JUDGMENT OF THE COURT (Tenth Chamber)

17 December 2020 ( *1 )

(Appeal – State aid – Article 106(2) TFEU – Services of general economic interest (SGEIs) – EU framework – Application to State aid in the form of public service compensation – Postal sector – Directive 97/67/EC – Article 7 – Compensation for the net cost arising from universal service obligations – Decision declaring the aid compatible with the internal market)

In Joined Cases C‑431/19 P and C‑432/19 P,

APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 June 2019,

Inpost Paczkomaty sp. z o.o ., established in Cracow (Poland), represented by M. Doktór, radca prawny,

appellant in Case C‑431/19 P,

and

Inpost S.A ., established in Cracow (Poland), represented by W. Knopkiewicz, radca prawny,

appellant in Case C‑432/19 P,

the other parties to the proceedings being:

European Commission , represented by D. Recchia, K. Blanck and K. Herrmann, acting as Agents,

defendant at first instance,

Republic of Poland , represented by B. Majczyna, acting as Agent,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of M. Ilešič, President of the Chamber, C. Lycourgos (Rapporteur) and I. Jarukaitis, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1By their appeals, Inpost Paczkomaty sp. z o.o. and Inpost S.A. seek to have set aside the judgment of the General Court of the European Union of 19 March 2019, Inpost Paczkomaty and Inpost v Commission ( T‑282/16 and T‑283/16 , EU:T:2019:168 ; ‘the judgment under appeal’), by which the General Court dismissed their actions seeking the annulment of Commission Decision C(2015) 8236 final of 26 November 2015, by which the Commission did not raise objections with regard to the measure notified by the Polish authorities relating to the aid granted to Poczta Polska in the form of compensation for the net cost arising from the performance, by that company, of its universal postal service obligations for the period from 1 January 2013 to 31 December 2015 (‘the decision at issue’).

Legal context

European Union law

The Postal Directive

2Under the heading ‘Financing of universal services’, Article 7 of Directive 97/67/EC of the European Parliament and of the Council 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 1998 L 15, p. 14 ), as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 ( OJ 2008 L 52, p. 3 , and corrigendum OJ 2015 L 225, p. 49 ) (‘the Postal Directive’), provides:

‘1. Member States shall not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. Member States may finance the provision of universal services in accordance with one or more of the means provided for in paragraphs 2, 3 and 4, or in accordance with any other means compatible with the Treaty.

2. Member States may ensure the provision of universal services by procuring such services in accordance with applicable public procurement rules and regulations, including, as provided for in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [( OJ 2004 L 134, p. 114 )], competitive dialogue or negotiated procedures with or without publication of a contract notice.

3. Where a Member State determines that the universal service obligations, as provided for in this Directive, entail a net cost, calculated taking into account Annex I, and represent an unfair financial burden on the universal service provider(s), it may introduce:

(a)

a mechanism to compensate the undertaking(s) concerned from public funds; or

(b)

a mechanism for the sharing of the net cost of the universal service obligations between providers of services and/or users.

4. Where the net cost is shared in accordance with paragraph 3(b), Member States may establish a compensation fund which may be funded by service providers and/or users’ fees, and is administered for this purpose by a body independent of the beneficiary or beneficiaries. Member States may make the granting of authorisations to service providers under Article 9(2) subject to an obligation to make a financial contribution to that fund or to comply with universal service obligations. The universal service obligations of the universal service provider(s) set out in Article 3 may be financed in this manner.

5. Member States shall ensure that the principles of transparency, non-discrimination and proportionality are respected in establishing the compensation fund and when fixing the level of the financial contributions referred to in paragraphs 3 and 4. Decisions taken in accordance with paragraphs 3 and 4 shall be based on objective and verifiable criteria and be made public.’

3Under Article 8 of that directive, the provisions of Article 7 thereof are to be without prejudice to Member States’ right to organise the siting of letter boxes on the public highway, the issue of postage stamps and the registered mail service used in the course of judicial or administrative procedures, in accordance with their national legislation.

The SGEI Framework

4The Communication from the European Commission entitled ‘European Union framework for State aid in the form of public service compensation (2011)’ ( OJ 2012 C 8, p. 15 ; ‘the SGEI Framework’) provides, in paragraph 14 of Section 2.2, which is headed ‘Genuine service of general economic interest as referred to in Article 106 [TFEU]’:

‘For the scope of application of the principles set out in this Communication, Member States should show that they have given proper consideration to the public service needs supported by way of a public consultation or other appropriate instruments to take the interests of users and providers into account. This does not apply where it is clear that a new consultation will not bring any significant added value to a recent consultation.’

5In Section 2.6, headed ‘Compliance with Union public procurement rules’, paragraph 19 of the SGEI Framework provides:

‘Aid will be considered compatible with the internal market on the basis of Article 106(2) [TFEU] only where the responsible authority, when entrusting the provision of the service to the undertaking in question, has complied or commits to comply with the applicable Union rules in the area of public procurement. This includes any requirements of transparency, equal treatment and non-discrimination resulting directly from the Treaty and, where applicable, secondary Union law. Aid that does not comply with such rules and requirements is considered to affect the development of trade to an extent that would be contrary to the interests of the Union within the meaning of Article 106(2) of the Treaty.’

6In Section 2.8, headed ‘Amount of compensation’, paragraph 25 of that framework specifies:

‘Under the net avoided cost methodology, the net cost necessary, or expected to be necessary, to discharge the public service obligations is calculated as the difference between the net cost for the provider of operating with the public service obligation and the net cost or profit for the same provider of operating without that obligation. Due attention must be given to correctly assessing the costs that the service provider is expected to avoid and the revenues it is expected not to receive, in the absence of the public service obligation. The net cost calculation should assess the benefits, including intangible benefits as far as possible, to the SGEI provider.’

7In Section 2.9, headed ‘Additional requirements which may be necessary to ensure that the development of trade is not affected to an extent contrary to the interests of the Union’, paragraphs 51, 52 and 56 of that framework provide:

‘51. The requirements set out in sections 2.1 to 2.8 are usually sufficient to ensure that aid does not distort competition in a way that is contrary to the interests of the Union.

52. It is conceivable, however, that[,] in some exceptional circumstances, serious competition distortions in the internal market could remain unaddressed and the aid could affect trade to such an extent as would be contrary to the interest of the Union.

…

56. Another situation in which a more detailed assessment may be necessary is where the Member State entrusts a public service provider, without a competitive selection procedure, with the task of providing an SGEI in a non-reserved market where very similar services are already being provided or can be expected to be provided in the near future in the absence of the SGEI. Those adverse effects on the development of trade may be more pronounced where the SGEI is to be offered at a tariff below the costs of any actual or potential provider, so as to cause market foreclosure. The Commission, while fully respecting the Member State’s wide margin of discretion to define the SGEI, may therefore require amendments, for instance in the allocation of the aid, where it can reasonably show that it would be possible to provide the same SGEI [on] equivalent conditions for the users, in a less distortive manner and at lower cost for the State.’

8Paragraph 60 of the SGEI Framework states, in Section 2.10, headed ‘Transparency’:

‘For each SGEI compensation falling within the scope of this Communication, the Member State concerned must publish the following information on the internet or by other appropriate means:

(a)

the results of the public consultation or other appropriate instruments referred to in paragraph 14;

(b)

the content and duration of the public service obligations;

(c)

the undertaking and, where applicable, the territory concerned;

(d)

the amounts of aid granted to the undertaking on a yearly basis.’

Polish law

9In Poland, the Postal Directive was transposed by the ustawa Prawo pocztowe (Postal Law) of 23 November 2012 (Dz. U. of 2012, item 1529) (‘the Postal Law’). According to Article 3(30) of the Postal Law, the services which, in that Member State, fall within the scope of the universal service are those involving the sending of postal letters and parcels and of items for the blind which are not performed by the designated operator pursuant to its universal service obligations.

10Under Articles 45 and 46 of that law, as part of the universal postal service, postal letters and parcels must be transported and distributed every working day and at least five days per week. The postal items concerned may not weigh more than 2000 grams, though parcels may weigh up to 10000 grams.

Background to the dispute

11Poczta Polska (‘PP’) is a Polish public limited company whose sole shareholder is the State Treasury of the Republic of Poland. At the time of the facts at issue, its activities consisted, essentially, of universal postal services and courier services, of which it was at that time the main provider in Poland.

12On the basis of Article 178(1) of the Postal Law, the implementation of the reform of the Polish postal service was first of all entrusted, for a period of three years from 1 January 2013, to PP, which was thus charged with assuming the obligations of provider of the universal postal service throughout Poland.

13The Polish authorities then notified the Commission, on 10 June 2014, of an aid scheme concerning, on the one hand, a mechanism for the sharing of the net cost of the universal service obligations and, on the other, the creation of a compensation fund to complement the setting up of that mechanism.

14The compensation fund was financed partly by the contributions which the postal operators concerned were required to pay to that fund and partly by the State budget.

15In particular, the obligation to contribute laid down in Article 108(2) of the Postal Law covered postal operators providing equivalent universal services, whose annual revenue from that activity nevertheless had to be greater than 1 million zlotys (PLN) (around EUR 218603). In all cases, the amount due by each operator concerned could not exceed, annually, a cap of 2% of the amount of the revenue from its universal service provision.

16Initially intended to cover the period from 2013 to 2026, that mechanism was ultimately limited, by a letter sent by the competent Polish authorities to the Commission on 5 January 2015, to the period 2013 to 2015 (‘the national compensation scheme’ or ‘the measure at issue’).

17The appellants, which are part of the Polish group Integer.pl S.A., were required to contribute to the financing of the compensation fund.

18On 26 November 2015, pursuant to Article 4(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] ( OJ 2015 L 248, p. 9 ), the Commission adopted the decision at issue, in which it decided not to raise objections to the national compensation scheme, on the ground that it constituted State aid which was compatible with the internal market. According to the Commission, in accordance with the criteria set out in Sections 2.1 to 2.8 of the SGEI Framework, the measure at issue is not such as to affect trade to an extent contrary to the interests of the European Union. Moreover, the operating principles of the compensation fund do not result in any serious distortions of competition and do not therefore give rise to a need for additional requirements to ensure that the development of trade is not affected to an extent incompatible with the interests of the European Union.

Procedure before the General Court and the judgment under appeal

19By applications lodged at the Registry of the General Court on 30 May 2016, the appellants brought two actions seeking the annulment of the decision at issue.

20By decisions of 28 October 2016, the President of the Third Chamber of the General Court granted the Republic of Poland leave to intervene in support of the form of order sought by the Commission.

21By decision of the President of the Third Chamber of the General Court of 14 November 2016, the appellants’ actions were joined for the purposes of the written and oral parts of the procedure and of the decision which closes the proceedings.

22In support of their actions, the appellants put forward seven pleas in law, alleging, in essence, in the case of the first three pleas, infringements of Article 106(2) TFEU inasmuch as the SGEI Framework and Article 7 of the Postal Directive were not respected, in the case of the fourth plea, infringement of Articles 7 and 8 of that directive, in the case of the fifth plea, infringement of Article 102 and Article 106(1) TFEU, in the case of the sixth plea, infringement of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union and, in the case of the seventh plea, breach of the obligation to state reasons.

23The General Court, in the judgment under appeal, rejected each of those pleas in law and, consequently, dismissed the actions in their entirety.

Forms of order sought

24The appellants claim that the Court should:

–

set aside the judgment under appeal;

–

annul the decision at issue, and

–

order the Commission to pay the costs of the present appeal proceedings and those of the proceedings at first instance.

25The Commission and the Polish Government contend that the Court should dismiss the appeals and order the appellants to pay the costs.

The appeals

26In support of their appeals, the appellants rely on four grounds, which cover, in essence, the first five pleas in law of their actions for annulment. Those grounds of appeal allege infringement of Article 106(2) TFEU inasmuch as a number of the SGEI Framework’s requirements were not respected (first to third grounds), breach of the principles of the FEU Treaty concerning the award of public contracts (first ground) and infringement of Article 7 of the Postal Directive (first, third and fourth grounds).

First ground of appeal

Arguments of the parties

27By their first ground of appeal, the appellants allege, on the one hand, infringement of Article 106(2) TFEU inasmuch as the General Court wrongly held that the requirements of paragraph 19 of the SGEI Framework had been respected and, on the other, breach of the principles of non-discrimination, equal treatment and transparency in the award of public contracts, and incorrect interpretation of Article 7(2) of the Postal Directive.

28They take the view that, even where a Member State designates the universal service provider by legislative means, outside the procedures for the award of public contracts, the processes for the adoption and publication of the law must be assessed from the perspective of compliance with the requirements of transparency, non-discrimination and equal treatment. In the present case, the national authorities misled the operators concerned by indicating that the level of contribution to the compensation fund would be 100% lower than the level which was ultimately introduced, thereby depriving those operators of any profit and causing losses. Designating the universal service provider in such a manner undermines the requirement of transparency.

29The appellants add, in their replies, that the first ground of appeal is admissible inasmuch as they expressly indicated that the General Court was wrong to conclude that the mere act of adopting and publishing the legal act on the basis of which PP provided the universal service is sufficient basis for the conclusion that the requirements arising from paragraph 19 of the SGEI Framework were satisfied.

30The Commission and the Polish Government take the view that the first ground of appeal is inadmissible. The Polish Government adds that that ground of appeal is, in any event, unfounded.

Findings of the Court

32However, in their first ground of appeal, the appellants, in essence, merely indicate the requirements which, according to them, result from paragraph 19 of the SGEI Framework with regard to compliance with the principles of non-discrimination, equal treatment and transparency, without, however, identifying precisely the error of law by which the judgment under appeal is alleged to be vitiated.

33In that connection, it must be observed that, contrary to the submissions set out in their reply, the shortcomings identified in the foregoing paragraph of the present judgment are not addressed solely by the claim that the General Court wrongly held that simply adopting and publishing the legal act, on the basis of which PP provided the universal service, is sufficient basis for the conclusion that the requirements arising from paragraph 19 of the SGEI Framework are satisfied.

34In addition, the appellants do not provide any information with regard to the alleged infringement of Article 7(2) of the Postal Directive.

35It follows that the first ground of appeal is inadmissible.

Second ground of appeal

Arguments of the parties

36In their second ground of appeal, the appellants argue, in essence, that the General Court infringed Article 106(2) TFEU inasmuch as it wrongly held that the requirements of paragraphs 14 and 60 of the SGEI Framework had been observed.

37By the first part of the second ground of appeal, they challenge paragraphs 46 to 48 and 51 of the judgment under appeal and maintain that, in order to respect the requirements of paragraph 14 of the SGEI Framework, it is not sufficient to organise a public consultation, but it is also necessary to establish that that consultation enabled proper consideration to be given to the public service needs supported or that the use of another appropriate instrument enabled the interests of end users and providers to be taken into account.

38However, in the present case, there are no documents or evidence indicating the Polish Government’s response to the observation formulated by the appellants during the public consultation of September 2010, regarding their criticism of the level of contribution of 1%, which prove, inter alia, that that observation was unfounded.

39Even if the General Court did not draw the appropriate conclusions, the factors stated in paragraph 137 of the judgment under appeal show the extent to which that public consultation was illusory and failed to give proper consideration to the needs of users or to those of providers. The effect of the increase in the level of contribution from 1% to 2% was to deprive the alternative operators required to contribute to the financing of the net cost of almost all of the profits made, to oblige the universal service provider to cover 95% of the total net cost, to reduce to a minimum the contribution of the State Treasury, and effectively to pass on to the market all of the financing, despite the mixed nature of the compensation fund (contributed to by operators and the State budget).

40The appellants also challenge the General Court’s statement, in paragraph 48 of the judgment under appeal, that, given that the operators were able to express their opinions on the level of contribution of 1%, it was unnecessary, de facto, to repeat the consultation with regard to the amended level of contribution of 2%. It is clear that the level, whether higher or lower, is significant for the observations and positions formulated during the public consultation, in particular in the light of the fact that the assessment of that level must be correlated to the profitability of the activity concerned. The General Court’s position amounts to depriving the public consultation of all value, since the position of the operators consulted may be completely ignored and that consultation may lead to a decision that is the complete opposite of the positions expressed during that consultation, as happened in the present case.

41By the second part of the second ground of appeal, relating to the requirements arising from paragraph 60 of the SGEI Framework, the appellants allege, first, that, contrary to the General Court’s findings, in paragraph 54 of the judgment under appeal, it is clear from paragraph 60 of the SGEI Framework that the results of the public consultation are to be published separately. In any event, the Polish Government did not publish such results either separately or together with the publication of the Postal Law.

42Second, it is clear from paragraphs 14 to 16 of the SGEI Framework that, in order to fulfil its obligations, the Polish Government should have published not only the mandate awarding the provision of the universal service to PP, namely the Postal Law, specifying the public service obligations and the methods for calculating compensation, but also the results of the public consultation.

43The Polish Government takes the view that the first part of the second ground of appeal is inadmissible inasmuch as the questions whether or not a new consultation was necessary, whether the appellant companies were able to effectively make known their observations and what the Polish authorities’ motives were are of a factual nature. Furthermore, the Commission and the Polish Government take the view that the second ground of appeal and the third part of the third ground of appeal must be dismissed as unfounded.

Findings of the Court

44As regards the first part of the second ground of appeal, alleging failure to comply with paragraph 14 of the SGEI Framework, the appellants argue, in essence, that, in order to comply with that provision, it is insufficient to organise a public consultation, but it must also be shown that that consultation enabled consideration to be given to the interests of end users and providers. They argue that, in a situation in which the level of compensation doubled in comparison with the level discussed during the public consultation, the General Court’s position, according to which it was not necessary to repeat the consultation, amounts to depriving such a consultation of all value.

45As a preliminary point, it must be observed, as the General Court rightly held in paragraph 44 of the judgment under appeal, that in the exercise of its discretion under Article 106(2) TFEU, the Commission may adopt rules of conduct in order to establish the criteria on the basis of which it proposes to assess the compatibility, with the internal market, of aid measures related to the operation of an SGEI, envisaged by the Member States. In adopting such rules of conduct, such as those of the SGEI Framework, and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its aforementioned discretion and, in principle, cannot depart from those rules without being found, where appropriate, to be in breach of general principles of law, such as the principle of equal treatment or that of the protection of legitimate expectations (see, by analogy, judgments of 8 March 2016, Greece v Commission, C‑431/14 P , EU:C:2016:145 , paragraphs 68 and 69 , and of 19 July 2016, Kotnik and Others, C‑526/14 , EU:C:2016:570 , paragraphs 39 and 40 ).

46In that regard, it must be recalled that, according to paragraph 14 of the SGEI Framework, ‘for the scope of application of the principles set out in this [framework], Member States should show that they have given proper consideration to the public service needs supported by way of a public consultation or other appropriate instruments to take the interests of users and providers into account. This does not apply where it is clear that a new consultation will not bring any significant added value to a recent consultation’.

47Therefore, it must be held that the General Court correctly stated, in paragraph 46 of the judgment under appeal, that it is apparent from the wording of that provision that a public consultation is not mandatory, as such a procedure constitutes only one of the appropriate instruments that the Member State may use in order to give consideration to the needs of the public service supported and to take account of the interests of service users and providers.

48Moreover, in paragraphs 47 and 48 of the judgment under appeal, the General Court observed that, inasmuch as, during the public consultation of September 2010, the appellants were able to effectively make known their views on the conditions relating to the operation of the compensation fund, in that they were, in particular, able to express their disagreement with a level of contribution lower than the level ultimately adopted, arguing that they thought that that level was already excessive, a new consultation would not have brought, on that point, ‘any significant added value’ for the purposes of paragraph 14 of the SGEI Framework.

49It must be held that, in doing so, the General Court applied paragraph 14 of the SGEI Framework without erring in law, inasmuch as it examined the question of whether, in view of the relevant evidence in the file brought before it and, in particular, taking into account the public consultation of September 2010, it was clear that a new public consultation would not bring significant added value, in accordance with the second sentence of paragraph 14. Moreover, the appellants make no claims that the General Court used, in that regard, a different legal criterion to that required in paragraph 14.

50In those circumstances, it must be observed that the fact that the appellants allege, in essence, as is apparent from paragraphs 39 and 40 of the present judgment, that an increase of 100% in the level of compensation, between the level discussed during the public consultation of September 2010 and that ultimately adopted in the decision at issue by the competent Polish authorities, means that a new public consultation would necessarily have had significant added value amounts to asking the Court to review a factual assessment carried out by the General Court.

52Consequently, the first part of the second ground of appeal must be dismissed.

53As regards the second part of the second ground of appeal, the appellants claim that, in paragraph 54 of the judgment under appeal, the General Court misconstrued the requirements arising from paragraph 60 of the SGEI Framework. Thus, they argue, first, that it is clear from paragraph 60 that, contrary to the General Court’s findings, the results of the public consultation must be published separately. Second, they argue that the General Court was wrong to find that the Polish Government fulfilled its obligation to publish the results of the public consultation by publishing the Postal Law.

54According to paragraph 60(a) of the SGEI Framework, for each SGEI compensation falling within the scope of the SGEI Framework, the Member State concerned must publish via the internet or by any other appropriate means [referred to in paragraph 14 of that framework], inter alia, the results of the public consultation.

55In paragraph 54 of the judgment under appeal, the General Court pointed out, first of all, that, in recital 158 of the decision at issue, the Commission observed, without erring as to the facts, that the Postal Law had been published. Next, it held that paragraph 60 of the SGEI Framework does not give rise to an obligation for the Member State to publish the results of the public consultations separately. Finally, it inferred from the fact that, according to the findings in paragraphs 46 to 50 of the judgment under appeal, the Commission could validly conclude that the transparency requirements referred to in paragraph 14 of the SGEI Framework had been complied with and that its corresponding conclusion which appears in recital 160 of the decision at issue does not contain any errors.

56In that regard, it is apparent from the wording of paragraph 60(a) of the SGEI Framework that, contrary to the appellants’ submissions, Member States are not obliged to publish the results of the public consultation separately, and those results may appear, for example, in the act by which a Member State entrusts responsibility for the operation of the SGEI to the undertaking concerned.

57However, the fact that the Postal Law, which, as is not disputed, contains the essential information relating to the rules for calculating compensation and the amount of that compensation, was published, does not necessarily imply that the Republic of Poland complied with the obligation, laid down in paragraph 60(a) of the SGEI Framework, to publish the results of the public consultation, in the present case that of September 2010.

58In that regard, the Polish Government argues that that obligation was satisfied, inasmuch as the concept of ‘results of the public consultation’, within the meaning of paragraph 60(a) of the SGEI Framework, corresponds, in fact, to the decision to award specific compensation according to defined rules and that, consequently, the publication of that information, which appears in the Postal Law, means that those results have also been published.

59However, it must be observed that, in view of the clear wording of paragraph 60(a) of the SGEI Framework, such an interpretation of the obligation to publish the results of the public consultation, within the meaning of that paragraph, cannot be accepted. In that regard, it must be stated that, where a Member State decides to satisfy the obligation to publish the results of the public consultation by means of the publication of the act imposing responsibility for the operation of an SGEI, it is necessary, in order not to deprive that obligation of its effectiveness, that that publication make sufficiently detailed, express reference to the results of the public consultation carried out as part of the procedure which led to the adoption of that act.

60It follows that the General Court’s statement in the first sentence of paragraph 54 of the judgment under appeal, according to which the Commission observed, without erring as to the facts, that the Postal Law ‘had been published’, is insufficient to justify the conclusion that the Polish Government had complied with the obligation to publish the results of the public consultation of September 2010, for the purposes of paragraph 60(a) of the SGEI Framework.

61The same applies to the General Court’s statement, in the last sentence of paragraph 54 of the judgment under appeal, according to which the fact that the Commission could validly take the view that the transparency requirements referred to in paragraph 14 of the SGEI Framework had been complied with supports the conclusion that it did not err in stating that the requirement for transparency had been satisfied.

62The requirements following from paragraph 14, regarding proof that consideration has been given to the public service needs supported, by means of a public consultation or other appropriate instruments, cannot be equated with the transparency requirement laid down in paragraph 60(a) of the SGEI Framework, which specifically concerns the publication of the results of the public consultation. Consequently, the fact that a Member State has complied with the requirements of paragraph 14 of the SGEI Framework does not necessarily imply that it has also complied with the transparency obligation, within the meaning of paragraph 60(a) thereof.

63It follows from the foregoing considerations that, in paragraph 54 of the judgment under appeal, the General Court made several errors of law with regard to the interpretation of the requirements arising from paragraph 60 of the SGEI Framework.

64However, it is clear from the case-law of the Court that an error of law committed by the General Court does not invalidate a judgment under appeal if its operative part is well founded on other legal grounds (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P , EU:C:2017:720 , paragraph 73 and the case-law cited).

65In the present case, it is clear from recital 122 of the decision at issue that the Commission took the view that the Republic of Poland did not have to prove that it had given due consideration to the public service needs by way of a public consultation or other appropriate instruments, in accordance with the requirements of paragraph 14 of the SGEI Framework, because the public service obligations assigned to PP corresponded to the universal postal service requirements deriving from the Postal Directive. The Commission further observed, in recital 122, that a public consultation on the Postal Law and the implementing regulations for that law was, in any event, carried out. In that regard, the use of the words ‘in any event’ in English demonstrates that the latter observation by the Commission appears to be made for the sake of completeness.

66In paragraph 50 of the judgment under appeal, which was not contested by the appellants in their appeals, the General Court upheld that assessment by the Commission, which appears in recital 122 of the decision at issue, to the effect that, since the Polish authorities had complied with the requirements arising from the Postal Directive, they no longer had to comply with the obligations laid down in paragraph 14 of the SGEI Framework.

67It follows that the errors made by the General Court as found in paragraph 63 of the present judgment, with regard to the interpretation of the requirements arising from paragraph 60 of the SGEI Framework, in particular that relating to the publication of the results of the public consultation referred to in paragraph 14 of that framework, within the meaning of paragraph 60(a), are not such as to affect the General Court’s conclusion regarding the dismissal of the appellants’ actions.

68It follows from the foregoing considerations that the second part of the second ground of appeal cannot be upheld and that that ground of appeal must be dismissed in its entirety.

Third ground of appeal

Arguments of the parties

69The third ground of appeal, which is in four parts, alleges, on the one hand, infringement of Article 106(2) TFEU inasmuch as the General Court wrongly held that the requirements of paragraph 52 of the SGEI Framework had been respected, and, on the other, infringement of Article 7(1) and (3) to (5) of the Postal Directive.

70As regards the first part of that ground of appeal, the appellants challenge paragraphs 84 to 86 of the judgment under appeal and argue, in essence, that the compensation fund was discriminatory and that the Polish Government incorrectly transposed Article 7(3) and (4) of the Postal Directive.

71The General Court’s position lacks coherence inasmuch as it found that mail services did not constitute services equivalent to universal services, whereas it held that that was the case, from the point of view of consumers, for services falling within the scope of the universal service.

72First, the appellants claim that, as regards the manner in which those services are provided, their pricing and other legal requirements, the universal service and services falling within the scope of the universal service in no way coincide. Those two types of service are fundamentally different.

73In particular, first of all, the universal service must be provided uniformly, according to a defined distribution of post offices and on the basis of a specific level of transport of postal items. However, the providers of services falling within the scope of the universal service are not subject to any of those restrictions.

74Next, the universal service must be performed at affordable prices validated by the national postal regulatory authority, whereas the providers of services falling within the scope of the universal service are free to set the prices of those services. The Commission used a uniform percentage for those two types of service, whereas PP’s financial results in respect of the provision of those types of service are very different. Those results show the erroneous nature of the General Court’s conclusions concerning the identical treatment of the universal service and services falling within the scope of the universal service on account of their allegedly similar characteristics.

75Finally, the universal service requires the operator to guarantee that postal items are collected from the postbox intended to receive items for sending, and distributed, at least once per working day and not less than five days per week, with the exception of public holidays, and in a manner which enables the sender to obtain acknowledgement of receipt of a registered delivery. National legislation does not impose such a requirement on services falling within the scope of the universal service; that requirement may arise from the operator’s contractual obligations, but is not, however, a constituent feature of those services.

76Secondly, the appellants argue that the General Court’s statement in paragraph 85 of the judgment under appeal is inaccurate and contrary to mathematical principles on the ground that the percentage paid by PP to the compensation fund can in no event be greater than the contribution of the other postal operators.

77Thirdly, as regards paragraph 86 of the judgment under appeal, they recall that the universal service is provided in the general interest under quasi-monopolistic conditions, whereas services falling within the scope of the universal service constitute a liberalised market segment characterised by strong competition.

78In the second part of the third ground of appeal, they allege that the General Court infringed Article 7(5) of the Postal Directive on account of the disproportionate nature of the compensation fund.

79First, when it examined the actions, the General Court completely ignored the question relating to the difference between the weighted average cost of capital (WACC), used to calculate the financing of the net cost, set at 10.82%, and the profitability level of equivalent services on which the Commission relied to determine the proportionality of the contribution of 2% of revenue. Inasmuch as the minimum cost of capital was set at 10.82% for the segment of the postal services market, it is manifestly contradictory to find, as did the Commission, then the General Court, that a profitability level of 5.5% for equivalent services makes it possible to adopt a contribution level of 2% as a level which does not constitute a factor driving efficient competitors out of the market or a factor which would dissuade them from entering it.

80Secondly, the appellants take the view that the General Court’s conclusions are unsupported by the evidence in the present case. On the one hand, even assuming that no data were available to the Commission other than that relating to PP’s profitability level, the conclusions drawn by the Commission are, in any event, inaccurate.

81On the other hand, the Commission should have anticipated that 2013 was the first year of the liberalisation of the postal services market and that, consequently, the increase in competition on the market for services falling within the scope of the universal service would be accompanied by a fall in profitability.

82Moreover, the appellants contest the General Court’s position that 2013 alone, which is in fact the only year in which the appellants achieved the level of profitability anticipated by the Commission, is relevant for the present disputes, because, in adopting the decision at issue, the Commission could not know whether the issue of the net cost would also arise for 2015.

83Finally, the creation of the compensation fund also requires the introduction of a mechanism to protect against undue advantages. The compensation fund should take into consideration the profits made by the designated operator in subsequent years, in particular where the provider has not been designated by means of a competition, and the particular situation of the market during the initial phase of its liberalisation.

84In the third part of the third ground of appeal, the appellants argue that the General Court infringed Article 7(5) of the Postal Directive by failing to recognise the lack of transparency in the process for the creation of the compensation fund. In that regard, the General Court wrongly invoked the judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council ( T‑643/11 , EU:T:2014:1076 ).

85They recall that they argued before the General Court that the final form of the fund and the maximum contribution to the financing (2% of revenue) had not been the subject of a consultation procedure and that interested parties had not been able to formulate their observations. Thus, it is the case-law deriving from the judgment of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council ( C‑141/08 P , EU:C:2009:598 ), which is relevant in the present case because the possibility cannot be excluded that the Polish Government may have changed its position if interested parties had been able to express their views with regard to the doubling of the maximum level of contribution to the financing.

86As regards the fourth part of the third ground of appeal, the appellants argue that, in paragraphs 153 to 156 of the judgment under appeal, the General Court infringed Article 7(3) of the Postal Directive on account of a failure to understand the unfair financial burden condition.

87First of all, the appellants consider that, contrary to the judgments of 6 October 2010, Commission v Belgium ( C‑222/08 , EU:C:2010:583 ), and of 6 October 2010, Base and Others ( C‑389/08 , EU:C:2010:584 ), the national regulations provide that, since the net cost generates losses, the amount of those losses automatically represents an unfair burden on PP. That presumption means that neither the amount of the losses nor the characteristics specific to PP, such as the quality of its equipment, its economic and financial situation or its market share, require to be examined in connection with the unfair burden condition.

88In view of the fact that EU legislation relating to the financing of the universal service in the telecommunications market and in the postal market broadly coincides, the Court’s position expressed in the abovementioned judgments should be taken into account in the present case. In that regard, the method followed by the national regulations to finance the net cost of the universal service is incompatible with the financing model provided for in the Postal Directive.

89The appellants’ position regarding the manner of calculating the unfair burden on the designated operator is, moreover, confirmed by the 2012 Report of the European Regulators Group for Postal Services, entitled ‘Net Cost Calculation and Evaluation of a Reference Scenario’, and by legal literature.

90Next, they allege breach of the principle of uniform interpretation of EU law, on the ground that, in Poland, national courts ruling on actions against decisions of the national regulatory authority concerning the postal market do not take into consideration requests for a preliminary ruling sent to the Court in the course of the proceedings.

91Finally, the national regulations are inadequate because, in principle, under the review procedure, the decision on the substance is not examined.

92The appellants indicate, in their replies, that, in the first, second and fourth parts of the third ground of appeal, they expressly identified the grounds of the judgment under appeal and they also presented arguments seeking, not to call into question the facts, but to show the incorrect legal classification by the General Court of services falling within the scope of the universal service and to demonstrate that the General Court incorrectly applied EU law with regard to infringement of Article 7(1) and (3) to (5) of the Postal Directive.

93The Commission considers that the first, second and fourth parts of the third ground of appeal are inadmissible and that, in any event, that ground of appeal is unfounded in its entirety. As to the Polish Government, it considers that that ground of appeal is inadmissible in its entirety and, in any event, unfounded.

Findings of the Court

94In the first part of the third ground of appeal, the appellants contest, in essence, paragraphs 84 to 86 of the judgment under appeal and argue that the compensation fund was discriminatory and that the Polish Government incorrectly transposed Article 7(3) and (4) of the Postal Directive.

95It must be observed, first, that the arguments advanced by the appellants, and summarised in paragraphs 70 to 77 of the present judgment, in support of the first part of that ground of appeal, seek, in essence, to challenge the General Court’s factual assessment, which appears in paragraphs 84 and 85 of the judgment under appeal, regarding the interchangeable nature of universal postal services and equivalent postal services and the implications of the method for calculating the amount of the contribution which PP was required to make.

96However, it is clear from the settled case-law of the Court that the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of the facts and the assessment of the evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 13 February 2020, Greece v Commission (Permanent pasture), C‑252/18 P , EU:C:2020:95 , paragraph 59 and the case-law cited).

97In the present case, it must be observed that the appellants do not allege any distortion of the facts or evidence examined by the General Court.

98Secondly, as to the allegation concerning paragraph 86 of the judgment under appeal, the appellants fail to indicate with sufficient clarity the error of law which they claim that the General Court made in the judgment under appeal, which, in the light of the case-law cited in paragraph 31 of the present judgment, prevents the Court from reviewing the legality of the assessment carried out by the General Court.

99It follows that the first part of the third ground of appeal is inadmissible in its entirety and must be dismissed.

100The second part of the third ground of appeal alleges infringement of Article 7(5) of the Postal Directive on account of the disproportionate nature of the compensation fund. However, just as for part of the line of argument relating to the first part of that ground of appeal, the line of argument in support of the second part seeks, in essence, to call into question a factual assessment by the General Court regarding the examination of the proportionality of the compensation fund, carried out by it, in the light of the evidence which was submitted to it, without alleging any distortion in that regard.

101Consequently, the second part of the third ground of appeal is also inadmissible and must, therefore, be dismissed.

102By the third part of the third ground of appeal, the appellants argue, in essence, that the General Court infringed Article 7(5) of the Postal Directive by failing to recognise the lack of transparency in the process for the creation of the compensation fund.

103It must be recalled, in that regard, that, as is apparent from paragraphs 45 to 52 of the present judgment, relating to the examination of the first part of the second ground of appeal, the General Court did not err in law by concluding, in paragraphs 47 and 48 of the judgment under appeal, that the appellants were able to effectively make known their views and that a new consultation would not have brought ‘any significant added value’ for the purposes of paragraph 14 of the SGEI Framework, in comparison with the public consultation of September 2010.

104In those circumstances, and without it being necessary for the Court to rule on the admissibility of the third part of the third ground of appeal, it must be held that, inasmuch as, in that part, the appellants neither allege nor demonstrate that the obligation to respect the principle of transparency, laid down in Article 7(5) of the Postal Directive, requires, in the present case, a more extensive consultation of interested parties than that arising from paragraph 14 of the SGEI Framework, the grounds set out in paragraphs 45 to 51 of the present judgment are sufficient basis for the finding that that part is unfounded.

105The fourth part of the third ground of appeal alleges that, in paragraphs 153 to 156 of the judgment under appeal, the General Court infringed Article 7(3) of the Postal Directive on account of a failure to understand the unfair financial burden condition.

106It must be observed, as submitted by the Commission and the Polish Government, that, despite the fact that the appellants reproduce and specify the contested paragraphs of the judgment under appeal, the fourth part must be dismissed as inadmissible.

107With regard to the part of the line of argument advanced by the appellants in the fourth part of the third ground of appeal which is summarised in paragraphs 87 to 89 and 91 of the present judgment, it must be observed that, by that line of argument, in essence, they merely contest the content of the decision at issue and of the Postal Law, but at no point do they refer, in detail, to the assessment carried out by the General Court or indicate in what respect the General Court is alleged to have erred in law.

108The Court has already held that arguments in an appeal which criticise the decision whose annulment was applied for before the General Court, rather than the judgment delivered by the General Court following that application for annulment, are manifestly inadmissible (order of 27 September 2012, Brighton Collectibles v OHIM, C‑624/11 P , not published, EU:C:2012:598 , paragraph 35 ).

109As to the line of argument relating to breach of the principle of uniform interpretation of EU law, summarised in paragraph 90 of the present judgment, it is sufficient to hold that the appellants have failed to identify precisely the error of law by which the judgment under appeal is alleged to be vitiated.

110In any event, it is important to emphasise that the fourth part of the third ground of appeal is also unfounded.

111The appellants contest, in essence, the method used by the Polish authorities, which was approved by the Commission, according to which, since the net cost of providing universal services generates losses for the provider of those services, the amount of those losses represents an unfair financial burden on that provider, within the meaning of Article 7(3) of the Postal Directive. In particular, the appellants take the view that the examination of the ‘unfair financial burden’ condition must correspond to the examination required by the Court, inter alia in the judgments of 6 October 2010, Commission v Belgium ( C‑222/08 , EU:C:2010:583 , paragraphs 49 and 50 ), and of 6 October 2010, Base and Others ( C‑389/08 , EU:C:2010:584 , paragraphs 42 and 43 ), relating to the comparable field of the universal electronic communications service, which involves an analysis of the specific situation of the undertaking concerned on the basis of a range of factors, such as, in particular, the quality of its equipment, its economic and financial situation or its market share.

112In that regard it must be recalled, first, that, in paragraph 153 of the judgment under appeal, the General Court, in essence, observed that, in accordance with Article 7(3) of the Postal Directive, the Postal Law requires the competent national authority to determine whether the universal service obligations represent an unfair financial burden on the designated provider. According to the General Court, that is the situation in the present case inasmuch as it is apparent from recital 16 of the decision at issue that it falls to the Polish postal regulator to carry out that assessment under the Postal Law which implemented the Postal Directive.

113The latter statement by the General Court, with regard to the obligation of that postal regulator to determine whether the universal service obligations represent an unfair financial burden on the designated provider, within the meaning of Article 7(3) of the Postal Directive, was not contested by the appellants.

114Secondly, in paragraph 156 of the judgment under appeal, the General Court pointed out that the measure at issue does not give rise to any automatic right to compensation for the net cost of PP’s universal service obligations, inasmuch as, as is apparent from recitals 16, 84 to 87 and 144 of the decision at issue, that right arises only if the universal service provision leads to accounting losses. In paragraph 156, the General Court adds that that right to compensation corresponds to the lower of the amounts relating either to the accounting losses resulting from the universal service provision or to the net cost of the universal service obligations, which means, as the Commission pointed out in recital 144 of the decision at issue, that the measure at issue is more restrictive than the SGEI Framework as that framework potentially allowed the net cost of the universal service obligations to be compensated in full.

115Assuming that the case-law arising from the judgments of 6 October 2010, Commission v Belgium ( C‑222/08 , EU:C:2010:583 ), and of 6 October 2010, Base and Others ( C‑389/08 , EU:C:2010:584 ), were applicable in the interpretation of the Postal Directive, it must, on the one hand, be observed that the observation, in paragraph 156 of the judgment under appeal, that the right to compensation arises only if the universal service provision involves accounting losses for the undertaking responsible for providing those services supports the finding that the criterion used by the Court in that case-law, namely that the burden concerned is, for the undertaking in question, ‘excessive in view of the undertaking’s ability to bear it’, was satisfied.

116On the other hand, it must be observed that it is clear from paragraph 25 of the SGEI Framework, to which reference is made in recital 144 of the decision at issue, which is mentioned by the General Court in paragraph 156 of the judgment under appeal, that the amount of compensation may also be calculated by the ‘net avoided cost’ methodology, under which the net cost necessary, or expected to be necessary, to discharge the public service obligations is calculated and corresponds to the difference between the net cost for the provider of operating with the public service obligation and the net cost or profit for the same provider of operating without that obligation. Thus, in view of the wording of paragraph 25, such a method of calculation could lead, in principle, to compensation for the cost of universal service obligations even in the absence of financial losses on the part of the provider which is subject to the public service obligations.

117The appellants did not dispute that, as the General Court correctly noted in paragraph 156 of the judgment under appeal, that method for calculating the right to compensation is less restrictive than that applied by the Republic of Poland in the Postal Law and examined by the Commission in the decision at issue.

118It should be added, in that regard, that the Community framework for State aid in the form of public service compensation ( OJ 2005 C 297, p. 4 ), which was applicable at the time of the relevant facts in the cases which gave rise to the judgments of 6 October 2010, Commission v Belgium ( C‑222/08 , EU:C:2010:583 ), and of 6 October 2010, Base and Others ( C‑389/08 , EU:C:2010:584 ), invoked by the appellants, did not provide for such a method relating to the ‘net avoided cost’, which confirms that that case-law is not, in any event, decisive in examining the merits of the General Court’s assessment in the context of the present appeals.

119It follows from the foregoing that the fourth part of the third ground of appeal is inadmissible and, in any event, unfounded, and must therefore be dismissed.

120Consequently, inasmuch as none of the parts of the third ground of appeal has been upheld, the third ground of appeal must be dismissed in its entirety.

Fourth ground of appeal

Arguments of the parties

121By their fourth ground of appeal, which refers to paragraph 167 of the judgment under appeal, the appellants argue that the General Court infringed Article 7(1) of the Postal Directive inasmuch as it accepted the financing of the cost of the universal service by a certain number of exclusive and special rights granted to PP.

122They emphasise that the exclusive and special rights, other than those referred to in Article 8 of the Postal Directive, which PP continued to enjoy, were expressly stated in the decision at issue, in recitals 52 to 56 thereof, and that their existence was not a matter of dispute. It was not, therefore, necessary, in order to find that those services existed, to put forward arguments capable of establishing that they did not fall within the category of the rights referred to in Article 8. It was sufficient, to that end, to analyse that article, which the General Court failed to do. They add that some of those exclusive and special rights have no functional link with the universal service.

123In their replies, they claim to have demonstrated that, contrary to what the General Court stated, it is apparent from the complaints which they lodged with the Commission that the exclusive rights granted to PP were not permissible under the sectoral regulations relating to the universal service. Moreover, in the light of the relevant case-law, the General Court considered that it was justified in examining, inter alia, the rules of sectoral financing of the universal service. In that regard, they recall that the question of exclusive rights is functionally linked to the aid at issue granted to PP.

124The Commission and the Polish Government take the view that the fourth ground of appeal is inadmissible and, in any event, unfounded.

Findings of the Court

125In paragraph 167 of the judgment under appeal, the General Court found that the appellants had failed to put forward any argument capable of establishing that the rights granted to PP, as specified in recitals 51 to 56 of the decision at issue, fell outside the scope of the exception expressly provided for in Article 8 of the Postal Directive and, consequently, no argument was capable of proving the error constituted by the alleged infringement of that directive.

126In that regard, in their fourth ground of appeal, the appellants argue, in essence, that the exclusive and special rights granted to PP were mentioned in the decision at issue and that their existence was not a matter of dispute, which implied that it was not necessary to put forward arguments capable of establishing that they did not fall within the category of the rights referred to in Article 8 of the Postal Directive.

127On the one hand, it must be held that, in doing so, the appellants, without invoking any distortion of their arguments before the General Court, do not allege breach of the general principles of law or the rules of procedure in relation to the burden of proof and the taking of evidence.

128On the other hand, the argument that the rights accorded to PP constituted exclusive and special rights subject to the prohibition laid down in Article 7(1) of the Postal Directive, and that, consequently, they did not fall within the scope of the exception in Article 8 of that directive cannot succeed.

129According to the first sentence of Article 7(1) of the Postal Directive, Member States are not to grant or maintain in force exclusive or special rights for the establishment and provision of postal services. In that regard, Article 8 of that directive constitutes an exception to the provisions of Article 7 of that directive inasmuch as it provides that those provisions are to be without prejudice to Member States’ right to organise the siting of letter boxes on the public highway, the issue of postage stamps and the registered mail service used in the course of judicial or administrative procedures, in accordance with their national legislation.

130It is thus apparent from the relationship between the provisions of Article 7(1) and Article 8 of the Postal Directive that the existence of exclusive or special rights, falling, in principle, within the scope of the prohibition referred to in Article 7(1), does not necessarily imply that such rights may not belong to the various categories of service referred to in Article 8 of that directive and to which that prohibition is without prejudice.

131Consequently, the fourth ground of appeal must be dismissed.

132It follows from all of the foregoing considerations that, inasmuch as none of the grounds of the appeals has been upheld, the appeals must be dismissed.

Costs

133Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.

134Article 138(1) of those rules, which applies to the appeal procedure by virtue of Article 184(1) of those rules, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

135Since Inpost Paczkomaty and Inpost have been unsuccessful and the Commission and the Polish Government have applied for costs to be awarded against them, those companies must be ordered to pay the costs relating to the present appeals.

On those grounds, the Court (Tenth Chamber) hereby:

1.Dismisses the appeals;

2.Orders Inpost Paczkomaty sp. z o.o. and Inpost S.A. to pay the costs.

[Signatures]

( *1 ) Language of the case: Polish.