Star Post (Postal services in the European Union - Concept of 'postal service provider affected by a decision of a national regulatory authority' - Judgment) [2024] EUECJ C-476/23 (24 October 2024)

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( Reference for a preliminary ruling - Postal services in the European Union - Directive 97/67/EC - Article 22(3) - Concept of ‘postal service provider affected by a decision of a national regulatory authority’ - Right of appeal )

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), made by decision of 14 July 2023, received at the Court on 25 July 2023, in the proceedings

composed of D. Gratsias (Rapporteur), President of the Chamber, I. Jarukaitis, President of the Fourth Chamber, and Z. Csehi, Judges,

having regard to the written procedure and further to the hearing on 28 May 2024,

- ‘STAR POST’ ЕOOD, by K. Boncheva, M. Dokova-Kostadinova and M. Ekimdzhiev, advokati,

- the Komisia za regulirane na saobshteniata, by T. Aleksandrova and I. Dimitrov,

- the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 22(3) 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 (OJ 1998 L 15, p. 14), as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3) (‘Directive 97/67, as amended’).

2 The request has been made in proceedings between ‘STAR POST’ EOOD, a company incorporated under Bulgarian law, and Komisia za regulirane na saobshteniata (Communications Regulatory Commission, Bulgaria) (‘the KRS’) concerning the latter’s decision determining the total net costs of the provision of the universal postal service by Balgarski Poshti (‘BP’) and finding that those costs constituted an unfair financial burden on BP.

‘Whereas, in order to ensure the proper functioning of the universal service and to ensure undistorted competition in the non-reserved sector, it is important to separate the functions of the regulator, on the one hand, and the operator, on the other; whereas no postal operator may be both judge and interested party; whereas it is for the Member State to define the statute of one or more national regulatory authorities [(“the NRAs”)], which may be chosen from public authorities or independent entities appointed for that purpose’.

1a. postal service provider: undertaking that provides one or more postal services;

13. universal service provider: the public or private postal service provider providing a universal postal service or parts thereof within a Member State, the identity of which has been notified to the [European] Commission in accordance with Article 4;

14. authorisations: any permission setting out rights and obligations specific to the postal sector and allowing undertakings to provide postal services and, where applicable, to establish and/or operate their networks for the provision of such services, in the form of a general authorisation or individual licence as defined below:

- “individual licence”: an authorisation which is granted by a [NRA] and which gives a postal service provider specific rights, or which subjects that undertaking’s operations to specific obligations supplementing the general authorisation where applicable, where the postal service provider is not entitled to exercise the rights concerned until it has received the decision by the [NRA];

17. user: any natural or legal person benefiting from postal service provision as a sender or an addressee;

18. [NRA]: the body or bodies, in each Member State, to which the Member State entrusts, inter alia, the regulatory functions falling within the scope of this Directive;

‘1. Member States shall not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. Member States may finance the provision of universal services in accordance with one or more of the means provided for in paragraphs 2, 3 and 4, or in accordance with any other means compatible with the Treaty.

3. Where a Member State determines that the universal service obligations, as provided for in this Directive, entail a net cost, calculated taking into account Annex I, and represent an unfair financial burden on the universal service provider(s), it may introduce:

(a) a mechanism to compensate the undertaking(s) concerned from public funds; or

(b) a mechanism for the sharing of the net cost of the universal service obligations between providers of services and/or users.

4. Where the net cost is shared in accordance with paragraph 3(b), Member States may establish a compensation fund which may be funded by service providers and/or users’ fees, and is administered for this purpose by a body independent of the beneficiary or beneficiaries. …

5. Member States shall ensure that the principles of transparency, non-discrimination and proportionality are respected in establishing the compensation fund and when fixing the level of the financial contributions referred to in paragraphs 3 and 4. Decisions taken in accordance with paragraphs 3 and 4 shall be based on objective and verifiable criteria and be made public.’

‘1. Member States shall take the measures necessary to ensure that the accounting of the universal service providers is conducted in accordance with the provisions of this Article.

2. The universal service provider(s) shall keep separate accounts within their internal accounting systems in order to clearly distinguish between each of the services and products which are part of the universal service and those which are not. This accounting separation shall be used as an input when Member States calculate the net cost of the universal service. Such internal accounting systems shall operate on the basis of consistently applied and objectively justifiable cost accounting principles.

3. The accounting systems referred to in paragraph 2 shall, without prejudice to paragraph 4, allocate costs in the following manner:

(a) costs which can be directly assigned to a particular service or product shall be so assigned;

(b) common costs, that is costs which cannot be directly assigned to a particular service or product, shall be allocated as follows:

(i) whenever possible, common costs shall be allocated on the basis of direct analysis of the origin of the costs themselves;

(ii) when direct analysis is not possible, common cost categories shall be allocated on the basis of an indirect linkage to another cost category or group of cost categories for which a direct assignment or allocation is possible; the indirect linkage shall be based on comparable cost structures;

(iii) when neither direct nor indirect measures of cost allocation can be found, the cost category shall be allocated on the basis of a general allocator computed by using the ratio of all expenses directly or indirectly assigned or allocated, on the one hand, to each of the universal services and, on the other hand, to the other services;

(iv) common costs, which are necessary for the provision of both universal services and non-universal services, shall be allocated appropriately; the same cost drivers must be applied to both universal services and non-universal services.

4. Other cost accounting systems may be applied only if they are compatible with paragraph 2 and have been approved by the [NRA]. The Commission shall be informed prior to their application.

5. [NRAs] shall ensure that compliance with one of the cost accounting systems described in paragraphs 3 or 4 is verified by a competent body which is independent of the universal service provider. Member States shall ensure that a statement concerning compliance is published periodically.

8. Where a given Member State has not used a financing mechanism for the provision of the universal service, as permitted under Article 7, and where the [NRA] is satisfied that none of the designated universal service providers in that Member State is in receipt of State assistance, hidden or otherwise, and that competition in the market is fully effective, the [NRA] may decide not to apply the requirements of this Article.

‘1. Each Member State shall designate one or more [NRAs] for the postal sector that are legally separate from and operationally independent of the postal operators. Member States that retain ownership or control of postal service providers shall ensure effective structural separation of the regulatory functions from activities associated with ownership or control.

2. The [NRAs] 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.

3. Member States shall ensure that effective mechanisms exist at national level under which any user or postal service provider affected by a decision of a [NRA] has the right to appeal against the decision to an appeal body which is independent of the parties involved. Pending the outcome of any such appeal, the decision of the [NRA] shall stand, unless the appeal body decides otherwise.’

8 Annex I to that directive, entitled ‘Guidance on calculating the net cost, if any, of universal service’, includes a Part B, entitled ‘Calculation of net cost’, which provides:

‘[NRAs] are to consider all means to ensure appropriate incentives for postal service providers (designated or not) to provide universal service obligations cost efficiently.

The net cost of universal service obligations is any cost related to and necessary for the operation of the universal service provision. The net cost of universal service obligations is to be calculated, as the difference between the net cost for a designated universal service provider of operating with the universal service obligations and the same postal service provider operating without the universal service obligations.

The calculation shall take into account all other relevant elements, including any intangible and market benefits which accrue to a postal service provider designated to provide universal service, the entitlement to a reasonable profit and incentives for cost efficiency.

… The responsibility for verifying the net cost lies with the [NRA]. The universal service provider(s) shall cooperate with the [NRA] to enable it to verify the net cost.’

‘(29) The principles of transparency, non-discrimination and proportionality, as presently provided for in Directive [97/67], should continue to be applied to any financing mechanism and any decision in this area should be based on transparent, objective and verifiable criteria. In particular, the net cost of the universal service should be calculated, under the supervision of the [NRA], as the difference between the net costs of a designated universal service provider operating under a universal service obligation and not operating under a universal service obligation. The calculation should take into account all other relevant elements, including any market benefits which accrue to a postal service provider designated to provide universal service, the entitlement to a reasonable profit and incentives for cost efficiency.

(41) In view of the transition towards a fully competitive market, and in order to prevent cross-subsidies from adversely affecting competition, it is appropriate to continue to require Member States to maintain the obligation on universal service providers of keeping separate and transparent accounts, subject to necessary adaptations.

This obligation should provide [NRAs], competition authorities and the Commission with the information necessary to adopt decisions related to the universal service and to monitor fair market conditions until competition becomes effective. …

Keeping separate and transparent accounts should provide Member States and their [NRAs] with accounting information of sufficient detail to:

- be used as an input when determining whether the universal service obligations imposed entail a net cost and represent an unfair financial burden on the universal service provider,

(49) Any party which is the subject of a decision by a [NRA] should have the right to appeal to a body that is independent of that authority. This body may be a court. This appeal procedure is without prejudice to the division of competences within national judicial systems and to the rights of legal entities or natural persons under national law. Pending the conclusion of these procedures there is a need to ensure the temporary validity of [NRAs’] decisions in order to guarantee legal certainty and market security.

(56) Since the objectives of this Directive, namely achieving an internal market of Community postal services, ensuring a common level of universal services for all users and setting harmonised principles for the regulation of postal services, cannot be sufficiently achieved by Member States and can therefore, by reason of the scale and effects, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. …’

10 Under Article 147 of the Administrativnoprotsesualen kodeks (Code of Administrative Procedure):

‘(1) Citizens and organisations whose rights, freedoms or legitimate interests have been violated or threatened by the administrative act or for whom it creates obligations have the right to challenge it.

11 Article 15 of the Zakon za poshtenskite uslugi (Law on postal services) states:

‘(1) The [KRS] shall regulate the provision of postal services in accordance with this law:

1. by ensuring the conditions under which the universal postal service is provided throughout the national territory;

11. by developing a method for calculating the net costs of providing the universal postal service and for determining the criteria for the existence of an unfair financial burden; this calculation method shall be adopted by the Council of Ministers on a proposal from the [KRS];

(2) Decisions of the [KRS] implementing this law are individual, regulatory or general administrative acts and may be appealed in accordance with the Code of Administrative Procedure to the competent administrative court.

‘The universal postal service is provided by a postal operator that is required by law to provide this service throughout the country using a postal network that it organises and manages.’

‘(1) The postal operator required to provide the universal postal service shall receive compensation from the State budget where the obligation to provide the universal postal service entails net costs and constitutes an unfair financial burden.

(2) The amount of the unfair financial burden of providing the universal postal service shall be determined by the [KRS] on the basis of the net costs calculated in accordance with the methodology set out in Article 15(1)(11).

14 Pursuant to Article 29a of the Law on postal services, at the request of the postal operator required to provide the universal service, the KRS rules on the amount of the net costs of providing the universal postal service and on the existence and amount of an unfair financial burden resulting from the provision of the universal postal service. It is clear from the order for reference that, as is apparent from Article 29a of that law, the KRS does not rule on the amount of compensation to be granted to the universal service provider in the event of a finding of unfair financial burden on the latter. The KRS submits its decision and the relevant information to the Deputy Prime Minister responsible, who in turn submits a proposal to the Minister for Finance to include in the State Budget Bill for the following year the amount of funds intended to compensate for that financial burden.

The dispute in the proceedings and the questions referred for a preliminary ruling

15 The applicant in the main proceedings is a Bulgarian company licensed to provide universal postal service services. It is apparent from the reference for a preliminary ruling that, by its Decision No 289 of 18 August 2022, the KRS revoked that licence and prohibited the applicant in the main proceedings, for a period of two years, from applying for a new individual licence for the provision of such services, from being granted such a licence and from acquiring shares or equity in the capital of a commercial company which is an authorised postal operator in the relevant field of activity.

16 The applicant in the main proceedings brought an action against that decision, which was dismissed at first instance. According to the information supplied to the Court by the applicant in the main proceedings and confirmed by the Republic of Bulgaria at the hearing before it, that dismissal and that decision were definitively annulled by a judgment of the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) of 29 January 2024.

17 BP, the incumbent postal operator in Bulgaria, has been entrusted with the obligation to provide the universal postal service since 2010 and for a period of 15 years.

18 Following a request for compensation, within the meaning of Article 29a of the Law on postal services, made by that operator, the KRS considered, by its Decision No 332 of 13 October 2022 (‘the contested decision’), at the end of an audit procedure, for which an independent auditor had been appointed, that the total net costs of the universal postal service provided by the said operator for the year 2021 amounted to 28 456 000 Bulgarian leva (BGN) (approximately EUR 14 500 000) and that those net costs constituted an unfair financial burden for the operator.

19 The applicant in the main proceedings brought an action against the contested decision before the Administrativen sad Sofia-grad (Administrative Court, Sofia City, Bulgaria), which, by order, was dismissed for lack of legal interest in bringing proceedings, on the ground that the applicant in the main proceedings is not the addressee of that decision, which does not create direct and immediate rights or obligations for it and does not affect its rights and legitimate interests.

20 The applicant in the main proceedings brought an action against that order before the Varhoven administrativen sad (Supreme Administrative Court), which is the referring court, arguing that it competes with BP both on the market for services falling within the scope of the universal postal service and on the market for non-universal postal services. It alleged that it had participated in several public procurement procedures and that the abnormally low tenders submitted by BP in that context had led it to suspect that BP had used the subsidies received by the State for the performance of the universal postal service obligation also for the purpose of financing other activities, thereby distorting competition, which would have a direct influence on its commercial activities on the market concerned. It lodged several appeals in support of its claim that BP had benefited from State aid. Its allegations were never examined, on the grounds that ‘the cost of the universal postal service [was] approved by the KRS each year in an administrative procedure initiated at the request of [BP] “in order to compensate for the disproportionate financial burden resulting from the provision of the universal postal service”’.

21 Before the referring court, the applicant in the main proceedings claims, in particular, that the calculation of the net cost of providing the universal postal service is not a mere accounting procedure but must enable the regulatory authority to carry out a full assessment of the relevant market. The relevant decision is one of the decisions referred to in Article 14 of Directive 97/67, as amended, read in conjunction with Article 22 thereof, and may therefore be challenged by ‘any user’ of the universal postal service and by ‘any postal service provider’ affected by it.

22 In support of its appeal, the applicant in the main proceedings relies both on its status as a ‘postal service provider’ and as a ‘user of the universal postal service’ and takes the view that the order of the Administrativen sad Sofia-grad (Administrative Court, Sofia City) challenged before the national court infringes Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 22 of Directive 97/67, as amended. It argues that undertakings competing with the universal service provider may challenge the NRA’s decisions if they infringe undistorted competition. In the present case, the KRS took a decision in a summary and automatic manner, basing itself, first, on a report drawn up by BP, which was never made public and, secondly, on the analysis of an independent auditor who, however, did not carry out any in-depth checks on BP’s accounts and was only partially made public.

23 For its part, the KRS points out that the mechanism provided for in Article 22 of Directive 97/67, as amended, has been implemented at national level by means of the appeal procedure provided for in the Code of Administrative Procedure and that the circle of persons entitled to bring an appeal against its decisions is not unlimited. The persons ‘affected’, within the meaning of that directive, would be those who bear the ‘material consequences’ of such decisions, namely the suspension or limitation of existing subjective rights, the creation of new legal obligations, the extension of existing obligations or the impossibility of exercising subjective rights. In the present case, annulment of the contested decision would not entail any change in the legal sphere of the applicant in the main proceedings, whereas acceptance of the latter’s argument would entail extreme legal uncertainty.

24 In the light of those arguments, the referring court considers that, in order to answer the question whether the applicant in the main proceedings has an interest in bringing proceedings against the contested decision, it is necessary to interpret the concept of ‘postal service provider affected by a decision of a [NRA]’ within the meaning of Article 22(3) of Directive 97/67, as amended. According to the referring court, there is no need to examine, in the context of the dispute in the main proceedings, the concept of ‘user’ of postal services within the meaning of that provision, in so far as the applicant in the main proceedings put forward only arguments relating to its activity as a provider of ‘services forming part of the universal postal service’ in competition with BP on the relevant market, without providing any factual evidence from which it could be inferred that it uses the universal postal service provided by BP. Accordingly, in the view of the referring court, any question referred for a preliminary ruling relating to the status of ‘user’ of postal services is hypothetical.

25 In those circumstances the Varhoven administrativen sad (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) How is the expression “postal service provider [affected] by a decision of a [NRA]”, and in particular the term “affected” within the meaning of Article 22(3) of Directive [97/67, as amended,] to be interpreted? Is the term “affected” to be interpreted as meaning that the decision of the [NRA] must be specifically made against the postal service provider? Is a company, which operates as a postal service provider within the meaning of Article 22(3) of [Directive 97/67, as amended,] “affected” where, in an action against [decisions adopted in] those procedures, that company puts forward arguments in connection with the cross-subsidisation of the universal postal service provider which were rejected by the court on account of decisions by the [NRA] which recognised the value of the net costs for the provision of the universal postal service by the universal postal service provider and which found that those costs to a certain extent constituted a disproportionate financial burden as a result of providing the universal postal service?

(2) Do Article 22(3) of [Directive 97/67, as amended,] and Article 47 of the [Charter] preclude a situation such as that at issue in the main proceedings, where a postal service provider who is in competition with the provider of the universal postal service cannot challenge before an independent body a decision by the [NRA] which recognised the value of the net costs for the provision of the universal postal service by the universal postal service provider and which found that those costs to a certain extent constituted a disproportionate financial burden as a result of providing the universal postal service?’

26 In its written observations, the Republic of Bulgaria challenges the admissibility of the first question referred for a preliminary ruling, alleging, in particular, that it is based on factual allegations which were relied on by the sole applicant in the main proceedings and which were not established before the referring court. That question is therefore hypothetical. The Republic of Bulgaria also questions the usefulness of the Court’s reply to that question in the context of the main proceedings.

27 In that regard, it should be noted that it is settled case-law that, where the questions referred in the context of a reference for a preliminary ruling under Article 267 TFEU concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. Such questions put by the national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (judgment of 6 June 2024, INGSTEEL, C-547/22, EU:C:2024:478, paragraphs 25 and 26 and the case-law cited).

28 In the present case, it cannot be disputed either that the first question referred for a preliminary ruling concerns the interpretation of Article 22(3) of Directive 97/67, as amended, or that that provision and, in particular, its personal scope are relevant to the resolution of the main proceedings.

29 Admittedly, by that question, the referring court seeks to ascertain whether the status of ‘postal service provider affected by a decision of a [NRA]’, within the meaning of Article 22(3) of that directive, which is claimed by the applicant in the main proceedings, can be determined on the basis of factual elements relating to administrative and judicial proceedings other than the proceedings in the main proceedings, elements which, according to the Republic of Bulgaria, were not established in the present case.

30 According to settled case-law, while it may be advantageous, depending on the circumstances, for the facts of a case to be established at the time of referral to the Court, that does not alter the fact that the national courts have the widest discretion to refer a case to the Court if they consider that a case before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part (see, to that effect, judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C-5/14, EU:C:2015:354, paragraph 31 and the case-law cited). Those courts are in particular free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgment of 14 November 2018, Memoria and Dall’Antonia, C-342/17, EU:C:2018:906, paragraph 33 and the case-law cited).

31 Accordingly, a request for a preliminary ruling cannot be declared inadmissible simply because it was submitted at an early stage of the main proceedings (judgment of 14 November 2018, Memoria and Dall’Antonia, C-342/17, EU:C:2018:906, paragraph 34).

33 As a preliminary point, it must be observed that, under the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (judgment of 20 April 2023, DIGI Communications, C-329/21, EU:C:2023:303, paragraph 23 and the case-law cited).

34 Thus, by its questions, which must be considered together, the referring court asks, in essence, whether Article 22(3) of Directive 97/67, as amended, read in the light of Article 47 of the Charter, is to be interpreted as precluding national legislation under which a provider of postal services competing with the universal postal service provider may not challenge before an independent body a decision of the NRA, to which it is not an addressee by which the latter calculates, pursuant to Article 7(3) of that directive, the amount of the net costs incurred by the universal postal service provider and finds that those costs constitute an unfair financial burden, within the meaning of that provision.

35 In order to answer that question, it is necessary to interpret the concept of ‘postal service provider affected by a decision of a [NRA]’ in Article 22(3) of Directive 97/67, as amended, which, in the absence of any express reference to the law of the Member States, must be regarded as an autonomous concept of EU law (see, to that effect, judgment of 21 February 2008, Tele2 Telecommunication, C-426/05, EU:C:2008:103, paragraph 26 and the case-law cited).

36 In that regard, the Republic of Bulgaria and the Commission agree that Article 22(3) of Directive 97/67, as amended, is worded in substantially the same terms as the first sentence of Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), now taken over in Article 31(1) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).

37 According to the first sentence of Article 4(1) of Directive 2002/21, ‘Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved’.

38 According to settled case-law, Article 4(1) of Directive 2002/21 is an offshoot of the principle of effective judicial protection safeguarded by Article 47 of the Charter, pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under EU law (judgment of 20 April 2023, DIGI Communications, C-329/21, EU:C:2023:303, paragraph 33 and the case-law cited).

39 The interpretation of that provision must therefore take account of the importance of that fundamental right as it results from the system implemented by the Charter as a whole. It must in particular be borne in mind that, while Article 52(1) of the Charter allows limitations to be placed on the exercise of the fundamental right in question, that provision requires that any limitation must respect the essential content of that fundamental right and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest (see, to that effect, judgment of 20 April 2023, DIGI Communications, C-329/21, EU:C:2023:303, paragraph 40 and the case-law cited).

40 In that context, the Court has held that, in the light of the NRAs’ obligations to promote competition in the electronic communications sector, a strict interpretation of Article 4(1) of Directive 2002/21, according to which that provision does not confer a right of appeal on persons other than those to whom the decisions of those authorities are addressed, would be difficult to reconcile with the general objectives and regulatory principles deriving, for those authorities, from that directive and, in particular, with the objective of promoting competition (judgment of 20 April 2023, DIGI Communications, C-329/21, EU:C:2023:303, paragraph 35 and the case-law cited).

41 Thus, according to settled case-law, Article 4(1) of Directive 2002/21 covers both the addressees of the NRA’s decision at issue and undertakings which provide electronic communications networks or services and which may be competitors of those addressees, provided that the NRA takes its decision in the context of a procedure designed to safeguard competition and that decision is likely to have an impact on the position of those undertakings on the market (see, to that effect, judgments of 22 January 2015, T-Mobile Austria, C-282/13, EU:C:2015:24, paragraph 39, and of 20 April 2023, DIGI Communications, C-329/21, EU:C:2023:303, paragraphs 32 and 36).

42 A strict interpretation of Article 22(3) of Directive 97/67, as amended, would, for reasons similar to those mentioned in paragraphs 38 to 40 of this judgment, be difficult to reconcile with the objectives pursued by that directive.

43 With regard, first, to the objectives of the European Union’s legislation in that area, it is apparent from recital 56 of Directive 2008/6 that the objectives pursued by that directive are to complete the internal market in postal services in the European Union, to ensure a common level of universal service for all users and to lay down harmonised principles for the regulation of that sector. However, recital 41 of that directive states that those objectives are pursued ‘in view of the transition towards a fully competitive market’.

44 As regards the tasks entrusted to the NRAs in the postal sector, it is clear from recital 39 of Directive 97/67, as amended, that the purpose of guaranteeing their independent status is to ensure ‘undistorted competition’. Moreover, in accordance with Article 22(2) of that directive, those authorities may also be responsible for ensuring compliance with the competition rules in the postal sector and, as is clear from Article 22(1), those authorities are required to consult and cooperate with the national authorities responsible for the application of competition law.

45 In those circumstances, there is no reason to interpret differently two substantially identically worded provisions of EU law, such as, first, Article 22(3) of Directive 97/67, as amended, and, secondly, Article 4(1) of Directive 2002/21, given, moreover, that those two directives govern related areas of EU law, confer similar powers on the NRAs designated for each of them and pursue similar objectives (see, by analogy, judgment of 17 September 2002, Concordia Bus Finland, C-513/99, EU:C:2002:495, paragraphs 90 and 91).

46 It must therefore be held that Article 22(3) of Directive 97/67, as amended, covers both the addressees of a decision such as the contested decision and the postal service providers competing with those addressees, in so far as that decision was adopted in the context of a procedure designed to ensure undistorted competition and is liable to have an impact on the position of those competing providers on the market.

47 Admittedly, recital 49 of Directive 2008/6 states that ‘any party which is the subject of a decision by a [NRA] should have the right to appeal to a body that is independent of that authority’. However, that recital merely refers to the possibility for anyone affected by a decision of an NRA to appeal against such a decision. The mere mention in such a recital of such a possibility in no way implies that such an appeal is excluded for other persons, such as undertakings competing with the addressee of that decision (see, by analogy, judgment of 21 February 2008, Tele2 Telecommunication, C-426/05, EU:C:2008:103, paragraph 45).

48 In that context and in order to provide the referring court with a helpful answer, it is necessary to examine, in the light of the considerations set out in paragraph 46 of this judgment, whether a decision of the NRA responsible for the postal sector such as the contested decision, that is to say, a decision which calculates the amount of the net costs borne by the universal postal service provider and finds that those costs constitute an unfair financial burden, constitutes a decision, first, adopted in the context of a procedure designed to ensure undistorted competition and, secondly, capable of affecting the market position of a competitor of that provider.

49 As a preliminary point, it should be noted that, in accordance with Article 7(3) of Directive 97/67, as amended, Member States are to determine whether the universal service obligations provided for by that directive give rise to a net cost, calculated taking into account the provisions of Annex I to that directive, and whether they constitute an unfair financial burden on the universal service provider(s). As is apparent from Articles 7, 14 and 22 of Directive 97/67, as amended, read in the light of recitals 29 and 41 of Directive 2008/6, the calculation of the net costs of the universal service is established under the supervision of the NRAs, which carry out their tasks entirely independently of both market players and State authorities (see, to that effect, judgment of 7 September 2023, Nexive Commerce and Others, C-226/22, EU:C:2023:637, paragraph 42). Furthermore, Part B of Annex I to Directive 97/67, as amended, states that verification of the calculation of the net cost is the responsibility of the NRA. Decisions taken by NRAs in the exercise of their powers under those provisions must therefore be considered to produce binding legal effects, the fact that those decisions may, where appropriate, form part of other procedures governed by national law for determining the amount of compensation to be granted to universal service providers being irrelevant in that regard.

50 That being so, as regards, in the first place, the question whether a decision such as the contested decision was adopted in the context of a procedure intended to ensure undistorted competition, it must be inferred from recital 41 of Directive 2008/6 that the principal objective of Article 14 of Directive 97/67, as amended, paragraph 2 of which requires the universal service provider(s) to keep transparent accounts distinguishing between services and products which are part of the universal service and those which are not, is to enable the Member States to verify the fairness of the conditions of the postal services market, both in relation to the universal service provider(s) and in relation to their competitors. That interpretation is, moreover, confirmed by Article 14(8) of that directive, which provides that the cost accounting requirements laid down in that article need not be applied by the NRA if it is satisfied that none of the universal service providers is receiving any form of disguised or other form of public support and that there is full competition in the market.

51 In so far as, in accordance with Article 14(2) of Directive 97/67, as amended, the NRA exercises its powers under Article 7(3) of that directive by taking into account the information provided in accordance with the requirements laid down in that article, it must be held that the decisions taken in the course of that exercise are aimed at safeguarding competition within the meaning of the case-law cited in paragraph 41 of this judgment.

52 As regards, in the second place, the question whether a decision such as the contested decision is likely to have an impact on the market position of the competitors of the addressee of such a decision, that condition must be deemed to be satisfied if the rights of the competitors in question are potentially affected by the NRA decision concerned by reason of, first, its content and, secondly, the activity pursued or envisaged by those competitors (see, by analogy, judgment of 20 April 2023, DIGI Communications, C-329/21, EU:C:2023:303, paragraph 50 and the case-law cited).

53 The requirement to adopt a decision such as the contested decision with a view to verifying the fairness of the conditions of the market concerned, referred to in paragraph 50 of this judgment, is based on the premiss that, if those conditions are not fair, the content of that decision is liable to have an effect on competition between the operators on that market. Such a decision is thus, by its very nature, capable of having an effect on the position of undertakings competing with the addressee of that decision, in so far as those undertakings carry on or intend to carry on an activity such as that referred to in the case-law cited in paragraph 52 of this judgment, which is a matter for the national court to determine.

54 It must be noted, as did the Republic of Bulgaria, that the purpose of the procedure for determining the net costs of providing the universal postal service and finding that those costs constitute an unfair burden on the provider of that service is to re-establish equality between that provider and the other market players not subject to the obligation to provide such a service. It follows from that finding that, if the decision taken at the end of such a procedure is based on erroneous or arbitrary factors, there is a risk that the position of that provider on the market concerned will be artificially strengthened, which would necessarily affect the position of its competitors on that market, irrespective of the mechanism for compensation of net costs chosen by the Member State concerned under Article 7 of Directive 97/67, as amended.

55 In the light of all the foregoing considerations, the answer to the questions referred is that Article 22(3) of Directive 97/67, as amended, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation under which a postal service provider competing with the universal postal service provider cannot challenge before an independent body a decision of the NRA, to which it is not an addressee, by which the latter calculates, pursuant to Article 7(3) of that directive, the amount of the net costs incurred by the universal postal service provider and finds that those costs constitute an unfair financial burden within the meaning of that provision.

56 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 22(3) 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, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding national legislation under which a postal service provider competing with the universal postal service provider cannot challenge before an independent body a decision of the national regulatory authority, to which it is not an addressee, by which the latter calculates, pursuant to Article 7(3) of Directive 97/67, as amended, the amount of the net costs incurred by the universal postal service provider and finds that those costs constitute an unfair financial burden within the meaning of that provision.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Star Post (Postal services in the European Union - Concept of 'postal service provider affected by a decision of a national regulatory authority' - Judgment) [2024] EUECJ C-476/23 (24 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C47623.html Cite as: ECLI:EU:C:2024:921, [2024] EUECJ C-476/23, EU:C:2024:921

Court of Justice of the European Communities (including Court of First Instance Decisions)