is for the national court to consider whether the services in question in the main proceedings meet those criteria.

Costs

On those grounds,

THE COURT,

in answer to the questions referred to it by the Tribunal Correctionnel de Liège by judgment of 13 November 1991, hereby rules:

It is contrary to Article 90 of the EEC Treaty for legislation of a Member State which confers on a body such as the Ré ie des Postes the exclusive right to collect, carry and distribute mail, to prohibit, under threat of criminal penalties, an economic operator established in that State from offering certain specific services dissociable from the service operated of general interest which meet the special needs of economic operators and call for certain additional services not offered by the traditional postal service, in so far as those services do not compromise the economic stability of the service of general economic interest performed by the holder of the exclusive right. It is for the national court to consider whether the

services in question in the main proceedings meet those criteria.