European Union: European Commission Intervenes In Belgian Bpost Case To Suggest A Preliminary Reference

On 23 August 2017, it was made public that the European Commission will request the Belgian Supreme Court ("Cour de cassation"/ "Hof van cassatie") to lodge with the Court of Justice of the European Union ("ECJ") a request for a preliminary ruling on the issue of whether distinct fines imposed by both a postal regulatory authority and a competition authority for the same facts can amount to double jeopardy contrary to the "ne bis in idem" principle.

This is an interesting development in a long-standing legal battle between bpost, the Belgian incumbent postal company, and the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la concurrence) ("BCA") concerning the impact of bpost's quantitative rebate scheme on so-called "consolidators", i.e., intermediaries offering postal services such as preparing, processing and transporting mail to bpost's distribution points.

On 10 December 2012, further to a complaint filed by consolidators, the BCA imposed a fine of € 37.4 million on bpost for abusing its dominant position by applying a discriminatory rebate system. From January 2010 until July 2011, bpost applied a "model per sender" rebate system, which awarded rebates to large clients on the basis of the volume of the mail or the degree of preparation of the mail for further treatment. bpost's discount applied to both senders and consolidators but was calculated on the basis of the turnover generated by each sender individually. As a result, this rebate system did not allow consolidators to aggregate all the mail they processed for different senders. In practice, a sender which provided a large volume of mailings to bpost benefited from a higher rebate than that obtained by a consolidator which handed over an equivalent volume of mail on behalf of several senders. The BCA found that this system was discriminatory.

However, in July 2011, bpost had already been subjected to a € 2.3 million fine by the postal regulator, the Belgian Institute for Postal Services and Telecommunications ("BIPT"), when the BIPT decided that this rebate system was incompatible with postal regulations. The BCA reduced the amount of its own fine to take into account the prior fine imposed by the BIPT.

bpost appealed both decisions before the Brussels Court of Appeal. As regards the BIPT decision, the Court of Appeal requested the ECJ to issue a preliminary ruling on the case. In a judgment of 11 February 2015, the ECJ held that bpost's quantity discount scheme did not discriminate against consolidators. The difference in treatment between senders and consolidators would constitute a form of discrimination prohibited by Article 12 of Directive 97/67/EC on common rules for the development of the internal market of Community postal services and the improvement of quality of service only if: (i) senders and consolidators were in comparable situations on the postal distribution market; and (ii) there were no objective justifications for the difference in treatment. The ECJ found that senders and consolidators were not in comparable situations, since quantity discounts aim to increase the volume of mail handled by bpost in order to achieve economies of scale, which consolidators cannot do since they only consolidate mail, rather than sending it, and have thus no impact on actual volumes sent. Following this preliminary ruling, the Brussels Court of Appeal annulled the BIPT's decision on 10 March 2016.

Subsequently, the Brussels Court of Appeal also annulled the decision of the BCA, but for an entirely different reason: the Court of Appeal found that the decision infringed the "ne bis in idem" principle, pursuant to which one cannot be tried or punished for an infringement for which one has already been convicted or acquitted. The Court found that the BCA infringed this principle as the BIPT had already fined bpost for the same rebate scheme. Although the BIPT had based its reasoning on a different legal ground (the postal regulation and not competition law), the Court of Appeal found that the three conditions for the application of the "ne bis in idem" principle were satisfied: (i) both the BIPT's and the BCA's fines were of a criminal nature; (ii) both proceedings concerned the same facts (the rebate scheme); and (iii) the judgment of the Court of Appeal of 10 March 2016 had made the BIPT decision final. As a result, the Brussels Court of Appeal annulled the BCA's decision.

The BCA filed a further appeal against this latter judgment before the Belgian Supreme Court (appeal limited to points of law only). The BCA argues that the Brussels Court of Appeal did not properly assess whether the BCA's fine amounted to a breach of the "ne bis in idem" principle. It is in the context of these ongoing proceedings before the Supreme Court that the European Commission intends to request the Court to refer the case to the ECJ for a preliminary ruling, which would lead the highest European Court to review this case for the second time.

The impact of this preliminary ruling is expected to be significant as it will help shape the legal relationship between decisions adopted by antitrust authorities and regulatory bodies across the European Union.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions