Luxembourg, 18/05/2001 (Agence Europe) - In a press release concerning a ruling passed down in the TNT Traco case, the Court of Justice press and information division stresses that an express mail service company may, in certain circumstances, be required to pay postal dues to the operator responsible for the universal postal service.
In Italian legislation, an undertaking providing an express mail service not forming part of the universal service must pay postal dues to the operator responsible for the universal service (Poste Italiane), amounting to the postage rate normally payable. In 1997, Poste Italiane imposed a fine of 46 million lire on TNT Traco's subsidiary in Genoa for breach of Poste's exclusivity right for the collection, carrying and delivery of mail. TNT Traco then turned to the District Court of Genoa, relying on the principle of free competition laid down under the EU Treaty. Initially, the Court ordered Poste to refund TNT Traco the 46 million lire, the supervisory, regulatory and disciplinary powers held by Poste having been transferred to the Ministry of Posts and Telecommunications in 1994. It then referred questions to the Court of Justice concerning the compatibility of the Italian legislation with Community competition rules. The Court observes that Poste is, for the purposes of the Treaty, a public undertaking which has been granted special and exclusive rights, and, as such, has a dominant position in Italy. Italian law creates a situation in which the undertaking which has been granted special or exclusive rights cannot avoid abusing its dominant position since it is paid for services which it has not itself supplied. The Court considers that the Italian court must ascertain whether that situation affects trade between Member States, in which case Italian law would be contrary to the Community rules of free competition. Poste Italiane and the Italian Government submit that the obligation to pay the postal due is justified by the need to safeguard the economic stability of the undertaking entrusted with the operation of the universal postal service. According to the Court's case-law, the grant of special or exclusive rights to an undertaking entrusted with the operation of services of a general economic interest may be justified by the need to ensure that the undertaking's special task is performed and provided that the development of trade between Member States is not affected to such an extent as would be contrary to the interests of the Community. The Court acknowledges that an undertaking like Poste Italiane is responsible for operating a service in the general economic interest, since it secures the universal postal service, irrespective of the profitability of the sector being served. In order to enable such an undertaking to perform that special task, it may prove necessary not only to permit it to offset its profitable sectors against its less profitable sectors, but also require suppliers of postal services not forming part of the universal service to pay postal dues which contribute to the financing of the universal service and enable that service to be provided in conditions of economic stability. The total proceeds from the postal dues, paid by all economic operators supplying an express mail service, may not, however, exceed the amount necessary to offset any losses in the universal postal service. Furthermore, the Court considers that when an undertaking providing the universal postal service supplies an express delivery, it must also be required, under the same conditions, to pay the postal dues.