Category Archives: Non-discrimination

Postal services – Quantity discounts – Application to intermediairies who consolidate postal items

Judgment

C-340/13

11.02.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

bpost SA

v

Institut belge des services postaux et des télécommunications (IBPT)

CJEU

2nd Ch.

 J.L. da Cruz Vilaça

/

Postal services

non-discrimination

Keywords

 Postal services — Directive 97/67/EC — Article 12 — Universal service provider — Quantity discounts — Application to intermediaries who consolidate postal items — Requirement of non‑discrimination

Significant points

1. The dispute at hand concerns an action for annulment brought by bpost against the decision of the IBPT imposing a fine on bpost for infringement of the principle of non-discrimination because of the application of the quantity discount per sender. In that decision, IBPT complained that bpost had denied the highest reductions on the quantities of mail supplied to the consolidators, despite the fact that they gave volumes of consolidated mail comparable to the volumes supplied by the largest senders. In consequence, that system discriminated against the consolidators.

  1. The CJEU quashed IBPT’s stand on the following grounds:

The objective of the quantity discounts is to stimulate demand in the area of postal services, which are currently faced with a growing choice of competing methods of sending, particularly that of electronic mail.

In this respect, when the consolidators hand on to bpost the mail which they have already collected from different senders, that does not have the effect of increasing the overall volume of mail in bpost’s favour. It follows therefrom that, except to the limited extent that those consolidators are themselves senders, their activity does not, of itself, contribute to the increase in the volume of mailings handed on to bpost.

Therefore, bulk mailers and consolidators are not in comparable situations as regards the objective pursued by the system of quantity discounts per sender since only bulk mailers are in a position to be encouraged, by the effect of that system, to increase the volume of their mail handed on to bpost and, accordingly, the turnover of that operator.

Consequently, the different treatment as between those two categories of clients which follows from the application of the system of quantity discounts per sender does not constitute discrimination prohibited under Article 12 of Directive 97/67.

In addition, the judgment in Deutsche Post and Others, when the Court held that Article 12 of Directive 97/67 precludes refusal to apply to consolidators of postal items from various senders the special tariffs which the national universal postal service provider grants to the senders themselves is not applicable to the present. Indeed, this case law did not involve quantity discounts, but operational discounts (that is to say discounts based on the costs actually avoided in relation with a given client) in respect with which consolidators and bulk mailers may be in the same situation.

Noteworthy

 This is a classic and orthodox application of the principle of non-discrimination, according to which, as a general rule, different situations must not be treated in the same way. For once, the application of this principle has actually benefitted a universal service provider against an overly zealous national regulator. Above these peculiarities of the case at hand, this principle means that a universal service provider in the postal sector may apply different conditions to users which are in objectively different situations.