Case T‑463/14

Österreichische Post AG

v

European Commission

‛Directive 2004/17/EC — Procurement procedures in the water, energy, transport and postal services sectors — Implementing decision exempting certain services in the postal sector in Austria from the application of Directive 2004/17 — Article 30 of Directive 2004/17 — Duty to state reasons — Manifest error of assessment’

Summary — Judgment of the General Court (Fifth Chamber), 27 April 2016

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision exempting certain services of the postal sector of a Member State from the application of Directive 2004/17

   (Art. 296, second para., TFEU; European Parliament and Council Directive 2004/17, Art. 30; Commission Decision 2014/184)

2. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Scope — Contracts for providing a service not directly exposed to competition in the Member State concerned — Not included — Determination of the degree of exposure to competition — Criteria

   (Arts 47(2) EC, 55 EC and 95 EC; Arts 101 TFEU and 102 TFEU; Council Regulation No 139/2004; European Parliament and Council Directive 2004/17, second, third, ninth and fortieth recitals and Art. 30; Commission Decisions 2005/15, second recital, and 2014/184, eighth recital)

3. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Scope — Contracts for providing a service not directly exposed to competition in the Member State concerned — Not included — Delimitation of the relevant market — Discretion of the Commission — Judicial review — Limits

   (European Parliament and Council Directive 2004/17, Art. 30(1))

4. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Scope — Contracts for providing a service not directly exposed to competition in the Member State concerned — Not included — Burden of proof — Commission not obliged to carry out studies and analyses concerning the delimitation of the relevant market

   (Council Regulations No 1/2003 and No 139/2004; European Parliament and Council Directive 2004/17, Art. 30)

5. Actions for annulment — Jurisdiction of the EU judicature — Substitution of an institution’s grounds for a decision — Not permissible

   (Arts 263 TFEU and 264 TFEU)

6. Judicial proceedings — Measures of organisation of procedure — Measures of inquiry — Discretion of the EU judicature — Scope

   (Rules of Procedure of the General Court (2015), Art. 92(1))

7. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Scope — Contracts for providing a service not directly exposed to competition in the Member State concerned — Not included — Commission decision refusing to exempt certain postal services of a Member State from the application of the directive and not regarding postal and electronic delivery methods as interchangeable — Lawfulness

   (Art. 14 TFEU; European Parliament and Council Directives 97/67, 2004/17, Art. 30, and 2008/6, third recital; Council Directive 2010/45, eighth recital; Commission Decision 2014/184)

8. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Scope — Contracts for providing a service not directly exposed to competition in the Member State concerned — Not included — Delimitation of the relevant market — Criteria

   (European Parliament and Council Directive 2004/17, Art. 30; Commission Decision 2005/15, Annex I, section 3)

9. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure

   (Art. 263 TFEU)

10. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Pleas based on matter which have come to light in the course of the procedure

    (Rules of Procedure of the General Court (1991), Art. 48(2))

11. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Plea distinct from that of the lawfulness of the contested decision

    (Arts 263 TFEU and 296 TFEU)

12. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Scope — Contracts for providing a service not directly exposed to competition in the Member State concerned — Not included — Commission decision — Assessment of the legality of that decision by reference to the information available at the time it was adopted

    (European Parliament and Council Directive 2004/17, Art. 30)

13. Judicial proceedings — Production of evidence — Time-limit — Evidence lodged out of time — Conditions

    (Rules of Procedure of the General Court (1991), Arts 44(1)(e), 46(1), and 48(1))

14. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility

    (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court (1991), Art. 44(1)(c))

15. Fundamental rights — Charter of Fundamental Rights of the European Union — Right to sound administration — Right to be heard — Scope

    (Art. 6 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(a))

1.  See the text of the decision.

   (see paras 20, 46, 50, 83, 197)

2.  In the matter of the award of public contracts, when determining whether an activity is directly exposed to competition and thus falls within the scope of Directive 2004/17 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, the criteria and methodology to be used to assess direct exposure to competition under Article 30 of that directive are not necessarily identical to those used to perform an assessment under Article 101 TFEU and 102 TFEU or Regulation No 139/2004 on the control of concentrations between undertakings.

   Whilst it is true that, in accordance with Article 30(2) of Directive 2004/17, the question of whether an activity is directly exposed to competition is to be decided on the basis of criteria that are in conformity with the FEU Treaty provisions on competition, the wording of that provision does not require that those criteria should be exactly the same as those referred to in the provisions of EU competition law. Moreover, Directive 2004/17 does not form a part of EU competition law; its legal basis is Article 47(2) EC and Articles 55 EC and 95 EC. The principal objective of the EU rules on public procurement is the free movement of services and openness to undistorted competition in all the Member States, as indeed is clear from recitals 2, 3 and 9 of Directive 2004/17. In that regard, that directive is intended to open up the contracts to which it applies to EU competition by promoting the widest possible expression of interest among contractors in the Member States. Thus, in recital 8 of Decision 2014/184, exempting certain services of the postal sector, in Austria, from the application of Directive 2004/17, reference is rightly made to the aim pursued by Directive 2004/17 in order to determine what level of effective competition must be attained to support a finding, under Article 30 of the directive, that a given activity is directly exposed to competition. Furthermore, there is no reference in Articles 101 TFEU and 102 TFEU or in Regulation No 139/2004 to the concept of activities that are ‘directly exposed to competition’ which appears in Article 30(2) of Directive 2004/17.

   Moreover, according to recital 2 of Decision 2005/15 on the detailed rules for applying the procedure under Article 30 of Directive 2004/17, the conditions laid down in Article 30(1) of Directive 2004/17 are to be evaluated solely for the purposes of that directive and must be without prejudice to the application of the rules on competition. Moreover, it is clear from recital 40 of that directive that Article 30 thereof should provide legal certainty for the entities concerned, as well as an appropriate decision-making process, ensuring, within short time-limits, the uniform application of EU law in this area. These considerations confirm that, in examining a request made pursuant to Article 30, the Commission is not required to apply the criteria and methods laid down in the FEU Treaty provisions on competition as such.

   (see paras 26, 28, 29)

3.  See the text of the decision.

   (see paras 38, 39, 176)

4.  Under the procedure laid down in Article 30 of Directive 2004/17, the burden of proving that the conditions laid down in that provision are fulfilled rests on the applicant and the Member State concerned, the Commission having only limited powers in comparison with the very extensive investigatory powers that are conferred on it in the sphere of EU competition law by Regulation No 1/2003 and by Regulation No 139/2004 on the control of concentrations between undertakings. Moreover, the Commission is required to adopt a final decision within the period specified in Article 30(6) of that directive if it considers that the conditions laid down in Article 30(1) of the directive are not fulfilled.

   The Commission is therefore not obliged to carry out its own studies or analyses concerning the delimitation of the relevant market. On the contrary, it is for the applicant to provide sufficient information to define the relevant market.

   (see paras 41, 89, 125, 204)

5.  See the text of the decision.

   (see para. 44)

6.  See the text of the decision.

   (see para. 44)

7.  Admittedly, Council Directive 2010/45/EU of 13 July 2010 amending Directive 2006/112/EC on the common system of value added tax as regards the rules on invoicing introduced rules under which, as is clear from recital 8 of Directive 2010/45, paper invoices and electronic invoices are, in so far as concerns value added tax (VAT) requirements, to be treated equally. Nevertheless, in the case of a Commission decision finding that the condition of direct exposure to competition laid down by Article 30 of Directive 2004/17 is not fulfilled in the territory of a Member State, that fact does not demonstrate that the Commission made a manifest error of assessment by taking the view that postal and electronic delivery methods were not interchangeable. Where electronic invoicing has become mandatory de jure in the Member State concerned in relations between undertakings and the government relations, the substitutability issue does not arise.

   Moreover, from a regulatory point of view, postal services, and not electronic services, are recognised as being services of general economic interest, within the meaning of Article 14 TFEU, as is clear from recital 3 of Directive 2008/6 amending Directive 97/67 with regard to the full accomplishment of the internal market in Community postal services. Under Article 3 of Directive 97/67 on common rules for the development of the internal market in Community postal services and the improvement of quality of service, it is the provision of postal services that is classified as a universal service. It cannot therefore be concluded that, as a general rule, paper invoices and electronic invoices are treated in the same way from a regulatory point of view. In that regard, the fact that Directive 2008/6 treats addressed advertising mail as an item of correspondence from a regulatory point of view has no bearing on the correct definition of the relevant market in the context of the examination carried out under Article 30 of Directive 2004/17.

   (see paras 53, 54, 168)

8.  The concept of the relevant market within the meaning of Decision 2005/15 implies that there can be effective competition between the products which form part of it, which presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market. Interchangeability or substitutability is not assessed solely in relation to the objective characteristics of the products or services at issue; competitive conditions and the structure of supply and demand on the market must also be taken into consideration.

   (see para. 57)

9.  See the text of the decision.

   (see paras 64, 146)

10.  See the text of the decision.

    (see para. 127)

11.  See the text of the decision.

    (see paras 132, 138)

12.  The lawfulness of a Commission decision laid down in Article 30 of Directive 2004/17, coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, must be assessed in the light of the information available to the Commission when it adopted the decision.

    (see para. 142)

13.  See the text of the decision.

    (see paras 146, 190)

14.  See the text of the decision.

    (see paras 151, 170, 200)

15.  See the text of the decision.

    (see para. 188)