1.

In Italy, private economic operators in the postal sector are required to defray the costs of the national regulatory authority (‘NRA’) without any public co-financing. That obligation falls on both express mail service providers and universal service providers.

2.

In this reference for a preliminary ruling, the Court is asked, in essence, whether the national legislation applied in the main proceedings is compatible with Directive 97/67/EC, as amended by Directive 2008/6/EC, ( 2 ) and with the principles of proportionality and non-discrimination.

3.

Article 9 provides:

‘1.   For services which fall outside the scope of the universal service, Member States may introduce general authorisations to the extent necessary to guarantee compliance with the essential requirements.

2.   For services which fall within the scope of the universal service, Member States may introduce authorisation procedures, including individual licences, to the extent necessary in order to guarantee compliance with the essential requirements and to ensure the provision of the universal service.

The granting of authorisations may:

…

…

Obligations and requirements referred to in the first indent and in Article 3 may only be imposed on designated universal service providers.

…

3.   The procedures, obligations and requirements referred to in paragraphs 1 and 2 shall be transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, made public in advance and based on objective criteria. …’

4.

Article 22 provides:

‘1.   Each Member State shall designate one or more national regulatory authorities for the postal sector that are legally separate from and operationally independent of the postal operators. …

…

2.   The national regulatory authorities shall have as a particular task ensuring compliance with the obligations arising from this Directive, in particular by establishing monitoring and regulatory procedures to ensure the provision of the universal service. They may also be charged with ensuring compliance with competition rules in the postal sector.

…’

5.

Directive 97/67 was transposed into Italian law by Legislative Decree No 261 of 22 July 1999, ( 3 ) Article 2(1) of which provided that ‘the regulatory authority for the postal sector shall be the Ministry of Communications’.

6.

Article 1 of Legislative Decree No 58 of 31 March 2011 ( 4 ) amended Article 2 of Legislative Decree No 261 of 22 July 1999 and made provision for the following:

7.

The activities and powers of the National Agency for regulating the Postal Sector were transferred to the Autorità per le garanzie nelle comunicazioni (Communications Regulatory Authority; ‘AGCOM’) ( 5 ) by Decree-Law No 201 of 6 December 2011. ( 6 ) However, the rules in force on the financing of that agency remained unchanged.

8.

Article 1(65) and (66) of Law No 266 of 23 December 2005 ( 7 ) provided:

9.

Changes in AGCOM’s funding arrangements were implemented by Article 65 of Decree-Law No 50 of 24 April 2017 ( 8 ) as follows:

‘1.   From 2017 onwards, the operating expenses of the Communications Regulatory Authority in respect of its tasks as national regulatory authority for the postal sector shall be met in full in accordance with the rules laid down in Article 1(65) and the second sentence of Article 1(66) of Law No 266 of 23 December 2005, on the basis of the earnings obtained by postal sector operators. The provisions of Article 2(6) to (21) and of Article 15(2-bis) of Legislative Decree No 261 of 22 July 1999 are repealed.’

10.

That amendment abolished the hybrid public-private system for financing the regulatory authority and brought the contributions of postal sector operators to AGCOM into line with the contributions of the other economic sectors under AGCOM’s supervision.

11.

In 2017 and 2018, AGCOM adopted decisions No 182/17/CONS, No 427/17/CONS and No 528/18/CONS (‘the decisions’) establishing the amount and terms of the contribution payable to it by private economic operators in the postal services sector for 2017, 2018 and 2019 respectively. Specifically, AGCOM set the contribution at 0.14% (of earnings recorded by each operator) for 2017 and 2018 and at 0.135% for 2019.

12.

The decisions:

13.

Those costs were calculated having regard not only to the activities directly related to the regulation of the postal services market, but also to the services common to the different areas within AGCOM’s remit, such as the use of buildings and secretariat activities. The indirect costs arising from common services were shared between the various markets regulated by AGCOM on a proportional basis.

14.

A number of private economic operators in the field of express mail, not included within the scope of the universal service, challenged the decisions before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy).

15.

In particular, they objected to:

16.

The Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) dismissed the actions on the ground, in essence, that:

17.

The applicants lodged an appeal against the first instance judgment before the Consiglio di Stato (Council of State, Italy), which has referred the following questions to the Court of Justice:

18.

The request for a preliminary ruling was received at the Court on 31 March 2022.

19.

Written observations were submitted by General Logistic System Enterprises Srl and General Logistic System Italy SpA, BRT SpA, Associazione Italiana Corrieri Aerei Internazionali (A.I.C.A.I.) and Others, the Belgian, Greek, Italian, Lithuanian, Norwegian and Portuguese Governments, and the European Commission.

20.

It was not considered necessary to hold a hearing.

21.

Directive 97/67, as amended by Directive 2008/6, allows Member States to make the grant of licences to postal operators subject, ‘where appropriate’, ‘to an obligation to make a financial contribution to the [NRA]’s operational costs’. ( 9 )

22.

Advocate General Mengozzi previously warned of the difficulties in interpreting Article 9(2) of Directive 97/67 because of its opaque wording. ( 10 ) Those warnings are borne out by this case.

23.

In dealing with the questions submitted by the Consiglio di Stato (Council of State), I consider it preferable to begin with the second question in order to determine what types of expenditure incurred by NRAs in the postal sector must be funded by that sector’s operators. ( 11 ) I will then examine whether a minimum level of financing of NRAs using public funds is mandatory under Directive 97/67. Lastly, I will explore whether all postal sector operators are required to make contributions on the basis of their earnings, or whether a distinction must be drawn between universal service providers and express mail providers.

24.

The referring court enquires whether the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, read in conjunction with Article 22 thereof, includes the following costs under the operational costs of NRAs financed by postal service providers:

25.

With respect to this category, the case-law of the Court seems to me to be conclusive: ‘as regards the specific obligation, under Article 9(2), second subparagraph, fourth indent, of Directive 97/67, to contribute to the financing of the regulatory authority responsible for the postal sector …, it should be noted that the activities for which national regulatory authorities are responsible relate to all postal services and not solely to the provision of postal services falling within the scope of the universal service’. ( 12 )

26.

In the manner in which it is framed, that obligation is consistent with the tasks of NRAs in the postal sector, which are charged with ensuring compliance with the obligations arising from Directive 97/67 and ensuring that the competition rules in that sector are observed. Those tasks thus benefit all postal operators, not just a particular category of such operators.

27.

The fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 must therefore be interpreted as meaning that all postal service providers may, in return for the benefits which they derive from the actions of NRAs, ‘be made subject to the obligation to contribute to the financing of the operations of those authorities’. ( 13 )

28.

The obligation covers, in short, the costs associated with the activities of NRAs relating to all postal services, both those excluded from and included in the scope of the universal service.

29.

The answer to the question whether the operational costs mentioned in the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 include the ‘costs for structures and cross-sector services’ (‘cross-sector services’) ( 14 ) of the NRA, mentioned by the referring court, seems to me to be less straightforward.

30.

Directive 97/67 does not define the concept of ‘operational costs’, the interpretation of which is disputed by the parties which participated in this preliminary ruling procedure.

31.

Recourse to the different language versions does not assist in providing a literal interpretation clarifying the provision. ( 15 ) It is therefore necessary, in accordance with the case-law of the Court, ( 16 ) to have regard to the systematic and purposive interpretation of that provision.

32.

Directive 97/67, on its own, also does not provide any indications enabling a systematic interpretation to be carried out which would shed further light on the meaning of ‘operational costs’. ( 17 )

33.

It is true, however, that other provisions of EU law relating to electronic communications (in particular, Directive 2002/21/EC ( 18 ) and Directive 2002/20/EC, ( 19 ) or their predecessors) could provide, from a systematic point of view, useful guidance for this reference for a preliminary ruling.

34.

That would be the case if those other provisions, ( 20 ) already interpreted by the Court, had introduced similar concepts which could be extrapolated to the postal sector. ( 21 )

35.

In the field of electronic communications, as in the postal sector, provision is made requiring private operators to finance the relevant NRAs. To that end, Directive 2002/20 uses the concept of ‘administrative costs’ of NRAs. Like the postal sector authority, those authorities must be impartial and independent and must receive appropriate funding. ( 22 )

36.

The rules governing the financing of NRAs in the electronic communications sector specifically provide that operators’ contributions (the charges payable to maintain the NRA) are limited to covering certain actual administrative costs associated, in particular, with the management of authorisations or rights of use. ( 23 )

37.

Under Article 12(1) of Directive 2002/20, any administrative charges imposed on undertakings to finance the NRA’s activities must ‘in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2)’. ( 24 )

38.

Charges in the electronic communications sector cannot therefore be intended to cover even expenditure relating to tasks other than those listed in that provision, and in particular no other kinds of administrative costs incurred by the NRA. ( 25 )

39.

According to the Court, it follows from Article 12(2) of Directive 2002/20, read in conjunction with recital 30 thereof, that charges levied on electronic communications operators:

40.

The applicants in the main proceedings who submitted observations are in favour of transposing to the postal sector both the approach taken in the electronic communications sector by Article 12 of Directive 2002/20 and the case-law of the Court interpreting that provision.

41.

The proposed interpretation may, at first sight, be attractive, ( 28 ) but it is not appropriate. Despite the similarities in the requirements of independence for NRAs in the electronic communications sector and in the postal sector, the specific rules on their financing differ:

42.

A teleological interpretation of the fourth indent of the second subparagraph of Article 9(2) and Article 22 of Directive 97/67 leads to the view that those provisions enable NRAs in the postal sector to carry out their general tasks, namely to ensure compliance with the obligations arising from Directive 97/67. ( 29 ) To that end, they must receive appropriate funding covering the cross-sector costs of their functioning, without which they would simply be unable to take action.

43.

There is therefore no reason why cross-sector costs of NRAs in the postal sector (that is, common costs, not specifically earmarked for regulatory or supervisory activities), incurred in the performance of their institutional tasks, should not be considered to be operational costs. In that respect, I agree with the Commission’s position when it draws attention to the close link between that category of costs, preceding any other activity, and the NRA’s specific tasks.

44.

Finally, as the referring court rightly points out, if an NRA (such as AGCOM) performs tasks in areas other than the postal sector, the indirect costs are apportioned pro rata between all the sectors involved.

45.

The referring court enquires whether Directive 97/67 precludes national legislation which places the burden of financing the NRA in the postal sector solely on private service providers, to the exclusion of any form of public funding from the State budget.

46.

The answer to the first question referred is implicit in my suggested answer to the second, based on the fourth indent of the second subparagraph of Article 9(2) and Article 22 of Directive 97/67.

47.

If the operational costs of NRAs in the postal sector encompass both those arising directly from their regulatory and supervisory activities and those originating from their administrative and decision-making structures, private operators must, in principle, cover the NRA’s funding in full.

48.

The referring court’s question (can the burden of covering all the costs of NRAs be placed on private operators, excluding public funding?) can thus be answered in the affirmative.

49.

That answer is not affected by the fact that the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 uses the words ‘where appropriate’ when referring to the mechanism for financing NRAs. Such wording respects the possibility which Directive 97/67 affords to Member States of choosing different methods. ( 30 )

50.

It is therefore necessary to clarify the scope of the obligation ‘to make a financial contribution’ provided for in the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67.

51.

The wording of that expression could support a restrictive interpretation: operators are required only to make a financial contribution to cover part of the operational costs of NRAs, but not all of those costs.

52.

Since a literal interpretation is not decisive, recourse must again be had to a systematic and purposive interpretation of the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67.

53.

Assuming that the concept of operational costs includes all the costs incurred by NRAs in the postal sector in the performance of their tasks, it may be argued that Member States retain the possibility of choosing between the following:

54.

According to data provided by the Commission based on a recent study, ( 31 ) 15 Member States have chosen a wholly private system of financing, 6 prefer a public system and 5 have opted for a hybrid system (in 4 of those Member States, the lion’s share of the funding is provided by postal operators).

55.

In my view, Article 9 of Directive 97/67 neither requires a choice to be made between the different NRA financing models nor prevents such a choice being made. Paragraph 3 of that article merely requires that, once the independence and functioning of those authorities has been ensured, the elements of the system adopted should be ‘transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, made public in advance and based on objective criteria’.

56.

There is nothing, I repeat, to prevent a Member State from establishing a public system or a hybrid system: both are consistent with the purpose of Directive 97/67, which makes provision for the existence of NRAs that are independent of postal sector operators ( 32 ) in order to ensure the proper performance of their regulatory and supervisory duties. I consider the two systems to be compatible with the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, as they safeguard the independence of NRAs vis-à-vis postal sector operators and ensure their proper functioning.

57.

The same holds for the compatibility of strictly private systems of financing (such as the Italian system), provided that they ensure, first, the independence of the NRA and, second, that the NRA has, in practice, the necessary resources to perform its tasks. ( 33 )

58.

The truth of the matter is that the source of an NRA’s funding does not necessarily determine its independence. ( 34 ) What must be ensured is that the NRA has the necessary financial resources to be able to shield itself from any undue influence from the main market players and other public authorities. ( 35 )

59.

It is true that the possibility of an NRA’s activity being ‘obstructed’ is greater when its funding depends exclusively on the contributions of postal sector operators. The situation in Italy, as the referring court points out, ( 36 ) is a good example of this: according to AGCOM itself, since becoming the Italian NRA in the postal sector in 2012, it has failed to collect any contributions from private postal operators and has had to draw on financial resources from other sectors or from its reserves to perform its regulatory and supervisory tasks. AGCOM states that the impossibility of collecting contributions from operators will result in it being unable to perform its tasks in the Italian postal sector. ( 37 )

60.

However, that situation seems to be the result of a specific (and unforeseen) issue with the Italian system of financing, rather than a structural deficiency in the chosen model. The remedy may lie in strengthening the NRA’s own collection powers.

61.

In short, my view is that the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, read in conjunction with Article 22 thereof, gives Member States the freedom to choose the system for financing NRAs in the postal sector. Where a Member State opts for a strictly private system of financing, by means of charges imposed on postal operators, it must take the necessary measures to ensure, in any event, the independence and functioning of the NRA. Those measures must be sufficiently effective to prevent the NRA’s activities being obstructed.

62.

If, contrary to my proposed interpretation, the Court were to find that the concept of operational costs is confined to costs arising from the regulatory and supervisory activities of NRAs, their cross-sector costs would have to be borne by the State through public funding, to ensure the functioning of the NRA.

63.

The referring court enquires whether the principles of proportionality and non-discrimination and the fourth indent of the second subparagraph of Article 9(2) and Article 22 of Directive 97/67 permit a system for financing NRAs based on charges imposed on postal operators which:

64.

Directive 97/67 does not make provision for a specific method for calculating the charges applicable to postal operators in order to finance NRAs. As I have already made clear, Article 9(3) of that directive merely requires that calculation factors are established that are ‘transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, [which are] made public in advance and based on objective criteria’.

65.

Equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 38 )

66.

The Italian express mail operators argue that they should not be required to pay contributions to the NRA on the same terms as universal service operators because their situation is different. They submit that the NRA’s regulatory and supervisory activities in respect of universal service operators are much more extensive.

67.

I recall that, under Article 9(1) of Directive 97/67, Member States may make undertakings active in the postal sector subject to general authorisations for the provision of services falling outside the scope of the universal service. The first subparagraph of Article 9(2) of that directive provides that Member States may introduce authorisation procedures with regard to services falling within the scope of the universal service. ( 39 )

68.

In accordance with recital 18 of Directive 97/67, the essential difference between express mail services and the universal postal service lies in the value added (whatever form it takes) provided by express mail services and perceived by customers. These are specific services, dissociable from the service of general interest, which meet the special needs of economic operators and call for certain additional services not offered by the traditional postal service. ( 40 )

69.

The considerable differences between express mail services and universal postal services ( 41 ) do not, however, place operators of the respective services in different situations as regards their obligation to defray the costs of the NRA. Put another way, there is no reason why those differences should result in a higher or lower contribution to the financing of the NRA.

70.

The regulatory and supervisory activities of an NRA are carried out for the postal sector as a whole, both as regards the universal service and the express mail service. ( 42 )

71.

The method for calculating the charges in order to finance the NRA does not contain any discriminatory elements because it is based on a percentage factor which is the same for all postal operators and is applied to the earnings obtained by each of them. The Court has already confirmed that that method of calculation is non-discriminatory, objective and transparent in connection with similar charges imposed on operators to finance NRAs in other economic sectors. ( 43 )

72.

According to the Court, in order to assess the proportionality of national legislation, such as the Italian legislation transposing Directive 97/67 as regards qualifying certificates for the provision of postal services, ‘it is for the referring court to determine, when carrying out an overall assessment of all the relevant facts and legal issues, whether that legislation is appropriate for the purpose of ensuring the attainment of the objectives pursued and does not go beyond what is necessary to attain them’. ( 44 )

73.

As regards whether that legislation is appropriate ‘for the purpose of attaining the objective pursued, … national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner’. ( 45 )

74.

The objective of the Italian postal model (private financing) is to cover the operational costs of its NRA, in the manner outlined above. The obligation for all operators in the sector to pay the charges is an appropriate way of ensuring, in principle, ( 46 ) the performance of the NRA’s specific tasks.

75.

It should be recalled that, according to the documents before the Court, the charge imposed by Italian law is no higher than the charges imposed by other Member States on private operators to finance their NRAs in the postal sector.

76.

The matter at issue is whether the obligation for all postal operators to contribute on the basis of their earnings, without distinguishing between universal service operators and express mail operators, goes beyond what is necessary to ensure that the NRA has appropriate funding.

77.

In my view, the system in dispute does not infringe the principle of proportionality since the NRA’s actions are aimed at ensuring the liberalisation of the postal sector as a whole and are directed at all postal operators.

78.

The following two arguments strengthen my conviction.

79.

In the light of the foregoing, I propose that the Court of Justice give the following reply to the Consiglio di Stato (Council of State, Italy):

The fourth indent of the second subparagraph of Article 9(2) read in conjunction with Article 22 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, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services,

must be interpreted as meaning that: