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.

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