Joined Cases T‑282/16 and T‑283/16

Inpost Paczkomaty sp. z o.o.

and

Inpost S.A.

v

European Commission

Judgment of the General Court (Third Chamber, Extended Composition), 19 March 2019

(State aid — Postal sector — Compensation for net cost arising from universal service obligations — Decision declaring the aid compatible with the internal market — Actions for annulment — Interest in bringing proceedings — Obligation to state reasons — Equal treatment — Proportionality — Right to property — Freedom to conduct a business)

1. Freedom to provide services — Postal services — Directive 97/67 — Designation of undertakings providing universal postal services — Obligation on the Member State to make use of public procurement procedures — None — Compliance with the principles of transparency, equal treatment and non-discrimination

   (European Parliament and Council Directives 97/67, Art. 7(2) and 2008/6, Recital 23)

   (see paragraphs 31-40)

2. State aid — Examination by the Commission — Compatibility of aid with the internal market — Discretion — Compliance with the coherence between the provisions governing State aid and other provisions of the Treaty — Postal services — Compliance with the obligations arising from Directive 97/67 — Obligation imposed only in relation to aspects of the aid inextricably linked to its purpose — Examination of the financing arrangements for a fund providing compensation for the cost of the universal service obligations assumed by an undertaking

   (Arts 106, 107 and 108 TFEU; European Parliament and Council Directive 97/67, Art. 7(1) and (3) to (5))

   (see paragraphs 63-71)

3. Freedom to provide services — Postal services — Directive 97/67 — Financing of the universal service — Fund providing compensation for the cost of the universal service obligations assumed by an undertaking — National legislation requiring the percentage determining the maximum amount of the contribution to that compensation fund to be uniformly applied to the universal service operator and providers of equivalent services — Comparability of situations — No discrimination — Whether permissible

   (European Parliament and Council Directive 97/67, Recital 27 and Art. 7(5); Commission Communication 2012/C 8/03, para. 52)

   (see paragraphs 84, 85, 87)

4. Freedom to provide services — Postal services — Directive 97/67 — Financing of universal services — Fund providing compensation for the cost of the universal service obligations assumed by an undertaking — National legislation imposing on postal operators, excluding express mail service providers, the obligation to contribute to the compensation fund — Discrimination — Review of whether the services are sufficiently interchangeable in view of their intrinsic characteristics — Non-comparability of situations — Whether permissible

   (European Parliament and Council Directive 97/67, Recital 27 and Art. 7(5); Commission Communication 2012/C 8/03, para. 52)

   (see paragraphs 91-102)

5. State aid — Prohibition — Exceptions — Undertakings entrusted with the operation of services of general economic interest — Decision of the Commission not to raise objections regarding aid intended to provide compensation for the cost of the universal service obligations assumed by an undertaking — Obligation to comply with the principle of proportionality — Limits — Judicial review — Assessment of the legality by reference to the information available at the time of adoption of the decision

   (Art. 106(2) TFEU)

   (see paragraphs 114-116)

6. Freedom to provide services — Postal services — Directive 97/67 — Financing of the universal service — Calculation of the net cost of the universal service obligations — Unfair burden — Assessment by the Member State — Right to compensation subject to the existence of accounting losses — Whether permissible

   (European Parliament and Council Directive 97/67, Art. 7(3))

   (see paragraphs 153-156)

Résumé

In the judgment in Inpost Paczkomaty and Inpost v Commission (T‑282/16 and T‑283/16), delivered on 19 March 2019, the General Court, in the context of two actions for annulment under Article 263 TFEU, rejected the applicants’ request for annulment of Commission Decision C (2015) 8236 final of 26 November 2015 (‘the contested decision’), by which the Commission decided not to raise any objections to the measure notified by the Polish authorities concerning the aid granted to Poczta Polska in the form of compensation for the net cost resulting from the latter’s performance of its universal postal service obligations for the period from 1 January 2013 to 31 December 2015.

According to Article 7(3)(b) of Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (‘the Postal Directive’), ( 1 ) where a Member State determines that the universal service obligations laid down in that directive are to bear a net cost and constitute an unfair financial burden on the universal service provider or universal service providers, it may introduce ‘a mechanism for the sharing of the net cost of the universal service obligations between providers of services and/or users’.

In the present case, Poczta Polska (‘PP’) is a Polish public limited company which was designated by the national law transposing the Postal Directive to assume, for a period of 3 years from 1 January 2013, the obligations of provider of universal postal services throughout Poland. In order to provide compensation for such obligations, the Polish authorities have set up a compensation fund, financed by contributions of postal operators providing universal services and/or equivalent universal services and, where appropriate, through the State budget, which is intended to finance the net cost of the universal service obligations.

In their actions against the contested decision, the applicants, who are postal operators required to contribute to that compensation fund, have raised seven pleas in law, the first five alleging infringements of Article 106(2) TFEU, in that the Commission’s Communication on the European Union framework for State aid in the form of public service compensation (2011) ( 2 ) and Article 7 of the Postal Directive were not respected, the sixth alleging infringement of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union and the last alleging breach of the obligation to state reasons.

All of the complaints raised by the applicants are rejected by the Court.

It rejects, in particular, the first plea in law, alleging that Poland designated PP as provider of universal postal services directly and exclusively by legislative means, without initiating a public procurement procedure, since, in accordance with Article 7(2) of the Postal Directive, procedures for the award of contracts are only one of the options that can be selected by the Member State concerned when deciding to subcontract the provision of universal services. The Court adds, however, that, in making that choice, the principles of transparency, equal treatment and non-discrimination must be duly respected, it being specified that the fact that PP was designated directly and exclusively by legislative means is not sufficient, in itself, to establish infringement of those principles.

The Court also rejects the four parts of the third plea, alleging infringement of paragraph 52 of the SGEI Framework and Article 7(1) and (3) to (5) of the Postal Directive, in that the rules of the compensation fund are discriminatory, disproportionate and were adopted on the basis of a procedure which is not transparent. In the present case, the amount of the contribution of the postal operators required to contribute to the fund was set at a uniform rate of 2% of their turnover, in so far as it exceeded PLN 1 million, arising during the reference year from universal service provision and from the provision of equivalent services, it being specified that the cost of PP’s universal service obligations gives rise to a right to compensation only if the universal service provision has in fact led to an accounting loss.

In that regard, the Court considers, first of all, that the third plea in law is not ineffective in that it alleges infringement of Article 7 of the Postal Directive. It points out, in that regard, that, when applying the procedure for the review of State aid, the Commission is required, in accordance with the general scheme of the Treaty, to ensure that provisions governing State aid are applied consistently with specific provisions other than those relating to State aid, and therefore to assess the compatibility of the aid in question with those specific provisions, it being specified that such an obligation is imposed only where the aspects of aid are so inextricably linked to the object of the aid that it is impossible to evaluate them separately.

In the present case, the Court finds that the funding arrangements necessary for the operation of the compensation fund are inextricably linked to the object of the aid itself, that is, to compensate PP for its universal service obligations, and observes that the Commission expressly considered that setting an appropriate (that is to say, a proportionate and non-discriminatory) level of contributions from postal operators was particularly important and that the Commission itself expressly referred to the compatibility of the measure at issue with the Postal Directive. However, it rejects as unfounded the four complaints raised by the applicants.

The Court thus considers that the uniform application of the percentage determining the maximum amount of the contribution to universal service providers and providers of equivalent services, set at 2% of the relevant turnover, does not breach the principle of non-discrimination. It points out, in that regard, in particular, that the two services have similar characteristics and must be regarded as being interchangeable from the perspective of consumers, in view of their intrinsic characteristics. Furthermore, it finds that the non-application to providers of express mail services of the obligation to make a contribution is not discriminatory, since they are not in a situation comparable to that of the applicants. The Court considers, first, that express mail services are distinguished from the universal postal service through the added value which they bring to each customer, value for which that user agrees to pay a higher sum. As they continue to distinguish themselves at the present time from the ‘traditional postal service’, defined as a service for the benefit of all users throughout the territory of a Member State, express mail services, on account of their specific features, cannot therefore be regarded as interchangeable with universal postal services.

The Court finds, moreover, that neither the percentage determining the maximum amount of the contribution, set at 2% of the relevant turnover, nor the income threshold of PLN 1 million is disproportionate. In that regard, the Court recalls that the review of proportionality constitutes one of the reviews which the Commission is required to carry out in the context of its assessment of the compatibility of State aid measures with Article 106(2) TFEU. That review of the proportionality of a measure for discharging an SGEI mission is limited to ascertaining whether the measure provided for is necessary in order for the SGEI mission in question to be capable of being performed in economically acceptable conditions or whether, on the other hand, the measure in question is manifestly inappropriate in view of the objective pursued. On the first point, it notes that, in the absence of detailed information relating to the profitability levels of the postal operators required to contribute to the compensation fund, the Commission was entitled to take into consideration PP’s profitability level in respect of equivalent services. It considers, in the present case, that the Commission could reasonably consider that other operators were capable of achieving a profitability level similar to that of PP through their greater effectiveness, efficiency and flexibility and, consequently, their greater capacity to focus on the most profitable parts of the market.

Lastly, the Court considers that the compensation scheme at issue can neither impede the applicants’ freedom to conduct a business nor impede their right to property in the production and commercialisation of those services, in particular their right to intellectual property, since it has not been established that it would impede the commercial exploitation by the operators of postal services, in Poland, of services equivalent to the universal service.

( 1 ) 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 (OJ 1998 L 15, p. 14).

( 2 ) OJ 2012 C 8, p. 15; ‘the SGEI Framework’.