ORDER OF THE COURT (Eighth Chamber)

30 June 2016 ( * )

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Public undertakings — Amendment of Slovakian legislation on postal services — Exclusive rights granted to incumbent operator Slovenská pošta a.s. to provide ‘hybrid’ mail services — Decision declaring those provisions incompatible with Articles 86 EC and 82 EC)

In Case C‑293/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 June 2015,

Slovenská pošta a.s., established in Banská Bystrica (Slovakia), represented by O. Brouwer and A. Pliego Selie, advocaten,

appellant,

the other parties to the proceedings being:

European Commission, represented by T. Christoforou, R. Sauer and C. Vollrath, acting as Agents,

defendant at first instance,

Slovak Republic, represented by B. Ricziová, acting as Agent,

Cromwell a.s., established in Bratislava (Slovakia),

Slovak Mail Services a.s., established in Bratislava,

Prvá Doručovacia a.s., established in Bratislava,

ID Marketing Slovensko s. r. o., formerly TNT Post Slovensko s. r. o., established in Bratislava,

interveners at first instance,

THE COURT (Eighth Chamber),

composed of D. Šváby, President of the Chamber, M. Safjan and M. Vilaras (Rapporteur), Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By its appeal, Slovenská pošta a.s. seeks to have set aside the judgment of the General Court of the European Union of 25 March 2015 in Slovenská pošta v Commission (T‑556/08, not published, ‘the judgment under appeal’, EU:T:2015:189), by which the General Court dismissed its action for annulment of Commission Decision C(2008) 5912 final of 7 October 2008 on the Slovakian postal legislation relating to hybrid mail services (Case COMP/39.562 — Slovakian postal law) (‘the decision at issue’).

Background to the dispute

2 The information contained in paragraphs 9 to 35 of the judgment under appeal in relation to Slovenská pošta, the background to the dispute at first instance and the content of the decision at issue may be summarised as follows for the purposes of the present proceedings.

3 Slovenská pošta, a limited company wholly owned by the Slovak State, was, at the time of the adoption of the decision at issue, the provider of the universal postal service in Slovakia, a service over which it has a monopoly.

4 In November 2007, members of the Slovak Parliament proposed an amendment to the Slovakian legislation applicable to postal services, so that the delivery of hybrid mail would, without any possible ambiguity, be reserved to Slovenská pošta.

5 It is apparent from the terms of the decision at issue recalled in paragraph 23 of the judgment under appeal that hybrid mail is defined as a service whereby the content of communications is electronically transmitted to the service provider, electronically processed and converted into the physical form of a letter mail item, which is printed, enveloped and then physically delivered to the addressee.

6 The proposed amendment of the Slovakian legislation on postal services was adopted on 15 February 2008 and entered into force on 1 April 2008.

7 After having sent a letter of formal notice to the Slovak Republic and a number of requests for information to postal services market participants and to the Slovak postal regulator, and after having examined the replies received, the European Commission adopted the decision at issue, the operative part of which is worded as follows:

‘Article 1

[The relevant provisions of the amended Slovakian legislation], the interpretation of these acts and their preceding versions by the Slovak authorities, in particular by the Postal Regulatory Office, as well as enforcement measures undertaken against private operators, are contrary to Article 86(1) [EC], read in conjunction with Article 82 [EC] to the extent that they reserve to Slovenská pošta the delivery of hybrid mail items which was previously open to competition and that they enforce such a reservation.

Article 2

The Slovak Republic shall inform the Commission, within one month of being notified of this decision, of the measures it has taken to put an end to the infringement identified in Article 1.

Article 3

This Decision is addressed to the Slovak Republic.’

8 As the General Court indicated in paragraph 27 of the judgment under appeal, the Commission found that Slovenská pošta was a public undertaking which enjoyed exclusive rights within the meaning of Article 86(1) EC, in so far as the relevant Slovakian legislation reserved to it the right to distribute certain postal items.

9 In paragraph 28 of the judgment under appeal, the General Court found that the Commission had defined two relevant services markets, namely (i) the traditional mail services market and (ii) the hybrid mail services market, the latter constituting a separate, but neighbouring, services market from the former, because hybrid mail services share certain similarities with traditional mail services while fulfilling different needs of users. The Commission took the view that the relevant geographical markets coincided with the territory of the Slovak Republic.

10 As is apparent from paragraphs 29 to 31 of the judgment under appeal, the Commission found that Slovenská pošta held a dominant position on the market for traditional mail services. It found that the Slovak Republic’s reservation to Slovenská pošta of the delivery of items of hybrid mail infringed Article 86(1) EC, read in conjunction with Article 82 EC. According to the Commission, the amendment of the relevant Slovakian legislation had given Slovenská pošta exclusive rights over the activity of delivering items of hybrid mail, an activity which, before that amendment, was de iure and de facto open to competition in Slovakia (‘the extension of the monopoly into a neighbouring market’). Moreover, the Commission considered that the State measure at issue had limited the services available to end-users, such as track-and-trace services and seven-days-a-week delivery, although there was demand for such services (‘the limitation of the service’). According to the Commission, that abuse was capable of affecting trade between Member States.

11 In paragraph 32 of the judgment under appeal, the General Court stated that the Commission had examined the State measure at issue in the light of Article 86(2) EC and had found that the Slovak Republic had failed to prove that, if the hybrid mail services had remained open to competition, the achievement of the universal service would have been jeopardised or, at the very least, could not have been carried out under economically acceptable conditions.

The procedure before the General Court and the judgment under appeal

12 By application lodged at the General Court Registry on 17 December 2008, Slovenská pošta brought an action for annulment of the decision at issue.

13 It put forward four pleas in law, alleging (i) breach of the principle of sound administration, on account of the absence of an appropriate investigation of all the facts and interests involved, and infringement of the obligation to state reasons as laid down in Article 253 EC; (ii) infringement of its right to be heard; (iii) infringement of Article 86 EC, read in conjunction with Article 82 EC; and (iv) breach of the principles of legal certainty and legitimate expectations. The General Court rejected all those pleas and, consequently, dismissed the action in its entirety.

Forms of order sought before the Court of Justice

14 Slovenská pošta claims that the Court should:

– set aside, in whole or in part, the judgment under appeal and deliver final judgment on the action, annulling the decision at issue in whole or in part, or, in the alternative, refer the case back to the General Court; and

– order the Commission to pay the costs of the proceedings before the General Court and the Court of Justice, including the costs of the interveners.

15 The Commission contends that the Court should:

– dismiss the appeal in its entirety as inadmissible and, in any event, unfounded; and

– order Slovenská pošta to pay the costs.

16 The Slovak Republic, intervener at first instance in support of the form of order sought by Slovenská pošta, claims that the Court should:

– uphold Slovenská pošta’s appeal; and

– order the Commission to pay the costs.

The appeal

17 Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

18 It is appropriate to apply that provision in the context of the present appeal.

19 The appellant advances two grounds in support of its appeal, each ground being in two parts. The first ground of appeal alleges errors of law and infringements of the rules on the burden of proof and taking of evidence, which it claims led the General Court to conclude, wrongly, that the Slovak Republic had infringed Article 86(1) EC, read in conjunction with Article 82 EC. The second ground of appeal alleges errors of law, infringements of the rules on the burden of proof and taking of evidence, and the alleged distortion of evidence by the General Court in reviewing the definition of the relevant market used by the Commission in the decision at issue.

20 It is appropriate to begin by examining the second part of the first ground of appeal.

The second part of the first ground of appeal

Arguments of the parties

21 By the second part of its first ground of appeal, Slovenská pošta challenges the General Court’s finding, in paragraph 350 of the judgment under appeal, that the Commission did not err in finding, in recitals 150 to 155 of the decision at issue, that the delivery of hybrid mail was accompanied by specific additional services, in particular track and trace, for which there was a demand which Slovenská pošta was not in a position to satisfy, which implied that the extension of its exclusive rights to the service for delivering hybrid mail had deprived users of those specific services. In essence, the appellant puts forward three separate arguments.

22 In the first place, it refers to paragraph 348 of the judgment under appeal, in which the General Court held, in particular, that the appellant had not adduced evidence to prove that it offered a track-and-trace service such as that described by the Commission in the decision at issue, nor even that it offered a similar type of service in the context of hybrid mail, and that, in addition, it had failed to substantiate its assertions that it was capable of offering that service.

23 The appellant criticises the General Court for an erroneous allocation of the burden of proof, as it was clearly for the Commission to prove the alleged infringement of Article 86(1) EC, read in conjunction with Article 82 EC.

24 In the second place, the appellant claims that an undertaking is manifestly not in a position to satisfy the demand prevailing on the market for certain activities, within the meaning of paragraph 31 of the judgment of 23 April 1991 in Höfner and Elser (C‑41/90, EU:C:1991:161), where it is structurally unable to meet that demand. Since there are, according to the appellant, no structural reasons preventing it from satisfying the demand prevailing on the market for hybrid mail track-and-trace services, it was wrongly, and as a result of an error of law, that the General Court upheld the Commission’s finding in the decision at issue that the appellant was manifestly not in a position to satisfy that demand.

25 In the third place, the appellant takes issue with paragraph 336 of the judgment under appeal, according to which the Commission did not err in finding, in the decision at issue, that there was a market demand for additional services linked to delivery of postal items, such as, at the very least, the track-and-trace service. In its view, that conclusion is based on a single call for tenders, that of Slovak Telekom a.s. However, it is contrary to basic principles of evidentiary standards to accept that one single piece of evidence would be capable of proving a relevant fact to the requisite legal standard. According to the appellant, the General Court should have found that, in the absence of corroborating proof, the Slovak Telekom call for tenders did not constitute sufficiently consistent evidence, and that therefore the Commission had not met the required standard of proof.

26 In its reply, the appellant makes clear that the second part of the first ground of appeal is intended not to secure a new assessment of the evidence by the Court of Justice but a declaration as to the errors of law made by the General Court in its assessment of the evidence.

27 The Commission contends that the second part of the first ground of appeal is inadmissible, being, in its view, intended to induce the Court to re-examine the factual findings of the General Court. In any event, according to the Commission, the first argument is based on a misreading of the judgment under appeal, while the second is based on a misinterpretation of the Court’s case-law. As to the third argument, the Commission states that there is no principle in EU law that prohibits reliance being placed on a single piece of evidence. It states that, in any event, the finding contested by the appellant is not based on just one piece of evidence.

28 The Slovak Government supports the arguments put forward by Slovenská pošta in connection with the second part of the first ground of appeal and submits that it must be upheld. It maintains that the General Court erred in law in finding that the Commission had established, to the requisite legal standard, that Slovenská pošta was manifestly not in a position to meet demand for the hybrid mail service, which led to an infringement of Article 86(1) EC, read in conjunction with Article 82 EC. In its submission, the General Court failed to correctly assess the evidence relating to the existence of a demand and to the alleged manifest inability of Slovenská pošta to meet that demand.

Findings of the Court

30 The jurisdiction of the Court of Justice to review the findings of fact by the General Court therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed (judgment of 19 December 2013 in Siemens and Others v Commission , C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 39 and the case-law cited).

31 By the first and third arguments, the appellant complains that the General Court essentially infringed the rules relating to the burden of proof and the taking of evidence. It follows from this that, in accordance with the case-law cited in the preceding paragraph, those arguments are admissible. The same applies to the second argument, by which the appellant complains that the General Court essentially erred in law in applying the judgment of 23 April 1991 in Höfner and Elser (C‑41/90, EU:C:1991:161).

32 However, as regards the substance, none of those arguments can succeed.

33 The first argument must be rejected as manifestly unfounded, being based as it is on a reading of paragraph 348 of the judgment under appeal that is erroneous and which takes it out of context. In that regard, paragraph 348 of the judgment under appeal must be understood not as a reversal of the burden of proof to the detriment of Slovenská pošta, but simply as a statement of the outcome of the General Court’s examination of the various arguments of Slovenská pošta in paragraphs 339 to 347 of the judgment under appeal, an examination which led the General Court to conclude that none of those arguments was well founded. A reading of the whole of paragraphs 337 to 348 of the judgment under appeal shows that the General Court first summarised, in paragraph 338 of that judgment, the relevant findings of the Commission in the decision at issue and the evidence on which they were based, and then, in paragraphs 339 to 347 of that judgment, analysed in detail and rejected the various arguments put to it by Slovenská pošta in order to challenge those findings.

34 As regards the second argument, it must be borne in mind that, according to the settled case-law of the Court, the mere creation of a dominant position through the grant of exclusive rights within the meaning of Article 86(1) EC is not in itself incompatible with Article 82 EC. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (judgments of 23 April 1991 in Höfner and Elser , C‑41/90, EU:C:1991:161, paragraph 29, and of 3 March 2011 in AG2R Prévoyance , C‑437/09, EU:C:2011:112, paragraph 68).

35 Such an abusive practice contrary to Article 86(1) EC exists where, in particular, a Member State grants to an undertaking an exclusive right to carry on certain activities and creates a situation in which that undertaking is manifestly not in a position to satisfy the demand prevailing on the market for activities of that kind (judgments of 23 April 1991 in Höfner and Elser , C‑41/90, EU:C:1991:161, paragraph 31, and of 3 March 2011 in AG2R Prévoyance , C‑437/09, EU:C:2011:112, paragraph 69).

36 Contrary to what is alleged by the appellant, that case-law covers all cases of manifest inability to satisfy demand for certain activities, and not only those where the inability is ‘structural’.

37 The General Court did not, therefore, err in law in finding that it was incumbent upon it, inter alia, to examine whether, in the context of the distribution of hybrid mail, the appellant was manifestly not in a position to satisfy demand for track-and-trace services, without limiting that examination only to an assumption of structural inability. The question whether the appellant was manifestly not in a position to satisfy that demand falls within the scope of the appraisal of the facts which, in accordance with the case-law cited in paragraph 29 of the present order, falls outside the jurisdiction of the Court as the court of appeal.

38 The second argument is, therefore, manifestly unfounded.

40 It follows from this that the second part of the first ground of appeal must be rejected as being manifestly unfounded.

The first part of the first ground of appeal and the second ground of appeal

41 By the first part of the first ground of appeal, the appellant claims that the General Court erred in law in its application to the present case of the case-law according to which, where the extension of the dominant position of an undertaking to which the State has granted special or exclusive rights results from a State measure, such a measure constitutes an infringement of Article 86 EC, read in conjunction with Article 82 EC (judgment of 25 October 2001 in Ambulanz Glöckner , C‑475/99, EU:C:2001:577, paragraph 40 and the case-law cited). In essence, the appellant submits that that case-law relates only to cases in which, by means of the measures it adopts, the State provides the undertaking concerned with a ‘tool’ enabling it to extend its dominant position into a neighbouring market. It would not, however, be applicable in a case such as this, in which it is the State itself which, through the creation of a new monopoly, reserves the neighbouring market to an undertaking in a dominant position.

42 By its second ground of appeal, the appellant challenges the Commission’s definition of the relevant market, as approved in the judgment under appeal. By the first part of the second ground of appeal, the appellant complains that the General Court, in essence, erred in law by failing to analyse the interchangeability of the hybrid mail services and ordinary mail services. By the second part of the second ground of appeal, the appellant invokes the General Court’s distortion of two documents which the General Court analysed when examining the question whether the Commission’s definition of the relevant market was well founded.

43 In that regard, it must be borne in mind that, as is apparent from paragraph 10 of the present order, the Commission’s conclusion in the decision at issue that the Slovak Republic had infringed Article 86(1) EC, read in conjunction with Article 82 EC, in reserving to the appellant a monopoly over the delivery of hybrid mail was based on two separate grounds relating, on the one hand, to the extension of the monopoly into a neighbouring market and, on the other, to the limitation of the service.

44 It must be held that neither the first part of the first ground of appeal nor the first or second parts of the second ground of appeal are liable to affect the General Court’s confirmation of the legality of the ground for the decision at issue that relates to the limitation of the service.

45 The first part of the first ground of appeal relates exclusively to the extension of the monopoly into a neighbouring market. As regards the second ground of appeal, both of its two parts relate to the definition of the relevant market used by the Commission, particularly the question whether hybrid mail constitutes a separate market. That issue is not relevant to the assessment of the ground of the decision at issue relating to the limitation of the service. Such a limitation constitutes an abuse of a dominant position even if the services which the undertaking in question is manifestly not in a position to offer did not fall within a separate market.

48 Consequently, in accordance with Article 181 of the Rules of Procedure, the appeal must be dismissed.

Costs

49 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the appellant and the latter has been unsuccessful, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission. The Slovak Republic shall bear its own costs, in accordance with the second sentence of Article 184(4) of the Rules of Procedure.

On those grounds, the Court (Eighth Chamber) hereby orders:

1. The appeal is dismissed.

2. Slovenská pošta a.s. shall bear its own costs and pay those incurred by the European Commission.

3. The Slovak Republic shall bear its own costs.

[Signatures]

* Language of the case: English.