On 11 February 2015, the Court of Justice of the European Union ("ECJ") ruled on a request for a preliminary ruling from the Brussels Court of Appeal relating to the interpretation of the principle of non-discrimination laid down in Article 12 of Directive 97/67/EC of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service ("Directive 97/67/EC") (Case C-340/13, bpost SA v. Institut belge des services postaux et des télécommunications (IBPT)).
The ECJ held that, in applying the system of quantity discounts per sender, as introduced in 2010 by bpost, the Belgian incumbent postal services provider does not discriminate against so-called consolidators. Consolidators are third party operators who act as intermediaries between the original customer who generated the mail and the postal services. They provide services to bulk mailers ("senders"), such as the preparation of mail before handing it over to the postal operator (sorting, printing, placing in envelopes, labelling, addressing and stamping) and the delivery of the mailings (collection from the senders, sorting and packaging of the mailings in mailbags, transport and delivery to sites designated by the postal operator).
The judgment was given in a dispute between bpost and the Belgian Institute for Postal Services and Telecommunications (Belgisch Instituut voor Postdiensten en Telecommunicatie/Institut belge des services postaux et des télécommunications – "BIPT") concerning a decision of BIPT of July 2011 to impose a fine of EUR 2.3 million on bpost for applying a discriminatory rebate system in its 2010 contractual tariffs. In 2012, the Belgian Competition Authority (Belgische Mededingingsautoriteit/Autorité belge de la Concurrence) imposed a fine of EUR 37.4 million on bpost for the same reason, arguing that bpost had abused its dominant position (see, VBB on Belgian Business Law, Volume 2011, No. 4, p. 2-3 and Volume 2012, No. 12, p. 3-4, available at www.vbb.com).
Contractual tariffs are special tariffs and are distinct from the standard tariff paid by the general public. They are laid down in an agreement between bpost and the clients concerned. This agreement can provide for rebates to clients which generate a certain turnover for bpost. The most usual contractual rebates are quantity discounts, which are granted according to the volume of mailings generated during a reference period, and operational discounts, which seek to reward specific routing operations and reflect the costs avoided by bpost.
Bpost's quantity discount was calculated on the basis of the volume of mailings supplied to bpost. While the discount applied to both senders (i.e., the end customers) and consolidators, it was calculated on the basis of the turnover generated by each sender individually. Accordingly, the rebate granted to consolidators was not calculated on the basis of the total volume of mailings coming from all senders to which they provided their services, but on the basis of the volume of mailings generated individually by each of their clients. In other words, a sender which provided a large volume of mailings to bpost benefited from a rebate higher than that obtained by a consolidator which handed over an equivalent volume of mailings resulting from the grouping of mail from a number of senders.
The ECJ noted that this difference in treatment between senders and consolidators would constitute a form of discrimination prohibited by Article 12 of Directive 97/67/EC only if: (i) the senders and consolidators are in comparable situations on the postal distribution market; and (ii) there is no objective justification for the difference in treatment.
Having regard to the objective pursued by the system of quantity discounts per sender, the ECJ held that senders and consolidators are not in comparable situations.
The ECJ noted that the system's objective is to stimulate demand in postal services. The quantity discounts aim to encourage senders to hand over more mail to bpost, which enables bpost to make economies of scale as its turnover increases.
The ECJ added that only senders are in a position to be encouraged, by the effect of that system, to increase the volume of their mail with bpost since they are responsible for originating postal items. Consolidators, in contrast, merely provide bpost with the mail which they have collected from different senders. This does not have the effect of increasing the overall volume of mail in bpost's favour.
Further, the ECJ noted that its findings are not contradicted by the judgment in Deutsche Post and Others (Joined cases C-287/06 to C-292/06, Deutsche Post AG and Others v. Bundesrepublik Deutschland, 6 March 2008), from which it follows that senders and consolidators could be in comparable situations as regards operational discounts. According to the ECJ, the same does not necessarily apply to quantity discounts, such as those at issue in the case at hand.
For these reasons, the ECJ concluded that the different treatment between senders and consolidators which follows from the application of bpost's system of quantity discounts per sender does not amount to a form of discrimination prohibited by Article 12 of Directive 97/67/EC.
In view of this ruling, the Brussels Court of Appeals is expected to annul, at least in part, the BIPT's fining decision of July 2011.
Moreover, the ECJ judgment is also likely to have an impact on the appeal that bpost filed with the Brussels Court of Appeal against the Belgian Competition Authority's fine of EUR 37.4 million for abuse of dominance. As the pleadings in this case have already taken place and the Brussels Court of Appeal took the case into consideration, bpost will possibly request the reopening of the procedure so as to allow the Court to consider the ECJ judgment.
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