Sandd (Freedom to provide services - Postal services - Opinion) [2018] EUECJ C-256/17

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(Request for a preliminary ruling from the Rechtbank Rotterdam (Rotterdam District Court, Netherlands))

(Reference for a preliminary ruling - Freedom to provide services - Postal services - Universal service provider - Principles for tariffs and transparency of accounts - Obligation for the universal service provider to keep separate accounts for each of the services forming part of the universal service obligation - Cost-orientation of postal tariffs - Reasonable return)

1. What level or type of control over universal postal service providers is required by EU law? This is the essence of the questions referred by the Rechtbank Rotterdam (Rotterdam District Court, Netherlands).

2. A rather low level of control is advocated by the Netherlands Government. A high level of control is in contrast argued for by the Polish Government. The Spanish and Italian Governments seem to lie somewhere in between with their answers. All those Governments base their submissions on the wording of Directive 97/67/EC on common rules for the development of the internal market of Community postal services and the improvement of quality of service. (2)

4. It is my submission in this Opinion that the requirements imposed on Member States as a matter of EU law depend intrinsically on the form and scope of the universal service obligation chosen by each Member State. Moreover, in drafting Directive 97/67 and its various amendments, the EU legislature purposely left certain aspects concerning the provision of postal services unharmonised due to prevailing national specificities.

5. Directive 97/67 was passed with a view to gradually opening the market for postal services to competition. It has since been substantially amended on two occasions; by Directive 2002/39/EC (3) and by Directive 2008/6/EC. (4)

6. Article 3 of Directive 97/67 provides for the establishment of the universal postal service:

‘1. Member States shall ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users.

4. Each Member State shall adopt the measures necessary to ensure that the universal service includes the following minimum facilities:

– the clearance, sorting, transport and distribution of postal items up to two kilograms,

– the clearance, sorting, transport and distribution of postal packages up to 10 kilograms,

‘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.

2. Member States may ensure the provision of universal services by procuring such services in accordance with applicable public procurement rules and regulations, including, …, competitive dialogue or negotiated procedures with or without publication of a contract notice.

3. Where a Member State determines that the universal service obligations, as provided for in this Directive, entail a net cost, …, 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 … .

‘Member States shall take steps to ensure that the tariffs for each of the services forming part of the universal service comply with the following principles:

– prices shall be affordable and must be such that all users, independent of geographical location, and, in the light of specific national conditions, have access to the services provided. Member States may maintain or introduce the provision of a free postal service for the use of blind and partially-sighted persons,

– prices shall be cost-oriented and give incentives for an efficient universal service provision. Whenever necessary for reasons relating to the public interest, Member States may decide that a uniform tariff shall be applied, throughout their national territory and/or cross-border, to services provided at single piece tariff and to other postal items,

– the application of a uniform tariff shall not exclude the right of the universal service provider(s) to conclude individual agreements on prices with users,

– whenever universal service providers apply special tariffs, for example for services for businesses, bulk mailers or consolidators of mail from different users, they shall apply the principles of transparency and non-discrimination with regard both to the tariffs and to the associated conditions. ...’

‘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 national regulatory authority. The Commission shall be informed prior to their application.

5. National regulatory authorities 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.

7. On request, detailed accounting information arising from these systems shall be made available in confidence to the national regulatory authority and to the Commission.

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 national regulatory authority 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 national regulatory authority may decide not to apply the requirements of this Article.

‘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 national regulatory authority has the right to appeal against the decision to an appeal body which is independent of the parties involved. …’

11. Annex I to Directive 97/67 gives guidance on calculating the net cost, if any, of universal service. It provides, inter alia, that the calculation of net cost is to take into account ‘all … 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’.

‘(38) In a fully competitive environment it is important, both for the financial equilibrium of the universal service as well as for limiting market distortions, that the principle that prices reflect normal commercial conditions and costs is only departed from in order to protect public interests. ...

(40) In view of the national specificities involved in the regulation of the conditions under which the incumbent universal service provider must operate in a fully competitive environment, it is appropriate to leave Member States the freedom to decide how best to monitor cross-subsidies.

(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 national regulatory authorities, 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. Cooperation between national regulatory authorities in continuing to develop benchmarks and guidelines in this area should contribute to the harmonised application of these rules.

Keeping separate and transparent accounts should provide Member States and their national regulatory authorities 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,

– ensure that the tariffs applied to the universal service comply with the principles on tariffs as set out in this Directive,

– ensure compliance with the principles on terminal dues as set out in this Directive; and,

13. Article 22 of the Postwet 2009 (Netherlands Postal Act) requires the universal postal service provider to establish an accounting system distinguishing between costs and revenues of the universal postal service and costs and revenues of other activities. Such accounting information is, furthermore, to be made available to the Autoriteit Consument en Markt (the Netherlands Authority for Consumers and Markets; ‘the ACM’).

14. Article 23(1) obliges the universal postal service provider to provide the ACM with an annual report on the implementation of the universal postal service . That report must include both information on the quality of the services provided and an overview of the costs and revenues of the universal postal service.

15. Article 25(2) further provides that postal tariffs are to be based ‘on the actual costs of the universal postal service and a reasonable return’.

16. In accordance with Article 25(3), the regulatory authority is to calculate annually the tariff margin enjoyed by the universal postal service provider.

17. Article 25(5) states that the competent minister may, for any given year, by ministerial decree fix the tariff margin on the basis of an ad hoc decision where this is considered necessary in order to satisfy the requirement that tariffs be based on costs.

18. The Postregeling 2009 (Postal Regulation 2009) is a ministerial regulation in which detailed criteria for the cost accounting system of universal service providers in the postal sector are laid down.

19. Notably, the Postal Regulation 2009 provides standards for the cost accounting system and, in detail, the various types of costs that are to be attributed to the universal postal service (Articles 7 and 8). Furthermore, it provides how the tariff headroom relating to the universal service obligation is set (Articles 14 to 14d).

20. The applicant in the main proceedings, Sandd BV (‘Sandd’), and Koninklijke PostNL BV (‘PostNL’) are both active within the Netherlands commercial postal sector. PostNL is, furthermore, the designated provider of universal postal services in the Netherlands.

21. On 25 August 2015, PostNL submitted to the ACM the cost accounting system associated with its universal service obligation.

22. In a decision of 14 September 2015, the ACM, having determined that PostNL’s cost accounting system complied with Articles 7 to 7d of the Postal regulation 2009, set the tariff headroom for the universal services provided by PostNL, as set out in Articles 14 to 14e of the Postal Regulation 2009. Sandd raised an objection against the decision setting the basic tariff headroom, the supplementary tariff headroom and the total tariff headroom.

23. On 14 June 2016, the ACM declared the complaint by Sandd unfounded. The latter subsequently lodged an appeal against ACM’s decision before the referring court.

24. Sandd submitted in the main proceedings before the referring court that ACM had wrongly accepted the lack of accounting separation within PostNL’s cost accounting system between the various services within the universal postal service, as it was contrary to Article 14(2) of Directive 97/67. Sandd further submitted that, when determining the tariff headroom, ACM had wrongly offered PostNL the headroom of averaging the tariffs for the various services. That headroom should not have been offered as Article 12 of Directive 97/67 (as well as the relevant national provision) lays down the requirement that the various postal services must all be based on cost. Moreover, Sandd submitted that when determining the tariff headroom, ACM wrongly had taken as its starting point a fixed legal return of 11.11%, which was contrary to the premiss in Directive 97/67 that the universal service must be cost-oriented.

25. Entertaining doubts as to the correct interpretation of EU law, the Rechtbank Rotterdam (Rotterdam District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 14(2) of [Directive 97/67], as amended by [Directive 2008/6], be interpreted as meaning that it follows that national legislation must provide that universal service providers must, in their internal accounting, keep separate accounts for each of the services and products which are part of the universal service in order to be able to make a clear distinction between each of the services and products which are part of the universal service and services and products which are not part of such a service, or does it only follow from that provision that an accounting distinction must be made between, on the one hand, the services and products which are part of the universal service and, on the other hand, services and products which are not part of such a service?

(2) Must the introductory paragraph and second indent of Article 12 of [Directive 97/67], as amended by [Directive 2008/6], be interpreted as meaning that each individual service that is part of the universal service must be cost-oriented?

(3) Does the requirement laid down in the introductory paragraph and second indent of Article 12 of [Directive 97/67], as amended by [Directive 2008/6], that prices must be cost-oriented and give incentives for an efficient universal service provision preclude the adoption for an indefinite period of a fixed rate of return by which the costs of the universal postal services are increased having regard to tariff headroom?’

26. Written observations have been submitted by Sandd, PostNL, the Netherlands, Spanish, Italian and Polish Governments, and by the Commission. Sandd, PostNL, the Netherlands Government and the Commission also presented oral argument at the hearing on 11 April 2018.

27. It has been more than 10 years since Directive 97/67 was last amended as a further step towards a liberalisation of postal markets in the European Union. Since then, to my knowledge, the Court has had the opportunity to interpret that directive in only a handful of cases and has never been called upon to interpret Article 12 or 14 of Directive 97/67.

28. The present dispute, seemingly, was brought about by fear on the part of Sandd that PostNL might be subsidising some of its services that are subject to competition with profits obtained through the provision of universal postal service in the Netherlands. Sandd and PostNL are direct competitors in the provision of non-time-critical commercial postal services in the Netherlands and both companies have a national delivery network.

29. As Sandd submitted in its written observations, the cost of standard stamps issued by PostNL within the framework of the latter’s universal service obligation has continuously risen over the last years from EUR 0.44 in 2010 to EUR 0.78 in the year 2017. However, PostNL’s prices for a standard non-time-critical commercial postal item have remained stable over the same period, remaining below EUR 0.40. Sandd argues that this divergence in pricing can be explained only by selective or inexact calculation by PostNL, thus implying that PostNL uses subsidies from the universal service sector in order to boost its competitive edge in procuring commercial customers. In trying to prove these suspicions, Sandd claims that more detailed accounting information must be given to the national regulatory authority by PostNL. A requirement Sandd reads from Article 14 of Directive 97/67. Sandd also argues that such subsidies could be avoided altogether if the prices for each service or product offered by PostNL were cost-oriented, a requirement imposed by Article 12 of Directive 97/67.

30. At a superficial glance, Sandd’s arguments might seem convincing. Or for that matter, how could more detailed accounting information and more stringent cost-orientation rather than less be contrary to the monitored transition to a fully competitive market envisaged by Directive 97/67? However, it is my opinion that Sandd’s arguments do not hold good when considered in light of the economic principles and the objectives underlying the architecture of the universal postal service as set up by EU law.

31. In the following, I will first present the principles and objectives underlying Directive 97/67, while also delineating the limits of the internal market for postal services in the European Union. Thereafter I will deal in turn with the three questions referred .

32. In July 1995 the Commission first proposed measures introducing common rules for developing the postal sector and improving the quality of service, as well as gradually opening the national postal markets to competition in a controlled way. The basis of the proposal was to safeguard the postal service as a universal service in the long term. This was to ensure that everyone has access to postal services of a certain quality at affordable prices, even in rural or sparsely populated areas where the tariffs do not necessarily cover the cost of providing the service. For that reason the idea was to reserve certain postal services for the universal service provider which, accordingly, did not face any competition in that sector. The progressive and gradual opening of postal markets in that sense provided universal service providers with sufficient time to put in place the necessary modernisation and restructuring measures while at the same time ensuring the provision of the universal service under financially balanced conditions. (5)

34. As a next step in the gradual opening up of the national postal markets, Directive 2002/39 limited to a greater extent the services that could be reserved for the universal service provider and also specifically introduced a prohibition on cross-subsidies from the reserved sector to the non-reserved sector.

35. In 2006 the Commission presented the proposal for a third postal directive which was later passed as Directive 2008/6. The new directive did away with any reserved services and opened the entire postal market (including services to be covered by a universal service obligation) to competition. Recognising, however, the need to ensure postal services for all at affordable prices irrespective of economic profitability for the service provider, the universal service obligation was maintained. As financing of that obligation was no longer possible by dint of reserved services, provision was made in Directive 2008/6 for other ways of financing universal services in what is now Article 7 of Directive 97/67, as amended.

36. The universal service obligation, as currently defined by Directive 97/67, comprises the permanent provision of a postal service of specified quality throughout Member States’ territories at affordable prices for postal items up to 2 kilograms and postal packages up to 10 kilograms, and services for registered items and insured items. Universal postal services further include the provision of points of contact and access points according to the needs of users. Postal services, notably clearing and delivery, must be guaranteed not less than five working days per week, save in exceptional circumstances. (6) In addition, Member States may add the free provision of postal services for blind and partially-sighted persons (7) or other extra requirements to the universal service obligation.

37. Given the differences in geographical, infrastructure and market conditions between the Member States, the latter are, to a certain extent, required to specify the scope of the universal service obligation. Directive 97/67 merely provides for a minimum level of services that must be provided. (8) Member States may thus choose to enhance the universal service obligation; for instance, by adding an additional day for deliveries each week. (9)

38. In addition, Member States must adopt a financing mechanism for the provision of universal services, either from various options provided in Article 7 of Directive 97/67, (10) or by choosing ‘any other means’ compatible with the Treaty, (11) thereby enabling Member States to adapt the financing of the universal postal service to the market conditions prevailing in their territory.

39. In choosing the financing of the universal service obligation, Member States must take into account an array of considerations. Not only do the prerequisites of the universal service depend heavily on country-specific factors such as geography, population density and infrastructure, Directive 97/67 moreover requires the provision of the universal service to be cost-efficient. (12) In setting up the universal service obligation, Member States thus have to weigh the requirement to provide incentives for economic efficiency against the requirement to guarantee the provision of universal services, in particular by providing the necessary resources to enable it to operate under financially balanced conditions. (13)

40. Although subsidisation of unprofitable parts of the universal service by means of a reserved sector was abolished with Directive 2008/6, cross-subsidisation remains one of the main forms of financing the universal service obligation in Member States. Universal service providers thereby cross-subsidise unprofitable parts of the universal service obligation - such as postal services in sparsely populated areas - through more profitable parts of the universal service obligation, that are commonly found in more densely populated areas.

41. By not harmonising the exact scope or the financing of the universal service obligation in a fully competitive market, Directive 97/67 requires important policy choices to be taken by the Member States. The EU legislature thus acknowledges the persisting differences between the various national postal markets.

42. In order to ensure the continuity of the universal service provision as envisaged in Directive 97/67, both in establishing the conditions under which universal services are entrusted and in financing of the universal service, Member States must adhere to the principles of transparency, non-discrimination and proportionality. (14) Contrary to what is implied in the submissions by PostNL, these principles do not merely provide non-binding guidance, but must be adhered to by the Member States when monitoring a universal service provider. This is all the more important as in many Member States the universal service provider is the incumbent postal operator, often State-owned.

43. Moreover, Member States’ discretion in setting up the universal service in their national territory is further curtailed by the application of the rules of the Treaty, and in particular its rules on competition and the freedom to provide services. (15) A universal service provider that infringes competition law rules will be subject to penalties under EU law, (16) regardless of the arrangement chosen for the provision of universal services by the Member State concerned. In addition, EU rules on State aid ensure that universal service providers do not obtain undue advantages in comparison with competitors. (17)

44. Mindful of the considerations above, I will now deal with the questions referred.

B. The first question referred: accounting requirements emanating from Article 14 of Directive 97/67

45. By its first question, the referring court essentially asks how detailed the internal accounting of the universal service provider must be, or more specifically, whether or not Directive 97/67 requires Member States to impose on universal service providers the obligation to keep separate accounts for each individual service or product within the universal service.

46. Sandd alleges that the difference in pricing between the stamps issued by PostNL as part of its universal service obligation and the per piece tariff of the latter’s commercial services can be explained only by selective or inaccurate calculation of costs by PostNL. Following the Netherlands regulatory authority’s rejection of Sandd’s complaint to that effect, Sandd seems to suggest in the main proceedings that PostNL’s accounting is insufficiently detailed for the national regulatory authority to assess correctly PostNL’s cost allocation between the universal service and the non-universal service, as the universal service provider calculates only the overall costs incurred by the universal service obligation on the one hand, and the overall costs incurred by commercial activities on the other. Sandd contends that this accounting practice is in breach of Article 14 of Directive 97/67, which requires universal service providers to ‘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’.

47. Sandd understands this to mean that the costs for each individual service or product must be shown separately in the internal accounts of the universal service provider. However, PostNL submits that it follows from the objectives, context and origin of Article 14 that no such requirement can be found in that provision.

48. As pointed out by the referring court, the provision in question is somewhat ambiguous in this regard. The English version of Article 14 refers to ‘each of the services and products which are part of the universal service’. ‘Each’ in this context could be understood to mean either ‘each individual’ but also ‘every one’ or ‘all’. This ambiguity cannot be resolved by taking recourse to other language versions of Directive 97/67. While some languages reproduce an equivalent of ‘each’, others refer to ‘all services and products’ or simply refer to ‘on the one hand, the services and products that are part of the universal service and, on the other hand, the services and products that are not’, thus not further specifying whether the accounting separation must be done between each individual service or product of the universal service or, rather, between the services and products of the universal service overall and other services and products offered by the universal service provider.

49. In accordance with established case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. In those circumstances, where there is divergence between two language versions of a European Union legal text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (18)

50. Article 14 in its current form came about by way of Directive 2008/6 when reserved services were abolished and new mechanisms for financing of the universal service obligation were introduced. The provision sets certain requirements for the internal accounting of universal service providers.

51. In addition to obliging universal service providers to keep separate accounts for the universal service and their commercial activities, Article 14 provides rules on the allocation of costs caused by universal service. (19) Whenever possible, costs are to be directly assigned to a particular service or product. (20) Where this is not possible, costs are to be allocated on the basis of direct analysis of origin, indirect linkage, or a general allocator. (21) Common costs that are necessary for the provision of both universal services and non-universal services are to be allocated ‘appropriately’ whereas ‘the same cost drivers must be applied to both universal services and non-universal services’. (22)

52. As far as concerns the purpose of the provision, it is clear from the second phrase of Article 14(2) that the accounting information required by the provision is to be used ‘as an input when Member States calculatethe net cost of the universal service’. Annex I to Directive 97/67 provides further guidance on calculating that net cost, ‘if any’ should exist. Accordingly, calculation of the net cost of universal service is to take into account any relevant elements, including ‘intangible and market benefits’ which accrue to the universal service provider. (23) Annex I thereby clarifies that the calculation of the net cost of universal service is not a mere accounting exercise, but rather that a global appreciation of the postal market is required.

53. In addition, the obligation to keep separate accounts in Article 14 serves ‘to prevent cross-subsidies from adversely affecting competition’. (24) The accounting information is to help Member States and their national regulatory authorities (i) adopt decisions related to the universal service; (ii) determine whether the universal service obligations imposed entail a net cost and represent an unfair financial burden on the universal service provider; (iii) ensure that the tariffs applied to the universal service comply with the principles on tariffs as set out by Directive 2008/6; (iv) ensure compliance with the principles on terminal dues as set out in Directive 2008/6; and (v) monitor fair market conditions until competition becomes effective. (25)

54. All those measures help to pursue one main objective: the transition towards a fully competitive postal market. As the postal markets in the Member States traditionally have been shaped by monopolies, that transition must happen both in a gradual manner and under supervision. (26)

55. In monitoring the transition to a fully competitive market, the Member States and their national regulatory authorities have a central role. (27) Directive 97/67 merely constitutes a framework of general principles adopted at EU level, the determination of the exact procedures being a matter for the Member States, which must be free to choose the system best adapted to their own circumstances. (28) And circumstances among the Member States are varied.

56. For instance, the net cost of the universal service varies considerably among the Member States. (29) This is due to different market conditions as well as policy choices prevalent in the Member States. For instance, the net cost of the universal service might be zero where the (tangible or intangible) benefits resulting from the provision of the universal service obligation might be greater than the cost. Even though the universal service provider is under the obligation to provide postal services also in high cost areas, there are certain network benefits to being the only provider offering postal services throughout the entire territory of a Member State, and at least five days a week. (30) In countries that have a good infrastructure, an easily accessible territory and that are densely populated (such as the Netherlands), these network benefits might outweigh the cost of having to provide services and products also in less profitable areas. In such circumstances, no net cost accrues to the universal service provider and, as pointed out by the Italian Government, any overly stringent accounting requirements would only add an economic burden on the universal service provider without providing any benefit. This would run counter to the principle of proportionality, whose observance is explicitly required by Directive 97/67, and to the directive’s aim of providing universal service obligations cost efficiently. (31)

57. However, in Member States where, due to market conditions, the net cost of the universal service obligation is rather high and is, moreover, financed through public funds or shared between providers of postal services and/or users, much more detailed accounts are necessary in order to enable the national regulatory authority to assess whether those contributions are used to the end provided for in Directive 97/67. (32)

58. In that respect, Directive 97/67 is a true minimum harmonisation instrument.

59. That is also why the obligation for universal service providers to keep separate and transparent accounts is subject to necessary adaptations. (33)

60. Article 14(4) allows national regulatory authorities to approve other cost accounting systems where the latter operate on the basis of consistently applied and objectively justifiable cost accounting principles. Read in light of the preamble to Directive 2008/6, those principles entail the provision of accounting information of sufficient detail to enable the Member States and their national regulatory authorities to monitor the transition towards a fully competitive market properly. (34) The existence on the market of one or more competitors would, in my view, point to the fact that the market is indeed already competitive.

61. Moreover, when a Member State has not used a financing mechanism and no State assistance is provided to the universal service provider, hidden or otherwise, Directive 97/67 even leaves it to the national regulatory authority to do away completely with any of the accounting requirements in Article 14. (35) In those circumstances, detailed monitoring of the universal service provider’s accounting by the national regulatory authority is no longer required and instead falls within the purview of competition law.

62. The Commission’s argument that accounting information of sufficient detail is possible only with separate accounting for each individual service or product is hence an oversimplification of the matter and cannot hold true for the universal service in all Member States.

63. Even though recital 29 of Directive 97/67 obliges universal service providers to put in place an accounting system ‘by which costs can be allocated to services as accurately as possible’, it must be borne in mind that that version of the directive still allowed Member States to maintain a reserved sector as a way of financing the universal service. After the 2008 amendment, the exact scope of the accounting obligation for universal service providers can be determined only by the Member States and their national regulatory authorities. Given that Member States now choose the financing of the universal service on the basis of the minimum requirements provided for in Directive 97/67, they must also choose the accuracy of the accounting system required in order to prevent any undue economic burden being placed on the universal service provider.

64. Therefore I agree with PostNL as well as the Netherlands, Italian and Spanish Governments that the Member States must dispose of considerable leeway in determining the level of detail required in a universal service provider’s internal accounts. (36)

65. It should be mentioned here that certain safeguards are built into Directive 97/67 in view of the Member States’ considerable leeway, such as the audit of the universal service provider by an independent auditing firm prescribed by that directive. (37)

66. Therefore I conclude that Article 14 of Directive 97/67, read in the light of its general scheme and purpose, contains no general obligation to keep separate accounts for each individual service or product within the universal postal service. Rather, the detail of accounting information required of a universal service provider is intrinsically linked to the specific circumstances under which universal postal services are provided in each Member State, such as the design of the universal service, the prevailing market conditions and the degree of competition on the national postal market.

67. Accordingly, the answer to the first question referred must be that Article 14 of Directive 97/67 does not impose on Member States the duty to provide in national legislation that universal service providers must, in their internal accounting, keep separate accounts for each of the services and products which are part of the universal service.

C. The second question referred: the principle of cost-orientation in Directive 97/67

68. The second question referred deals with the issue of whether or not it follows from the first and second indents of Article 12 of Directive 97/67 that the tariff for each individual service forming part of the universal service must be cost-oriented, rather than the provision of the universal service as a whole.

69. In other words, by its second question the referring court seeks an interpretation as to whether Article 12 of Directive 97/67 prohibits cross-subsidies between the various services and products provided as part of a universal service obligation.

70. Sandd, the Polish Government and the Commission contend, relying on the wording of Article 12, that the tariff for each individual service provided under the universal service obligation must be geared to cost. PostNL as well as the Netherlands, Spanish and Italian Governments, on the other hand, argue that in light of its legal and economic context Article 12 of Directive 97/67 should not be interpreted in such a manner.

71. Without providing a definition as to what constitutes a ‘service or product’ for the purposes of Directive 97/67, Article 12 requires ‘the tariffs for each of the services forming part of the universal service’ to comply with certain principles. Tariffs must be affordable, cost-oriented and give incentives for an efficient universal service provision, as well as be transparent and non-discriminatory. (38) At the same time, Article 12, first, allows Member States to maintain or introduce the provision of a free postal service for the use of blind and partially-sighted persons (39) and, second, to decide that a uniform tariff be applied throughout their national territory and/or cross-border. (40) Third, the provision safeguards the right for universal service providers to conclude individual agreements on prices with users. (41)

72. It is clear from the wording and structure of Article 12 that the principles listed therein must be applied cumulatively. As PostNL, the Netherlands Government and the Spanish Government have pointed out, a certain tension exists between the principle that prices must be cost-oriented and that they must be affordable. In high cost areas, if tariffs were to be calculated strictly based on cost, postal services would not be considered affordable. Indeed, in this conundrum lies the very reason for retaining the universal service obligation despite a progressive liberalisation of postal markets. The premiss of a universal service obligation being that the services or products in question would not be offered in the entire territory of a Member State on market conditions. The provision of some services within the universal service thus can be fulfilled only at a loss or at a net cost which falls outside normal commercial standards. That is why Directive 97/67 provides for mechanisms for financing the net cost of the universal service where costs cannot be recuperated through tariffs alone. (42) In calculating the net cost of the universal service, not only accountancy principles are applied but also intangible and market benefits are taken into account. (43)

73. It further must be borne in mind that Article 12 mentions the principle that prices must be cost-oriented together with the principle that prices must give incentives for an efficient universal service provision. (44) The word ‘incentive’ implies that universal service providers should not merely recover costs.

74. Consequently, the principle of cost-orientation is not to be interpreted strictly and, moreover, cannot be expressed merely as the result of an accounting exercise.

75. So, what is the meaning and objective of the cost-orientation principle in Article 12 of Directive 97/67?

76. Article 12, while building on the previously applicable provision, was inserted into Directive 97/67 by way of amendment in 2008 when a more mature market situation had been achieved. Since then, postal services have been offered in a fully competitive environment.

77. On the one hand, Article 12 seeks ‘to ensure sound management of the universal service’. (45) Sound management of the universal service implies both that the costs of burdens of the universal service obligation are based on the costs of efficient operation, rather than by costs which might be inflated by inefficient working practices and/or inflated wage and other cost levels, (46) and that universal service providers can fulfil their mission on the basis of economic and financial conditions that do not place an unfair financial burden on them. (47)

78. On the other hand, in a fully competitive environment, prices of providing universal postal services should, in so far as possible, ‘reflect normal commercial conditions and costs’. This is to prevent market distortions but at the same time to ensure financial equilibrium of the universal service. Directive 97/67 seeks to achieve this by continuing to allow Member States to impose uniform tariffs or price caps on postal service providers for certain postal services. (48) Uniform tariffs ensure that prices will be affordable also in high cost areas, while at the same time serving as an incentive for cost efficiency.

79. However, as the Spanish Government pointed out, the imposition of a uniform tariff necessarily implies that the latter will be set by reference to the average costs of the universal service. Otherwise it will be materially impossible that such a uniform tariff can reflect the differences in costs and services comprised within the universal service. (49)

80. Moreover, uniform tariffs in the form of ‘terminal dues’ are also imposed for the delivery of international mail and parcels, as mentioned by the Netherlands Government at the hearing. However, unlike the terminal dues for intra-EU cross-border mail, (50) the terminal rates for delivery of parcels originating in third countries are fixed, not on the basis of the costs generated, but by international agreement at a per piece tariff which in many Member States lies below the cost of national parcel delivery. (51) With e-commerce enjoying greater and greater popularity, the number of such international parcels is steadily increasing. If each individual service within the universal service had to be cost-oriented, the tariffs for national parcels would likely become unaffordable as the additional costs caused by international parcels from third countries could be offset only by that tariff.

81. The idea of subsidies - either as cross-subsidies between the various postal services provided by the universal service provider or as a compensation mechanism - is thus inherent in the architecture of the universal service obligation as laid down in Directive 97/67. This is also acknowledged in Article 7 of that directive which provides for various means of financing the provision of universal services. The reserved sector having been done away with, even cross-subsidies from the non-universal sector to the universal sector might be feasible for such financing, as long as they do not adversely affect competition. (52) Directive 2008/6 even expressly mentions that profits accruing from activities outside the scope of the universal service may be used for the financing of the universal service, as long as this is done in line with the Treaty. (53) By having recourse to cross-subsidies, the universal service is independent of external financing which, in the final analysis, ensures the competitiveness of the universal service provider but also the long-term viability of the universal service as such. (54)

82. The interpretation advocated by Sandd and the Commission would, therefore, be contrary not only to the overall scheme of Article 12 but also to the raison d’être of the universal service. As long as the imposition of a universal service obligation is necessary, postal services cannot be provided at prices strictly geared to cost for each individual service.

83. Both PostNL and the Polish Government have observed (though to different ends), that cost-orientation for each individual service is in any case only possible where the costs of providing each individual service can be identified. Depending on national circumstances, it might be impossible to attribute all costs arising from the provision of a universal service obligation to a specific service. Article 14(3)(b) of Directive 97/67 even explicitly acknowledges that it might not be possible to assign common costs directly to a particular service or product. What is more, Directive 97/67 does not provide sufficiently detailed guidance on how to assign common costs in a uniform manner across the Member States.

84. The latter was apparent in Post Danmark (55) where the Court was called upon to decide whether it constituted abuse of a dominant position where the universal service provider offered selective price reductions at a level lower than the postal undertaking’s average total costs, but higher than the universal service provider’s average incremental costs. In resolving the question put to it, the Court explicitly left the details of the correct assessment of common costs to the Member State’s authorities. (56)

85. Accordingly, it must be for the Member States and their regulatory authorities, which enjoy considerable leeway in implementing Directive 97/67 (57) and also have ‘the freedom to decide how best to monitor cross-subsidies’, (58) to determine the details of what implementation of Article 12 of Directive 97/67 entails. This will depend on the national specificities in each Member State. While in some Member States it might be possible to provide most postal services at tariffs geared to cost by each individual service, in other Member States more cross-subsidisation might be required due to a significant percentage of high cost areas, be it for geographical reasons, extended scope of the universal service obligation, or otherwise.

86. Sandd argues that the liberty to have cost-orientation only for the universal service as a whole would short-circuit competition and would lead to competitors of the universal service provider being faced with prices artificially low and impossible to compete with. However, this argument neglects the fact that despite the leeway given to Member States in setting up and monitoring the universal service, actions of universal service providers, within or outside the universal service obligation, remain subject to EU competition law rules, notwithstanding the fact that some of those services are regulated. (59) In case of pricing abuses by a universal service provider, legal relief will be available to competitors under competition law.

87. However, the mere fact that PostNL is offering its services to commercial users at a rather low price while its prices for stamps has continuously risen over the last years does not necessarily mean that it is in breach of competition rules. Under the new version of Directive 97/67, universal service providers are to enjoy ‘more price flexibility in line with the cost-orientation principle’. (60) In this way, universal service providers have room for negotiation with certain groups of customers. (61) Provided the customer resides in a low cost area or otherwise mitigates the cost involved in processing its mail (e.g. by pre-sorting), it is possible for PostNL to offer its services at lower prices while at the same time observing the principles enshrined in Article 12. In contrast, when determining the price for stamps subject to a uniform tariff and, in some Member States, also a price cap, PostNL has to take into account that letters bearing those stamps might have to be delivered even to remote islands.

88. The answer to the second question referred therefore must be that Article 12 of Directive 97/67 is not to be interpreted as imposing an obligation on universal service providers that each individual service forming part of the universal service must be cost-oriented. Member States or their national regulatory authorities may, however, impose such a requirement on universal service providers.

D. The third question referred: conditions set by Directive 97/67 for the rate of return of a universal service provider

89. By its third question, the referring court asks whether the requirement in Article 12 of Directive 97/67 that prices must be cost-oriented and give incentives for an efficient universal service provision precludes the adoption for an indefinite period of a fixed rate of return by which the costs of the universal postal services are increased having regard to tariff headroom.

90. That question in fact raises two distinct issues. First, the issue is raised whether the cost-orientation principle in Directive 97/67 precludes universal service providers from recuperating return on their investments when calculating the costs accruing from the provision of universal service. Second, the third question referred also raises the issue of whether Member States may fix a rate of return for an indefinite period of time under Directive 97/67.

91. It is clear from Annex I to Directive 97/67 that the calculation of the net cost of universal service includes the ‘entitlement to a reasonable profit’ on the part of the universal service provider. (62) Moreover, as submitted by the Spanish Government, the reference in the second indent of Article 12 that prices must ‘give incentives for an efficient universal service provision’ (emphasis added) implies that universal service providers are entitled to more than just recovery of costs. (63)

92. However, Directive 97/67 remains silent as to what a ‘reasonable profit’ entails. Profit as such is only referred to indirectly when the directive prescribes that the designation of a universal service provider must be for such duration that it provides a ‘sufficient period for return on investments’. However, that designation must be periodically reviewed by Member States. (64)

93. Sandd argues, relying on the Court’s case-law in other regulated fields concerning services of general economic interest, (65) that the notion of ‘reasonable return’ should be determined on the basis of a return on capital invested. Given that tariffs for the provision of universal service must be geared to cost, rather than profit, a rate of return based on the investments made by a universal service provider seems a reasonable point of departure for determining a reasonable profit. However, findings for one field of universal services cannot be readily transposed to other fields as both the form and the scope of the universal service obligations vary based on the given market situation.

94. In the case-law mentioned above, the Court based its reasoning on guidance provided by the Commission on how to evaluate reasonable profit for the provision of services of general economic interest. (66) The relevant Commission communication defines ‘reasonable profit’ primarily as ‘the rate of return on capital …, taking into account the level of risk’. The Commission Communication further states that the ‘level of risk depends on the sector concerned, the type of service and the characteristics of the compensation mechanism’. (67) At the same time, the Commission acknowledges that other profit level indicators may be used. (68)

95. Considering the differences in the scope and financing of the universal postal service among the Member States, there must also be significant differences in the level of risk involved for the universal service provider. In some Member States it might be much more difficult to find a postal service provider willing to take on the universal service obligation than in others. In order to ensure provision of the universal service, which is one of the main objectives of Directive 97/67, the rate of return for universal service providers in the former Member States will have to be higher than in the latter. Accordingly, the notion of reasonable profit is not the same for all the Member States and, moreover, requires an in-depth assessment of the prevalent conditions on the national postal market.

96. The silence of Directive 97/67 with regard to detailed rules for calculating a reasonable profit must, therefore, be interpreted as argued by the Spanish Government, as a conscious choice on the part of the EU legislature not to harmonise that aspect at EU level. It thus is for the Member States to determine what constitutes a reasonable profit, bearing in mind the principles listed in Article 12 of Directive 97/67 and that the profit determined must not constitute a distortion of competition. (69)

97. I turn now to the issue whether the rate of return for a universal service provider can be fixed for an indefinite period.

98. Directive 97/67 provides relatively little guidance in this respect. However, given that the designation of a universal service provider must be reviewed periodically in accordance with Article 4 of Directive 97/67, (70) it is clear to me that the rate of return fixed by the Member States or their national regulatory authorities must at the very least also be reviewed periodically. In addition, given that what constitutes a reasonable rate of return depends heavily on the conditions prevalent on the national postal market, it stands to reason that the rate of return must be adapted whenever conditions on the market change. As long as a rate of return is reviewed regularly and can be adapted according to market changes, I see no reason why the rate of return for the universal service provider could not be fixed for an indeterminate period of time.

99. To that effect, PostNL and the Netherlands Government clarified both in their written observations and at the hearing that the rate of return for the universal service provider in the Netherlands is reviewed by ACM annually and that annual ministerial intervention to adapt the tariff margins is also possible. They argue that it has not been necessary to adapt the rate of return since 2011, partly owing to the losses incurred by PostNL for several years.

100. Moreover, in circumstances where the assessment of the national regulatory authority seems incorrect, users and postal service providers affected by such a decision must have the possibility of bringing an appeal against the decision before an independent appeal body, (71) a possibility which Sandd has used in bringing the main proceedings. In this way, users and postal service providers are protected against incorrect or arbitrary decisions by national regulatory authorities despite the significant discretion conferred on the latter by Directive 97/67.

101. Accordingly, the answer to the third question referred must be that Article 12 of Directive 97/67 does not preclude the adoption for an indefinite period of a fixed rate of return by which the costs of the universal postal services are increased having regard to tariff headroom, provided the rate of return is periodically reviewed and can readily be modified. In calculating a reasonable profit, national regulatory authorities must, however, take due account of the prevalent conditions on the national postal market and observe the principles enshrined in Article 12, and ensure that the tariff headroom authorised does not lead to a distortion of competition on the postal market.

102. In the light of the foregoing I propose that the Court answer the questions referred by the Rechtbank Rotterdam (Rotterdam District Court, Netherlands) as follows:

(1) Article 14(2) 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 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services does not impose on Member States a general obligation to provide in national legislation that universal service providers must, in their internal accounting, keep separate accounts for each of the services and products which are part of the universal service.

The detail of accounting information required by a universal service provider depends on the specific circumstances in which universal postal services are provided in each Member State, such as the design of the universal service, the prevailing market conditions and the degree of competition on the national postal market.

(2) Article 12 of Directive 97/67 is not to be interpreted as imposing an obligation on universal service providers that each individual service that is part of the universal service must be cost-oriented. Member States or their national regulatory authorities may, however, impose such a requirement on universal service providers.

(3) The requirement laid down in the introductory paragraph and the second indent of Article 12 of Directive 97/67 that prices must be cost-oriented and give incentives for an efficient universal service provision does not preclude the adoption for an indefinite period of a fixed rate of return by which the costs of the universal postal services are increased having regard to tariff headroom, provided the rate of return is periodically reviewed and can readily be modified.

In calculating a reasonable profit, national regulatory authorities must, however, take due account of the prevalent conditions on the national postal market and observe the principles enshrined in Article 12, and ensure that the tariff headroom authorised does not lead to a distortion of competition on the postal market.

2 Directive of the European Parliament and of the Council of 15 December 1997 (OJ 1998 L 15, p. 14).

3 Directive of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21).

4 Directive of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).

9 Cf. Costing and Financing of Universal Service Obligations in the Postal Sector in the European Union, Final Report for EC DG XIII, National Economic Research Associates (NERA), London, November 1998 (‘the NERA Report’), p. 3.

10 See Article 7(2) and (3) of Directive 97/67. For a detailed discussion, see the NERA Report, p. 77 et seq.

11 See Article 7(1) of Directive 97/67. This might entail, for instance requiring all service providers to fulfil part of the universal service obligation. For a detailed discussion, see Geradin, D., and Humpe, C., ‘The Liberalisation of Postal Services in the European Union: An Analysis of Directive 97/67’ in Geradin, D. (ed.), The Liberalization of Postal Services in the European Union, Kluwer Law International, The Hague – London – New York, 2002,pp. 99-119.

13 See recital 38 of Directive 2008/6. See also judgment of 15 November 2007, International Mail Spain, C‑162/06, EU:C:2007:681, paragraphs 31 and 45.

15 See recital 41 of Directive 97/67. See also Articles 11a, 14(8), 22(1) and (2) of that directive.

16 See recitals 16 and 41 of Directive 97/67. Cf. also judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172.

17 In particular, the Commission’s decisional practice seeks to ensure that compensation for universal service providers from public funds does not exceed the net cost actually incurred. See, for example, Commission Decisions of 24.11.2016 and 01.08.2014, Hellenic Post (ELTA) (SA.35608), and of 04.12.2015, Poste Italiane (SA.43243).

18 See, for example, judgment of 20 December 2017, Polkomtel, C‑277/16, EU:C:2017:989, paragraph 59 and the case-law cited.

28 See recital 10 of Directive 97/67 as well as the judgment of 13 October 2011, Express Line, C‑148/10, EU:C:2011:654, paragraph 36 and the case-law cited.

31 See Article 4(2) of Directive 97/67 as well as recital 51 of Directive 2008/6 which states that ‘... Requests for information should be proportionate and not impose an undue burden on undertakings.’

40 See the second indent of Article 12 as well as recital 38 of Directive 97/67.

42 See Article 7 of Directive 97/67 in combination with recital 26 of Directive 2008/6.

46 See the second indent of Article 12 of Directive 97/67 as well as the NERA Report, p. vii.

47 Cf. Article 7(3) of Directive 97/67, and Article 14 TFEU which reads: ‘Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.’ (emphasis added).

51 See Commission Staff Working Document accompanying the document ‘Report from the Commission to the European Parliament and the Council on the application of the Postal Services Directive (Directive 97/67/EC as amended by Directive 2002/39/EC and Directive 2008/6/EC) (SWD(2015) 207 final), pp. 34 and 35, as well as Gerardin, D., and Humpe, C., op.cit., pp. 107-111.

52 See recital 41 of Directive 2008/6. In contrast, the previously applicable recital 28 of Directive 97/67.

56 Cf. judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraphs 38 and 39.

62 See the third paragraph of Part B in Annex I to Directive 97/67 in connection with recital 29 of Directive 2008/6.

65 See judgments of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic, C‑508/14, EU:C:2015:657, and of 29 March 2012, Telefónica and Telefónica de España v CommissionTelefónica and Telefónica de España v CommissionTelefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172.

66 See judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic, C‑508/14, EU:C:2015:657, paragraph 42, referring to the Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest (OJ 2012 C 8, p. 4) (‘the Commission Communication’) and Commission Decision 2012/21/EU of 20 December 2011 on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ 2012 L 7, p. 3).

68 See point 34 of the Commission Communication ‘European Union framework for State aid in the form of public service compensation (2011)’ (OJ 2012 C 8, p. 15).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sandd (Freedom to provide services - Postal services - Opinion) [2018] EUECJ C-256/17_O (20 June 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C25617_O.html Cite as: EU:C:2018:474, [2018] EUECJ C-256/17_O, ECLI:EU:C:2018:474

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