Joined Cases C‑259/16 and C‑260/16

Confederazione Generale Italiana dei Trasporti e della Logistica (Confetra) and Others

v

Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico

(Requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio)

(Reference for a preliminary ruling — Postal services in the European Union — Directive 97/67/EC — Articles 2, 7 and 9 — Directive 2008/6/EC — Definition of ‘postal service provider’ — Haulage, freight-forwarding and express mail undertakings providing services involving the clearance, sorting, transport and distribution of postal items — Authorisation required for the provision of postal services to the public — Contribution to the costs of providing universal service)

Summary — Judgment of the Court (Fifth Chamber), 31 May 2018

1. Freedom to provide services—Postal services—Directive 97/67—Postal service provider—Concept—Haulage, freight-forwarding and express mail undertakings providing services involving the clearance, sorting, transport and distribution of postal items—Included—Limits—Business of such undertakings limited to the transport of postal items

   (European Parliament and Council Directive 97/67, Art. 2(1)(1a) and (6))

2. Freedom to provide services—Postal services—Directive 97/67—Conditions governing the provision of postal services and access to the network—Services which fall outside the scope of universal service—Grant of authorisations to ensure the essential requirements are complied with—National legislation requiring all haulage, freight-forwarding and express mail undertakings to be in possession of a general authorisation for the provision of postal services—Lawfulness—Conditions

   (European Parliament and Council Directive 97/67, Arts 2(19), and 9(1))

3. Freedom to provide services—Postal services—Directive 97/6—Financing of universal services—Compensation fund—National legislation under which holders of a general authorisation for the provision of postal services are required to contribute to the fund—Lawfulness—Condition—Postal services which may, from a user’s perspective, be regarded as services falling within the scope of the universal service, as they display inter-changeability to a sufficient degree with the universal service

   (European Parliament and Council Directive 97/67, Arts 7(4) and 9(2))

1.  Article 2(1), (1a) and (6) 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, is to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which haulage, freight-forwarding and express mail undertakings providing services involving the clearance, sorting, transport and distribution of postal items constitute, except where their business is limited to the transport of postal items, postal service providers within the meaning of Article 2(1a) of the directive.

   (see para. 41, operative part 1)

2.  Articles 2(19) and 9(1) of Directive 97/67, as amended by Directive 2008/6, are to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which requires all undertakings providing haulage, freight-forwarding and express mail services to hold a general authorisation for the provision of postal services, provided that such legislation is justified by one of the essential requirements set out in Article 2(19) of the directive and has due regard for the principle of proportionality, in that it is appropriate for the purpose of ensuring the attainment of the objective pursued and does not go beyond what is necessary to attain it, which is a matter for the referring court to verify.

   It should be recalled in that regard that Article 9(1) of Directive 97/67 provides that, 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.

   Before listing those requirements exhaustively, Article 2(19) of Directive 97/67 defines them as general non-economic reasons which can induce a Member State to impose conditions on the supply of postal services.

   As to whether the legislation at issue in the main proceedings is proportionate, 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.

   (see paras 43, 44, 49, 61, operative part 2)

3.  Articles 7(4) and 9(2) of Directive 97/67, as amended by Directive 2008/6, are to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which requires holders of a general authorisation for the provision of postal services to contribute to a compensation fund for universal service obligations, where, from a user’s perspective, those services may be regarded as falling within the scope of the universal service as they display inter-changeability to a sufficient degree with the universal service.

   In that regard, it should be noted, first, that it is clear from an analysis of the overall structure of the second subparagraph of Article 9(2) Directive 97/67 that the term ‘authorisations’, as used in that provision, applies both to the authorisations referred to in the first subparagraph of Article 9(2) and to the authorisations referred to in Article 9(1) of that directive (judgment of 16 November 2016, DHL Express (Austria), C‑2/15, EU:C:2016:880, paragraph 28).

   Second, in addition to the fact that the condition requiring a sufficient degree of inter-changeability referred to in recital 27 of Directive 2008/6 is repeated in Article 10(2) of Legislative Decree No 261/99, Article 11(1)(f) of the regulation on qualifying certificates expressly requires the holder of a general authorisation to ‘contribute to the funding of the costs of providing the universal service where the conditions laid down in recital 27 of Directive [2008/6] and Article 10(2) of [Legislative Decree 261/99] are met’, so that the possibility of imposing on such a holder an obligation to contribute to the compensation fund for universal service obligations is subject to the condition relating to the sufficient degree of inter-changeability.

   (see paras 73-75, operative part 3)