C-48/90

NETHERLANDS AND OTHERS v COMMISSION

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 16 October 1991 *

Summary

A — Background I - 590

1. The provision of express delivery services in the Netherlands I - 590

2. The contested decision I - 592

(b) Lack of understanding of the provisions and services concerned? I - 607

(c) Is the decision devoid of any factual basis? I - 608

(d) The operative part of the decision 1-611

D — Examination of the submissions on the substance I - 614

1. Absence of conduct by the undertaking I - 614

2. No abuse of a dominant position I - 619

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5 — See Article 2 in conjunction with Article 12(1) of the 3. The Postal Law, 1988, however, Posial Law, 1988. reshuffled the cards. It expressly confirms 6 — See Article 12(2) of the Postal Law, 1988. 7 — The requirement to declare rates annually was laid down by the Reveling Registratie Koeriersdiensten (regulation 4 — For a description of messenger services in die real sense, on registration of messenger services) of 12 May 1989, see inter alia FTTs reply in Case C-66/90, point 50. Staatscourant, 1989, N o 109.

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whether that assumption was justified) that patible with Article 90 of the EEC Treaty, these three cumulative conditions did not read in conjunction with Article 86. 8 The apply to PTT-Post BV in the event of that decision is contested in a number of respects undertaking also starting to provide and an examination of the pleas in law messenger services — which it has actually relied upon by the applicants will allow me been doing since 1 June 1990. to go in greater detail into the relevant parts of those pleas. Here I shall simply give a general survey by way of introduction to my examination.

8 — It is true that the declaration of incompatibility, as appears 2. The contested decision from the operative part of the decision, relates only to the minimum ptice rule and the requirement to register, and not to the quality condition even though, as may be seen from the statement of reasons on which the decision is based (see Recital (14)), that condition also conflicts with Article 90 in conjunction with Article 86. This is apparently something which has been overlooked and which, whilst it has consequences for the obligations resulting for the Netherlands Government from the contested decision, makes no difference to the appraisal of 4. As I have said, the conditions I have just the complaints relating to the statement of reasons and the legality of the decision. outlined for the provision of messenger 9 — See Recital (3) to the contested decision. services in the Netherlands were declared, 10 — See Recital (10) to the contested decision. by the contested decision, to be incom- 11 — See Recital (11) to the contested decision.

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5. It is common ground between the parties C — Examination of the 'procedural' that the contested decision, although not grounds relied on for declaring the decision addressed to PTT-Post BV, is of direct and void individual concern to it. However, the Commission calls in question the admissi- bility of its action because PTT-Post BV states itself that the legislation which is declared in the contested decision to be incompatible with the Treaty 1 5 is of no advantage to it, so that it has no legal 6. The pleas in law put forward by the interest in bringing proceedings. applicants are in the main identical, even though not always identically drafted. For the purposes of my examination I have grouped them under two headings. In this part of my Opinion I shall consider the I do not think the Commission is right here. 'procedural' grounds for declaring the It vigorously denies that PTT-Post BV decision void, relating to the Commission's power to take the contested decision 12 — Sec Recital (12) to the contested decision. (section C-l infra), to the infringement of 13 — See Recitals (13) and (14) to the contested decision. 14 — See Recitals (16), (17) and (18) to the contested decision. the rights of the defence (section C-2 infra) 15 — I shall return later (sections 28 to 31) to this point, which and to the statement of the reasons on is linked to the applicability to PTT-Post BV of the three which the contested decision is based conditions to which messenger services are subjected with regard to letters not exceeding 500 g (see section 3 above). (section C-3 infra). In the following part

1. Misuse of powers conferred by Article 90(3) 8. I do not find that argument convincing. To begin with the second part of it, which relates to the immediate legal effect and the drastic consequences of a decision based on Article 90(3), the comparison with a procedure under Article 169 needs to be toned down. In such a case the latter 7. The applicants claim that the procedure may result in a judgment of the Commission, in adopting the contested Court which cannot be contested because decision, is misusing the power conferred on there is no appeal to a higher court (see it by Article 90(3) of the Treaty. They take Article 171). Action by the Commission the view in fact that where the Commission under Article 90(3), on the other hand, has wishes to take action with regard to alleged quite different legal consequences: it leads infringements of the Treaty by the Member to a decision, that is, a binding instrument, States, it must follow the procedure laid but one which may be challenged. When the down in Article 169 of the EEC Treaty Member State to which the decision is except where the Treaty makes an express addressed thinks that it is incompatible with exception, as, for example, in Articles 93(2), procedural or substantive rules of 100A(4) and 225. In other words, by Community law it may in fact bring an adopting the contested decision, the action before the Court of Justice under Commission applied the power to adopt Article 173 of the EEC Treaty for a decisions for a purpose other than that declaration that it is void and may, if it expressly conferred upon it by Article 90(3), wishes, apply for the suspension of the in order — to quote the Netherlands operation of the measure in question under Government — to effect punitive supervision Article 185 of the Treaty.

Furthermore, the fact is that the power to only 'recommendations' or 'opinions'. 19 (I adopt decisions conferred on the shall come back presently to Case Commission by Article 90(3) allows of a C-202/88, dealing with the Commission's more effective procedure than that provided power to adopt directives under Article for by Article 169: in contrast to a 'reasoned 90(3).) opinion' within the meaning of the first paragraph of Article 169, a decision under Article 90(3) has the force of law immediately, even when an application is made for a declaration that it is void (but subject to a suspension of its operation by the Court). However, that is the logical and inevitable consequence of the power of supervision applicable to a specific field, conferred on the Commission by Article 90(3) and of the fact that that power may 9. What are we to make of the Netherlands be exercised inter alia by means of decisions. Government's main argument, namely that In the recent judgment in Case 226/87 by using decisions based on Article 90(3) to Commission v Greece16 the Court expressly declare provisions of national law incom- confirmed that a decision adopted under patible with the Treaty, that is, to quote the Article 90(3) falls within the general Netherlands Government, by making a category of decisions referred to in Article 'repressive' use of its power to adopt such 189 and is therefore binding in its entirety decisions, the Commission is misusing its upon the Member State to which it is power? I do not think the Netherlands addressed. The interpretation of the Government is right and I find strong Netherlands Government to the effect that support for my view in Case 226/87, such decisions may contain only 'indi- already cited. 20 That case concerned cations' explaining to the Member States proceedings under Article 169 by the how they should understand their obli- Commission for a declaration that the gations under Article 90(1) is untenable; it Greek Government had failed to comply would reduce such decisions to 'recommen- with a Commission decision under Article dations' or Opinions' within the meaning of 90(3) declaring a Greek law incompatible Article 189, which have no binding force. with Articles 52 and 54, the second Moreover that statement is not a new one: paragraph of Article 5 and Article (3)(f) of in Case 226/87 17 and Case C-202/88 l s also the Treaty. The Greek Government chal- the Court rejected the argument that Article lenged the legality of that decision before 90(3) would allow the Commission to issue the Court, but the Court declined to consider that defence because the Greek Government had not instituted, within the period prescribed in Article 173,

'. . . that in this case, in order to meet a fundamental requirement of the Community legal order, the Court should none the less, 10. The Netherlands Government never- by way of exception, exercise its power of theless contends that its statement is judicial review in regard to the decision of confirmed by the judgment in Case 24 April 1985. That decision . . . infringes C-202/88. 2 1 In that case the French the fundamental principle of the division of Government had challenged the powers between the Community and the Commission's power to declare under Member States and therefore lacks any legal Article 90(3) by means of a directive that basis in the Community legal order' national statutory provisions were incom- (paragraph 15 of the judgment). patible with the Treaty; in the French Government's view such a finding could be made only on the basis of the procedure under Article 169. The Court rejected that argument on the following grounds: The Court, however, rejected that argument on the ground that the Greek Government's objection:

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making specific findings that particular directive is not its general application but Member States failed to fulfil their obli- the fact that it requires of the Member State gations under the T r e a t y . . . " (paragraphs or States to which it is addressed a 'result to 17 and 18 of the judgment). be achieved', whilst leaving to the national authorities the choice of form and methods.

22 — That is already clear from the text of Article 189, which provides that, unlike a regulation which has general application and is directly applicable in all Member States, a directive is binding upon each Member State to which it is addressed only as to the result to be achieved. The question whether a directive can have general application 11. In any case, the objections to the use of überhaupt has even been raised in academic writings. See von der Groeben, H., von Boeckh, H., Thiesing, J. and a decision do not in my opinion in any case Ehlerrnann, C.-D-: Kommentar zum EWG-Vertrag, Baden- apply when — as is the case with the Baden, 1983, p. 562 at paragraph 39. Moreover the Council and the Commission regularly address directives to decision now before the Court — the a single Member State, namely when there is a specific problem which affects only that Member State. See for Commission finds that a provision of example Council Directive 79/174/EEC of 6 February national law is incompatible with a provision 1979 concerning the flood protection programme in the Hérault Valley, OJ 1979 L 38, p. 18 (addressed solely to of the Treaty having direct effect such as the French Republic), Council Directive 81/6/EEC of 1 January 1981 authorizing the Hellenic Republic to Article 90(1), read in conjunction with communicate and to implement its national plans for the Article 86, 2 3 that is, a provision of the accelerated eradication of brucellosis and tuberculosis in cattle, OJ 1981 L 14, p. 22, and Council Directive 81/1060/EEC of 14 December 1981 derogating in favour 23 — The Court has already confirmed in its judgment in Case of the Kingdom of the Netherlands from Directive 155/73 Sacai [19741 ECR 409, at paragraph 18, that the 73/403/EEC on the synchronization of general population obligation imposed by Article 90(1), read in conjunction censuses, OJ 1981 L 385, p. 34. with Article 86, has direct effect.

12. The Netherlands Government sees further support for its restrictive interpre- tation of the power to adopt decisions, set 13. The applicants' final argument is to the out in Article 90(3), in the fact that, in effect that the Commission cannot claim contrast to Article 93(2) (which empowers any power to adopt decisions under Article the Commission to bring direct before the 90(3) because that provision offers no Court of Justice a Member State which does procedural guarantees on behalf of the not comply with a decision relating to State Member State concerned. The Commission's reply is that the absence of 24 — Although the Court is not called upon to decide this point written procedural guarantees cannot in any in the case now before it, it seems to me logical that the Commission should also be able, under Article 90(3), to event be decisive for the question whether, require a Member State to reconcile a rule of national law an article of the Treaty may form the legal' with a Treaty provision not having direct effect (such as Articles 3(f) and 5 — which were moreover referred to in basis for a measure of a Community the decision to which Case 226/87 related). Then the effect of such a measure is not to deprive such a nadonal institution (in other words- for that rule of its binding effect but simply to require the Member institution's powers). State to amend it. A directive addressed to the Member State concerned seems to be the most appropriate instrument for the purpose. 25 — See also footnote 27 infra.

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Although the absence of written procedural 14. Both applicants complain that the guarantees is thus not in principle an Commission infringed the rights of the obstacle to the Commission's powers, I defence during the procedure which should like to stress nevertheless that owing preceded the adoption of the contested to the legal effect, which in principle is decision. It is true that their arguments immediate (though not unchallengeable), of differ to some extent: the Netherlands measures which the Commission may adopt Government, to which the decision was when it finds that a provision of the Treaty addressed, complains that it did not have a has been infringed, it must exercise its sufficient hearing during the pre-litigation powers with special attention to respect for stage as regards the objections raised by the the rights of the defence and the principle Commission with regard to the new rules of the duty of care, in any case where (as is relating to the messenger services. PTT-Post the case here) its decision also has the effect BV, to which the decision was not of altering directly and individually the legal addressed but to which it is of direct and situation of (public) undertakings. That is individual concern (see section 5 above) all the more important since the claims that it had a right of its own to be Commission, in support of its claims to be heard by the Commission as to those fully entitled to adopt decisions under objections. Article 90(3), refers to the decision-making 27 — However, I should like to observe in this respect that the powers which it already possesses in the Commission's decision-making power in respect of context of Articles 85 and 86 on the one Articles 85 and 92 is more extensive than the similar power conferred by Article 90(3), under discussion in this case. hand and Article 92 on the other, and states Here we are dealing, as I have already said (section 10), in this connection that there must not be with a decision finding an incompatibility between national provisions and Treaty provisions having direct effect. In any loopholes in its powers of supervision as Articles 92(3) and 85(3) (in contrast to Articles 85(1) and 86) it is a question of decisions in which Treaty provisions not having direct effect are applied and such provisions 26 — Sec the judgment in Case 155/79 AM & S v Commission therefore confer direct effect as regards given national [1982] ECR 1575. measures of Sute aid or agreements between undertakings.

I shall first consider the arguments of particular tasks assigned to them, 29 so that PTT-Post BV, which do not seem to me to they may be assumed to be aware of any be justified. Decisions under Article 90 of proceedings pending and a special hearing the Treaty are adopted by the Commission for them is unnecessary; for undertakings in pursuance of its supervisory powers with receiving State aid that is not necessarily the regard to the Member States and are case. directed against measures of the Member States as regards public undertakings and undertakings to which they have granted special or exclusive rights. Article 90 imposes obligations only on the Member States, so that decisions adopted in pursuance of that article can specify only obligations falling upon Member States and not those imposed on undertakings by other Even though the Commission has no formal provisions of the Treaty. 28 Such decisions obligation to give such undertakings a may of course have repercussions on the hearing it must nevertheless take their material interests of such undertakings so interests specially into account in that in certain cases such decisions are of considering the observations of the Member direct and individual concern to them (as is State concerned, particularly when it knows, the case here with PTT-Post BV). That or ought to know, that the decision may be does not, however, mean that the of direct and individual concern to them. Commission is formally required to hear With specific reference to this case, the such undertakings before adopting its Commission has stated, without being chal- decision. That appears a contrario from the lenged, (i) that PTT-Post BV knew of the wording of Article 93(2) which in fact contacts between the Netherlands requires the Commission, before taking a Government and the Commission's officers; decision on the subject of State aids, to give (ii) that an (informal) discussion had taken notice to the 'parties concerned' to submit place on 5 October 1988 between officials their comments. I think that the difference of PTT-Post BV and those of the in these procedural guarantees may be Commission on the subject of the new explained by the different nature of the postal law; and (iii) that on 7 November the authorities' relations with public under- Commission had sent PTT a letter takings and undertakings endowed with expressing doubts as to the compatibility of special or exclusive rights on the one hand the draft law with the Treaty and and undertakings enjoying State aid on the mentioning a separate letter to the other. It may be assumed that undertakings Netherlands Government explaining its in the first category are closely linked to the objections. 30 P T T were then able to choose State, at least for the performance of the whether to make their own point of view known to the Commission, independently of the Netherlands Government, which the Commission would then have had to take

into account. But in the present state of minimum price rule for delivery services) Community law it is not possible to make that that provision '(seems) to conflict with any criticism of the Commission for not the EEC Treaty*.31. In that letter it also inviting PTT, on its own initiative, to announced that it would 'communicate its inform it of their standpoint. objections to these provisions officially to the Netherlands Government in a separate letter'. That separate letter took the form of a telex message dated 29 November 1988. 32 In that message the Netherlands 15. The Netherlands Government thinks Government is informed that the that its procedural rights have been ignored Commission's officers are of the opinion because the Commission has not given it a 'from a first investigation' that Articles 2 sufficient hearing. More specifically, it and 12 of the new postal law are incom- complains that the Commission, after a patible with Article 90 of the EEC Treaty, letter sent by the government on 16 January read in conjunction with Articles 30, 59, 85 1989, adopted the contested decision and 86 of the Treaty, on the ground that without any further contact; it contends that the new postal law (will) subject the there has never been a genuine exchange of provision of delivery services views (oral or written) between it and the Commission. The government also thinks it objectionable that after receiving its letter of 16 January 1989 the Commission made further contacts with a number of delivery 'to restrictive conditions which are greatly service organizations without informing it to the disadvantage of the (delivery) under- of the results of these talks. takings as compared with PTT's express delivery service (EMS), and will prevent them from continuing to provide some of their services, in particular those which were provided at a price below the minimum laid 16. To examine this submission it is down by law. necessary to consider carefully the course of the procedure prior to the adoption of the contested decision. According to the documents before the Court matters proceeded as follows. The condition in Article 12(2)(a) does not provide the least legal certainty for interna- tional delivery services.

In its telex message the Commission also expresses its views on the possible applica- bility of Article 90(2): on the basis of the facts available to it the Commission stated that the income received from express I regard the Commission's telex message as deliveries has only a secondary importance being supported on a legally insufficient for PTT and that the application of the foundation to be accepted as a document rules of competition therefore does not informing the Netherlands Government prevent it from performing the tasks appropriately of the considerations which assigned to it. The message ends by inviting finally led the Commission to declare in the the Netherlands Government to make its contested decision that the postal law was views known and with the statement that if incompatible with Community law. In that the factors set out in the telex message are respect I would call attention to the fact confirmed the Commission might think it that that declaration of incompatibility of appropriate to adopt a decision under the postal law in the contested decision is Article 90(3). exclusively based on the argument that the postal law conflicts with Article 90(1), read in conjunction with Article 86 (and no longer with Articles 30, 59 and 85 which were also mentioned in the telex message). In that respect reference is made in the The Netherlands Government replied to contested decision to the fact that PTT has that message by a letter of 16 January 1989. a dominant position on the market for basic After receiving the letter, the Commission postal services and that the postal law had discussions with a number of messenger results in (i) the extension of that dominant service organizations with regard to the position to the market for messenger Netherlands Government's reply and 'the services, with the risk that all competition foreseeable effects of the . . . provisions of will be eliminated from that market; (ii) that the new postal law on the activities of the unfair prices and conditions are imposed on (messenger) undertakings directly customers for delivery services; and (¡ii) that concerned'. 3 4 The contested decision was supply on the market for messenger services then adopted on 20 December 1989 without is restricted. The telex message of 29 any further consultation with the November 1988 bears no trace of this Netherlands Government. reasoning. It is true that in the telex message it is suggested, but by no means supported by any legal argument, that the draft postal law would contravene Article 90 read in conjunction with Article 86. The only 17. I think, having regard to the foregoing consideration of a legal nature relating to and more particularly to the content of the the application of the competition rules of Commission's telex message and to the the Treaty (namely that the minimum tariff subsequent contacts between the 'has the effect of . a price agreement Commission and the messenger service prohibited by the rules of the Treaty" relates to the validity of Article 85 and not of 34 — See the Commission's reply in Case C-48/90, paragraph Article 86. 32 at p. 19.

The absence of any argumentation on this delivery services in the Netherlands and that point seem to me to be the more serious the messenger service organizations were because the contested decision (as the given the opportunity in that connection to Commission itself readily admits) does not make their comments on the Netherlands make a routine application of the rules of Government's letter. In those circumstances competition but on the other hand amounts it cannot be seriously denied that the audi to a new step in the application of the alteram partem principle required the combined provisions of Article 90 and 86, a Commission either to involve the step based on an application by analogy of Netherlands Government in those the 'Telemarketing' judgment, 35 which is discussions or at least to acquaint the not even mentioned in the telex message. All government with the conclusions which it in all, it must therefore be stated that the had drawn from those discussions with legal arguments on which the contested regard to the compatibility of the new postal decision is based was worked out after the law with the Treaty.

18. The discussions which took place to define and defend its point of view with between the Commission and the messenger knowledge of the facts. I think therefore service organizations after the Netherlands that this amounts to an infringement of an Government had sent its letter of 16 essential procedural requirement so that for January 1989 also give food for thought. that reason the Commission decision must The Commission itself admits that those be declared void. However, in case the discussions related inter alia to the effects of Court should take the view that the the new postal law on the provision of Commission has in fact respected the Netherlands Government's rights of defence 35 — Case 311/84 CBEM v CLT and IPB[1985] ECR 3261. I must now consider the other submissions 36 — See the end of point 32 in its rejoinder in Case C-48/90. set out by the applicants.

21. According to the Netherlands (iii) the decision has no factual basis because Government and PTT-Post BV the it is based on incorrect perceptions of statement of the reasons on which the fact; contested decision is based is incom- prehensible because it uses incorrectly or ambiguously, or both, the essential concepts (iv) the operative part is too broad because of 'basic postal service', 'express post' (or it is not supported by the recitals to the 'express mail service') and 'express decision; moreover it is too vague messenger service'. They think that appears because it does not specify how the mainly but not exclusively from the fact that Netherlands Government is to comply the Commission thought it necessary to with its obligations under the Treaty. publish a number of 'corrigenda' to . the contested decision some time after it was adopted. 38 These 'corrigenda', which were published only in the Dutch version of the These complaints must be considered on the Official Journal of the European basis of the Court's consistent case-law according to which the purpose of the obli- 37 — See for example the judgments in Case 108/81 Amylum v gation imposed by Article 190 of the Treaty Council [1982] ECR 3107 at paragraph 19 and in Case 176/82 Nebe v Commission [1983] ECR 2475 at paragraph to state the reasons on which a Community 21. measure is based is on the one hand to 38 — The corrigenda were published in the Dutch version of the Official Journal of the European Communities of 2 February enable those concerned to determine 1990, p. 46.

22. Let me say straight away that I do not find the applicants' arguments about the impact of the corrigenda on the content of the contested decision altogether convincing. I think that in this case a distinction must be made between three Nor do these corrigenda either, contrary to types of corrigenda. A first type of the Netherlands Government's view, make corrigendum consists in obvious clarifi- any amendments to the substance of the cations or corrections of mistakes of contested decision. The terminological clari- language — as is the case with the two last fications or corrections which they make corrigenda, namely the replacement of the only confirm what was already clear from expression 'De artikelen 2 en 12' (Articles 2 the context of the decision. And here we and 12) 40 by 'De bepalingen van de must not lose sight of the fact that the artikelen 2 en 12' (The provisions of Articles meaning and the ways in which the defi- 2 and 12) and the correction of 'opgelegt' to nitions of the concepts of 'expressepost' 'opgelegd' — which naturally do not (express delivery) or 'expressevervoer' disclose any defect in the statement of the (transport of express deliveries) or again reasons on which the decision was based. 'expressedienst' (express service), 'spoedbe- steldienst' (express mail service) and 'koeriersdienst' (messenger service) differ from one another are not altogether clear and that that was even more the position 23. A second type of corrigendum is when the contested decision was adopted. designed to bring a greater uniformity into The reason is that we are dealing with concepts of services some of which have 39 — Cf. the judgment in Caie 131/86 United Kingdom v only recently developed and which are often Council [1988] ECR 905 ai paragraphs 31 io 39. characterized by rapid, continuous 40 — It is not contested that that amendment was made at the request of the Netherlands Government, which wished to evolution, so that it is not always easy to have it made clear that not ail the provisions of Articles 2 and 12 of the Postal Law, 1988, were affected by the distinguish one from another. So the declaration of incompatibility. descriptions used to designate these services

24. There is still a third type of corrigendum, namely the correction to the second line of Recital (4), in which 'speodbestelling' is replaced by 'koeriers- dienst'. It is clear that the original text of the decision contained an error of termi- 41 — In the official terminology of the World Postal Union too nology which this time is not excused by the the concepts of rapid delivery service and express mail are used without distinction one for another, as PTT-Post BV confusion between the expressions itself observes in its reply in Case C-66/90. 'expressepost' and 'koeriersdienst'. On the 42 — See the end of paragraph 30 of the defence in Case C-66/90. other hand it seems to me that it cannot 43 — It is true that in footnote 24 to the reply in Case C-66/90 seriously be stated that that terminological PTT contends that the actual establishment of these 'rapid error makes the statement of reasons incom- services' took place only on 1 June 1990, that is, after the decision was adopted. It does not deny, however, that the prehensible. The mistake occurs in fact in establishment of the service had been advertised as from December 1989. the first sentence of Recital (4) to the

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Commission's view that there are here three being had to the wording of the Postal Law, kinds of abuse within the meaning of Article 1988, and the actual situation at the time 86 of the Treaty. 46 In other words, if the the contested decision was adopted, it seems Court considers that the Commission was to me that the Commission's attitude was wrong in assuming that PTT was exempt, reasonable. one indispensable basis for the legal appreciation of the decision will disappear at a stroke, so that the application for the decision to be declared void would have to be granted. The main indication for this is that the postal law, as its structure and drafting show, is intended to establish two separate legal systems, one for the 'franchise holder' (that is, PTT Nederland N V or PTT-Post BV) 4 8 on the one hand and a system for 'undertakings other than the franchise holder' on the other hand. That difference in legal status is expressed in particular in 29. Let me point out that it is not the Article 12(2)(a) of the postal law which (objectively) correct interpretation of the forbids 'undertakings other than the Netherlands legislation which is at issue franchise holder' to transport letters here — a matter which only a national court weighing up to 500 g unless they satisfy all is in a position to decide. It is rather for the three of the conditions I have already Court of Justice to decide whether the mentioned (quality condition, minimum Commission, at the time at which it adopted price rule and registration condition). 49 the contested decision, could reasonably suppose that the three conditions laid down by the law did not apply to PTT. 4 7 Regard

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holder' also refers to PTT-Post BV when Courier), it would then be necessary to that undertaking is running a messenger establish whether that service was to be service. However, such an interpretation is regarded as an express mail service (coming hard to reconcile with the structure and under the exclusive franchise and therefore wording of the postal law since at the time not subject to the condition) or as a the law was enacted (26 October 1988) messenger service in the true sense of the P T T did not offer messenger services word. I shall give one example by way of through the intermediary of another illustration: it is not denied that until June separate undertaking clearly to be distin- 1990 PTT was offering an -express mail guished from itself (for example a legal service with home collection. In view of that person separately incorporated and admin- additional facility it is logical to regard such istered): the express transport services a service as equivalent to a messenger offered by PTT towards the end of 1988 service. But it then appears that that service were entirely integrated into PTT them- does not comply with the quality condition selves and used their infrastructure (post or in particular the requirement that it must offices, post vans and the like), their be possible to 'keep track of the communi- facilities (exemption from turnover tax for cation during transit', because that express dealing with consignments within mail service with home collection was not Netherlands territory) and their trade name effected by means of a so-called 'tracking PTT. and tracing' system. Such a system was brought into operation, as P T T themselves state, 50 only on 1 June 1990, so that P T F s other rapid services at the time the decision was adopted (including the 'old style' EMS) did not comply with the quality condition either. 51 It was therefore logical for the Commission to conclude from that situation in December 1989 that PTT-Post BVs rapid services were simply not subject to the quality condition.

31. The only evidence supporting the suppose, in the contested decision, that applicants' statement is a 'nota van PTT-Post BV was not subject to the toelichting' (explanatory note) to the Besluit conditions laid down by the Postal Law, Minimumtarieven Koeriersdiensten 52 and a 1988, for the provision of messenger passage from the preparatory documents for services from or to Netherlands territory. the law. 53 But those documents are far from That means that in the following obser- conclusive. Thus the representative of the vations (section 35 et seq.), I shall have to interveners NOB and NVLK remarked at appraise the justification for the decision on the hearing that during the procedure in the assumption that there was indeed parliament the Minister for Transport, discrimination against private messenger Water Control and Construction had services as compared with PTT. proposed the insertion in Article 13 of the law a system of individual exemptions from the exclusive franchise for private messenger services. Only at the end of the parliamentary procedure was that system changed to a generic exemption inserted in Article 12(2) — in other words the history (d) The operative part of the decision of the drafting of Article 12(2) certainly does not suggest that these exemptions were drafted also for any express messenger services which PTT themselves might run. Moreover, and above all, the Commission might very well work on the principle that 32. The Netherlands Government and the preparatory documents can in no way PTT-Post BV have claimed first that the justify an interpretation contra legem. operative part of the decision is too vague Moreover it is significant that the because it contains no indications as to what Netherlands Government, as it indicates in measures the Netherlands Government its reply in Case C-48/90, is to lodge with should take to bring the alleged the Netherlands States General, 'because of infringement of the Treaty to an end. questions which have arisen', a draft law amending the postal law 'for the avoidance of further doubt with regard to the obli- gation of P T T in the matter'.

The applicants' complaint would be appro- priate only if they were to show that the 33. The applicants further claim that the Commission's analysis under Community operative part of the contested decision is law of the State measures in question is so too wide because, in two respects, it is not vague or involved, or both, as to make it supported by the statement of reasons. They impossible for the Member State concerned complain in the first place that the operative to discover how to put an end to the part is not directed only against the infringements established. However, nothing minimum price (HFL 11.90) for destinations of that kind has been shown by the within the Community but also against the applicants in these proceedings. The minimum price (HFL 17.50) for destinations contested decision is in fact directed against outside the Community. the statutory preferential system enjoyed by Pi'l'-Post BV if it offers messenger services, regard being had to the consequences of such discrimination on competition on the market for messenger services (see the detailed explanations in Recitals (11) to (18) inclusive with regard to abuse of a dominant That complaint seems to me to be well position, to the consequences thereof on founded. That part of the recitals to the trade between Member States and to the contested decision relating to the incompati- fact that the derogation provided for in bility of the minimum price rule with the Article 90(2) is not applicable). It is for the combined provisions of Articles 90 and 86 Netherlands Government to take the relates specifically to the minimum rate in necessary steps, if the Court rejects this force for destinations within the application, to bring this infringement of the Netherlands or in other Member States of Treaty to an end. The most obvious step is the Community (see in particular Recital naturally to abolish the existing discrimi- (15)). Although it cannot be excluded that nation and to substitute for it other rules these considerations apply also to the which do not involve an infringement of minimum rate for messenger services Article 90 in conjunction with Article 86 of the Treaty. Exactly what the new rules must 55 — Such difficulties may possibly relate also to the time-limit be is, as I say, not a matter for the imposed by the decision in question for its implemen- tation — as the Netherlands Government complains that Commission but for the Netherlands the period prescribed by the contested decision is Government. That naturally does not extremely short. prevent the Netherlands Government, if it 56 — In the field of aid measures the Court has already confirmed this on several occasions. See for example the wishes, from addressing the Commission in judgments in Case 94/87 Commiision v Germany [1989] ECR 175 at paragraph 9 and in Case 52/84 Commission v order to discuss with it the acceptability of Belgium [1986] ECR 89 at paragraph 16.

between the Netherlands and countries number of letters collected in the outside the Community, that does not Netherlands'. relieve the Commission of the duty to give the reasons for its decision on this point. That is true in particular when such an application by analogy is not obvious: thus one may wonder for example whether the minimum rate for messenger services In other words the decision merely gives a between the Netherlands and countries general description of the effect of the outside the Community is of such a nature requirement to register on the operations of as to affect trade between Member States. private messenger services. It is true that this The contested decision, and in particular effect is represented in the recitals to the Recital (15) do not contain the least infor- contested decision as being unfavourable, mation in this connection, so that the but there is no relevant legal interpretation. statement of the reasons on which the The part of the preamble which relates to contested decision is based cannot be the infringement of the combined provisions regarded as sufficient on that point. of Articles 90 and 86 of the Treaty actually deals exclusively with minimum rates and the quality condition but does not devote a single word to the requirement to register. Contrary to what the Commission contends, that legal analysis cannot simply be applied 34. According to the applicants, the by analogy to the requirement to register: operative part of the decision is too broad in thus, for example, it is hard to see, without yet another respect, namely in so far as, any statement of reasons, why such a without any appropriate statement of requirement should result in a portion of the reasons, it declares incompatible with the market for messenger services being Treaty the obligation for messenger services reserved for PTT-Post BV, 57 or why it to register their rates in advance. should require customers of messenger services to use the PTT-Post BV express mail services,58 or again why it should prevent the private messenger undertakings from offering a complete range of I think that this complaint is also justified. messenger services.59 In the preamble to the contested decision the requirement to register is mentioned only in the last paragraph of Recital (1). There the Commission states that the obli- gation to register: Thus, in so far as the contested decision relates to the minimum price rule for desti- nations outside the Community and to the requirement to register imposed on private messenger undertakings by the Postal Law, 'is designed to prevent any variation in 1988, it must be declared void for lack of a charges negotiated with important customers. It particularly affects under- 57 — Cf. die firet paragraph of Recital (11) to the contested takings located outside the Netherlands as decision. they will be obliged to register their rates 58 — Cf. Recital (12) to the contested decision. 59 — Cf. the first paragraph of Recital (14) to the contested annually at The Hague, irrespective of the decision.

sufficient statement of the reasons on which exclusive franchise for the transport of it is based. 60 letters not exceeding 500 g. 61 The abuse consists, according to the Commission, in the extension of that dominant position by the postal law to the market for messenger services, involving the possibility of elimi- D — Examination of the submissions on the nating all competition from that market. 62 substance The contested decision further states that PTT-Post BVs newly created dominant position on the market for messenger services involves two additional abuses. 1. Absence of conduct by the undertaking First, undertakings which wish to continue to use the private messenger services have unfair prices and conditions imposed upon them because they must either pay a minimum rate for doing so or because they 35. According to the applicants, the can only obtain a rate below the minimum Commission makes an incorrect application by using PTT-Post BV. 63 Secondly, supply in the contested decision of the combined on the market for messenger services is provisions of Articles 90 and 86. In fact they restricted because the high added value deny that those two provisions can be services offered by private undertakings can applied to a restriction of competition not now only be offered at the minimum rate resulting from the conduct of an under- and because the quality condition prevents taking but simply from a measure of the private undertakings from offering a full authorities. range of rapid services.64 The restrictions on competition identified in the contested decision are not due — as the parties agree — to the conduct of PTT-Post BV; To understand this submission correctly it is the decision rather regards such restrictions necessary to consider in greater detail the as resulting from the fact that, unlike the relevant part of the recitals to the decision private messenger undertakings, it is not (namely Recitals (6) to (18]. According to subject to the three conditions laid down by the Commission the aforementioned the postal law for the provision of delivery provisions of the Postal Law, 1988, infringe services. In other words, the restrictions on Article 90 in conjunction with Article 86 competition are the result of direct inter- because their effect is to create a dominant vention in the structure of competition by position by PTT-Post BV on the market for the Netherlands legislature, which applies a messenger services. The starting point here more favourable system to the operations of is that PTT-Post BV has a dominant position on the market for basic postal services as a consequence of its statutory

one particular undertaking (P11-Post BV) rights granted by them to undertakings for than to those of its competitors. According the marketing or maintenance of telecom- to the Commission, that intervention in the munications terminal equipment in view of structure of competition has the same effect the fact that such rights constituted an on the Community market as conduct by an infringement of Article 30 of the Treaty. In undertaking which is prohibited by Article the same way the Commission would have 86, and that is sufficient for the application been entitled, in the contested decision, to of Article 90. In the following sections (36 declare the registration condition laid down to 46) I shall discuss first that question of by the postal law incompatible with Article principle, namely whether the Commission 90 in conjunction with Article 59, regard is also entitled to take action under Article being had to the serious restrictions which 90 against distortions of competition which that condition imposes on messenger service result in the first place from the conduct of undertakings from other Member States a Member State. which desire to offer their services in the Netherlands. However, the Commission chose to test the postal law against, and declare it incompatible with, a provision of the Treaty (Article 86) which, according to its wording and purport, concerns the conduct of undertakings and not the legal or administrative measures adopted by Member States. Did Article 90 empower it so to do? That is the sole extent of the question which now needs to be considered.

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68 — Sec for example the judgment in Case 229/83 Leclerc v Au Thirdly, a Member State may impose on Blé Vert [1985] ECR 1 at paragraphs 13 and 14. 69 — See for example the judgment in Case 267/86 Van Eycke v undertakings conduct which is incompatible ASPA [1988] ECR 4769 at paragraph 16. with Articles 85 and 86. The Court dealt 70 — See paragraph 32 of the judgment in INNO v ATAB. 71 — That principle, which was already laid down in general 72 — Ahmed Saeed Flugreisen v Zentrale zur Bekämpfung terms in the judgment in Case 155/73 Sacchi [1974] ECR unlauteren Wettbewerbs [1989] ECR 803. 409, was recently confirmed in the judgments in Case C-202/88 (previously cited in footnote 18) at paragraphs 73 — See the judgment in Case 267/86, previously cited in 22 and 34 to 44; and in Case C-260/89 ERTi 0£/>[1991] footnote 69, at paragraph 16. ECR 1-2925 at paragraphs 24 and 31. 74 — See paragraphs 5 to 8 and 17 to 19 of the judgment.

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39. It appears, I think, from that case-law that the Court's view is that the provisions of Article 90, in conjunction with those of Fourthly, a State measure may influence the Articles 85 and 86, cover State measures structure of competition in such a way that (relating to public undertakings and under- it makes inevitable conduct prohibited by takings to which Member States grant Articles 85 and 86, which means, in other special or exclusive rights) which encourage, words, that an undertaking is induced to require or make inevitable conduct by adopt such conduct. Such a measure was at undertakings which, whatever its nature, is issue in Case C-41/90 Höfiier and Elser77 in prohibited by Articles 85 and 86, and which the Court was called upon to measures which delegate to undertakings a consider German legislation conferring on a duty of regulating competition such as public employment office an exclusive right ought to be performed by the authorities. to engage in employment procurement The consideration that such State measures, (including executive recruitment activities). in combination with one form or another of The Court held that such legislation was conduct by an undertaking, have the same incompatible with the combined provisions effects with regard to the strutture of of Article 90 read in conjunction with competition on the Community market as Article 86 where the public employment conduct by an undertaking which is uncon- office was manifestly incapable of satisfying nected with action by the public authorities. demand prevailing on the market for such It appears further from that case-law that activities and where at the same time the conduct by an undertaking which is legislation made it impossible for private necessary as a 'link factor' to make Article 90(1) applicable in conjunction with Article 75 — Bodson v Pompes Funèbres des Relions Libérées [1988] ECR 2507. 76 — See paragraphs 30, 33 and 34 of the judgment. 78 — Already cited in footnote 71. 79 — Paragraph 37 of the judgment. 77 — [1991] ECR 1979.

85 or 86 need not necessarily precede action by the authorities and conduct by an under- by the public authorities but may follow it, taking may be so close that they merge, as result therefrom or even be the inevitable the judgment accepts that the action of a consequence thereof. Nor is it necessary for public institution such as the German the undertaking itself to have committed an Bundesanstalt für Arbeit must be regarded intentional infringement of the rules of as conduct by an undertaking such as is competition (in other words, it is enough referred to in Articles 85 and 86 because it for it to be placed in a situation in which it is the act of an entity exercising an cannot act otherwise than by restricting economic activity, even though such activity competition). Thus in his Opinion in Case is normally entrusted to public institutions C-41/90 Höfner and Elserw Mr Advocate and not to undertakings. 83 General Jacobs indicated that the Bundes- anstalt^ conduct in itself could not be regarded as abusive: there was nothing to suggest that it had not endeavoured to the best of its ability to satisfy the demand for assistance in the recruitment of executives; by voluntarily relaxing its monopoly it had even sought to open the market to other operators as far as possible. However, as the Advocate General stressed, the combined effect of the monopoly set up by the auth- 40. Having regard to the foregoing orities and the Bundesanstalt's failure to considerations, my view is that the satisfy demand was that the consumer could applicants' argument must fail in so far as it not receive the service which would have aims to exclude from the application of been available on a competitive market. In Article 90 conduct by undertakings which, such a case there is, in the view of the like PTT-Post BV's activities, is for the Advocate General, an infringement of undertaking concerned the inevitable conse- Article 90 in conjunction with Article 86. 81 quence of State measures and which (in In its judgment the Court approved that combination with those measures) has view — which gives a very wide interpre- exactly the same consequences for compe- tation of the 'effectiveness' of Article 86. 82 tition on the Community market as the conduct of an undertaking which is prohibited by Articles 85 and 86 irrespective of any action by the authorities. As a result of that conclusion I must now consider whether the Commission was right in the contested decision to conclude that the Postal Law, 1988, in conjunction with the conduct of PTT-Post BV which is its inevitable consequence — conduct which is not denied since PTT-Post BV did indeed strive, and is still striving, to develop a complete express messenger service within the framework of the postal law — has for The judgment in Höfner and Eher also competition on the market for messenger shows that the interrelation between action services the same consequences as the abuse of a dominant position prohibited by Article 80 — See his Opinion, delivered on 15 January 1991, at 86. As I have previously stated (section 31), paragraph 45. 81 — See paragraphs 46 and 47 of his Opinion. 82 — Paragraph 31 of the judgment. 83 — Paragraphs 20 to 23.

42. This reasoning does not convince me, not, let me admit right away, because of the 41. It cannot be seriously denied that the legal basis, which I acknowledge is correct. granting of the exclusive franchise gave The legal basis is that the Commission PTT and PTT-Post BV a dominant position states, by reference to the judgment in Case on the market for basic postal services in the 311/84 CBEM v CUT and IPBi7 (which I Netherlands. 84 The Commission also seems shall hereinafter refer to as 'the "Telemar- to me to be right when it regards the market keting" judgment'), that abuse of a for basic postal services and that for dominant position is committed 'where an messenger services as two separate (even undertaking holding a dominant position on though associated) markets. Messenger a particular market reserves to itself or to an services have a greater added value and undertaking belonging to the same group an satisfy different needs from the basic postal ancillary activity which might be carried out services; those two types of service are by another undertaking as part of its acti- therefore not interchangeable. 85 vities on a neighbouring but separate market, with the possibility of eliminating all competition from such an undertaking'. That is, according to the Commission, exactly the effect of the Postal Law. 88 According to the contested decision the first factor leading to an abuse is the fact that the Postal Law, 1988, involves the extension of that dominant position of PTT-Post BV on the market for basic postal services to In principle I agree with that reasoning. It the market for messenger services. That may in fact be seen from the 'Telemar- extension consists in reserving for PTT-Post keting' judgment that according to the BV a 'whole section' of the market for Court there is an abuse of a dominant messenger services, namely the market for position where an undertaking holding a mail at less than HFL 11.90, whereas dominant position on the market in a previously the post was in competition with service (namely the market for televised private messenger services on that portion of 86 — See Recital (11) to the decision. 84 — See Recital (10) to the contested decision. 87 — Previously cited in footnote 35. 85 — See Recitals (3) and (4) to the contested decision. 88 — First paragraph of Recital (11) to the contested decision.

broadcasting of advertising 'spots') which is which the Court accepted for the first time indispensable for the activities of another that an abuse within the meaning of Article undertaking on an associated but separate 86 may consist not only in conduct on the market (namely the market for telephone market but also in conduct changing the marketing by means of television)89 actually structure of the market by making it less uses that dominant position on the first competitive. In that case it was a question market to reserve to itself also services on not of another market for products but of a the second market, with the possibility of different geographical market. 93 eliminating all competition from that second market. 9 0 In other words, the extension of a dominant position has been made possible by the fact that the second market could function only through the intermediary of the first market (on which the undertaking had a dominant position). With this position the 'Telemarketing' judgment links up expressly with the judgment in Joined Cases 6 and 7/73 Commercial Solvents v Commission91 relating to a similar situation, although on that occasion in connection with the market for products. In that judgment the Court stated that an under- taking, being in a dominant position on a market for raw materials and refusing to supply a customer on a 'downstream' market (a market for derivatives), with the The fact that the market to which the object of reserving such raw materials for dominant position has been extended in this manufacturing its own derivatives, is abusing case is an 'associated but separate' market its dominant position on the raw materials and not (as was the case in the 'Telemar- market if such conduct risks eliminating all keting' or Commercial Solvents cases) a competition from a customer on the derived 'derived' market — so that the dominant products market. The characteristic of these position of PTT-Post BV on the market for two judgments is that they regard a 'refusal basic postal services does not stand in a to deal' by an undertaking with a dominant causal relationship with the acquisition of a position as abusive not only when the dominant position on the market for refusal is intended to derive unfair messenger services — does not seem to me advantages from that dominant position (for to be relevant for the application of Article example unreasonably high selling prices), 86. In the Continental Can v Commission but also when its purpose is to strengthen case the Court already decided that it was that dominant position by extending it to an not necessary that there should be a causal associated but separate market and conse- link between the dominant position of an quently to acquire a dominant position on undertaking and the abuse thereof, in view that market also. In that sense this case-law of the fact that strengthening of the is a continuation of the judgment in Case dominant position of an undertaking may, 6/72 Continental Can v Commission, 92 in regardless of the means and procedure by which it is achieved, in itself be an abuse

(and therefore prohibited under Article 86), (which differs from the second only as a namely when such strengthening fetters result of the minimum rate fixed) is closed competition in such a way that only under- to competition. The abuse alleged by the takings remain in the market whose Commission concerns only the third market. behaviour depends on the dominant one. 94 The contested decision states that the postal Such is precisely the effect of the law, by reserving the last named (subsidiary) Netherlands postal law, which the contested market for PTT-Post BV, has extended the decision declared incompatible with Article dominant position of PTT-Post BV on the 86 in conjunction with Article 90(1). market for basic services to a 'whole section' of the market for messenger services. However, no figures are given in support of that statement. The Netherlands Government rightly indicates that the minimum rate of HFL 11.90 is fixed at a very low level. Although there is serious evidence that it is possible to provide messenger services at a price below that minimum rate (for example by quantity discounts), it is hard to deny that such services — at least during the period relevant for the proceedings — constitute only a very small part of the market; 95 and there are no indications that there is likely 43. If the recitals to the contested decision to be a change in the near future. Nor can on the existence of an abuse do not it, in view of the modest level of the convince me, it is not because of the legal minimum rate, reasonably be assumed that arguments but of the appreciation of the the subsidiary market reserved for underlying facts. That appreciation starts PTT-Post BV will supply it with such out with the idea that the market for income as to enable it to adopt a stance messenger services at a rate less than HFL independent of its competitors on the other 11.90 for the despatch of letters not subsidiary markets. exceeding 500 g forms an important part of the market for messenger services. The abuse is alleged to consist of extending the postal monopoly on the market for basic postal services to that important part of the market for messenger services so that the post acquires a dominant position on that market too. I think that that appreciation of the facts is inappropriate. The market for messenger services consists, according to the contested decision, of three subsidiary From the foregoing considerations it markets: the market for items above 500 g, appears therefore that (i) the extension of the market for items of a maximum of PTT-Post BVs monopoly to the market for 500 g at HFL 11.90 and the market for messenger services does not cover their items of a maximum of 500 g at less than main subsidiary markets (for items above HFL 11.90. The first subsidiary market is 500 g and those below 500 g from HFL not controlled, the second is controlled but 95 — Annex 1 to PTT-Post BVs application in Case 66/90 is is open for competition and only the third interesting in this respect; it consists of a table setting out a number of prices charged by private messenger services. The lowest rate for sending a letter between Amsterdam 94 — Sec paragraphs 26 and 27 of the judgment. and Rotterdam appears to be HFL 30.

44. Three other forms of abuse identified in the contested decision under the above heading may be considered together. According to the Commission the discrimi- natory imposition on the private messenger undertakings of the minimum rate means that (i) undertakings which previously chose to make use of the private undertakings 45. The effect on competition described (thinking that the postal services did not here by the contested decision seems at first cater as adequately for their needs as sight to be analogous to the effect of the regards either price or quality) are German legislation which the Court in its compelled, since the Postal Law, 1988, to judgment in Hafner and Eher (sections 38 make use of Pi'l'-Post BVs messenger and 39 above) regarded as an abuse within services for their consignments up to 500 g the meaning of Article 86. The postal law in the category of prices not exceeding HFL too lays down a monopoly on part of the 11.90 on the terms laid down by PTT-Post market for messenger services and makes BV, whether or not they correspond to their infringements of the monopoly punishable, needs. % That discrimination also means (ii) with the result that users of the messenger that the number of suppliers of services in services are bound either to have recourse to that price category is limited to one and that an undertaking which, as regards quality, the quality of the services offered in that 97 — Recital (13) to the contested decision. 96 — See Recital (12) to the contested decision. 98 — First paragraph of Recital (14).

47. Although the contested decision is 46. Finally a fourth form of abuse is based on correct premises, it makes an mentioned in the contested decision, namely incorrect factual application of Article 86, that the quality condition places private because it shows insufficiently that the messenger undertakings in a position of Postal Law, 1988, induces or may induce legal uncertainty: in so far as PTT-Post PTT-Post BV to extend its dominant BV's 'express deliveries' (that is, the 'EMS' position on the market for basic postal services) reach a comparable level of quality services to the (whole) market for in future, private messenger undertakings messenger services. In the absence of such would be forbidden, according to the letter an extension of a dominant position, the of the law, to deal with such items except in mere fact that the Postal Law, 1988, the case of packages exceeding 500 g. " reserves to PTT a portion of the market for messenger services cannot be described as an abuse, nor can the other effects of the minimum price rules and the quality condition to which the Commission takes exception be described as abuses of a dominant position on the market for messenger services. Although I might bring my Opinion to an end with this finding, I Here the reasoning seems to be that the shall now — in case the Court needs it in Postal Law, 1988, gives PTT-Post BV the developing the grounds of its opportunity, by improving the quality of its judgment — go briefly into the question whether any abuse may be justified under 99 — Second paragraph of Recitat (14). Article 90(2) of the Treaty.

50. First the decision refers to the favourable trend of turnover and profits 48. In the contested decision the during the years before the decision. From Commission adopted the position that it is those figures the Commission deduces that for the Member State concerned to show there is no evidence 'that maintaining the that the conditions for the exemption set competitive situation existing prior to the out in Article 90(2) are in fact met.10° The new law would jeopardize the basic postal Netherlands Government emphatically service and that the measure in question is denies that, but in my view wrongly. critical for the financial viability of the post Although it is true that the Commission has office'. 1 0 2 the duty of considering whether Article 90(2) should be applied, 1 0 1 it cannot reasonably be expected to investigate of its own motion all the circumstances which might possibly give rise to the application of the derogation in Article 90(2). The Netherlands Government first raises the objection that 'the mere fact of making a profit does not necessarily mean that it is no longer possible to rely on Article 90(2)'. 1 0 3 In doing so it fails to understand the essential feature of the Commission's argument, which attributes the non-applica­ bility of Article 90(2) in this context to the volume of profit made by the post office, which in its view shows that a competitive 49. Recital (17) to the contested decision situation such as that which prevailed at the deals with a fact which, according to the time the new law came into force does not Netherlands Government, would exclude endanger the operation of the basic postal the application of the competition rules. The service or the financial viability of the post Netherlands had referred to the fact that office. competition between private messenger undertakings and P T T in the field of messenger services would result in only the less financially attractive destinations being left for P T T . It would therefore be impossible to guarantee for the post office The Netherlands Government further the necessary income to perform properly contends that the Commission wrongly took the duty of transport entrusted to it. as its basis figures from the period before the postal law came into force. That 100 — See the end of Recital (16) to the contested decision. 101 — For further detail see my Opinion delivered on 19 September 1991 in Case C-179/90 Mera Convenzionali 102 — See the second paragraph of Recital (17) to the contested Porto di Genova v Siderurgica Gabrielli [1991] ECR decision. 1-5889 at sections 26 to 28. 103 — See the application in Case C-48/90, top of p. 21.

argument too is misconceived: it was to, it does not seem that the performance of obvious that to assess the applicability of the task of general interest entrusted to Article 90(2) the Commission would take PTT-Post BV necessitated the granting of a into account figures showing PTT's further competitive advantage. competitive viability at the time the new law came into force. The fact that before the new law PTT had a theoretical monopoly of messenger services for letters not exceeding 500 g does not mean that on the eve of the application of the new law there was in fact no vigorous competition with regard to those services. So the figures used by the Commission were indeed relevant. 52. Thirdly and lastly the fact that the post office is not obliged to provide its services throughout the Netherlands at the same rates, which it in fact does not do, as it offers certain customers large discounts (so-called 'contractual discounts') makes it appear, according to the contested decision, that PTT-Post BV is entirely capable of facing competition from private under- takings. Once more, the parties entirely disagree as to the amount of these discounts but their existence is not denied. 104 My view is that the contested decision correctly mentions that the existence of discounts shows that PTT, like its competitors, is in a 51. In the second place the Commission position to take account of differences in took the view in the contested decision that costs in fixing its rates. This too shows that Article 90(2) was not applicable because the the performance of the duty of transport post office already possessed, in fact or by imposed on PTT-Post BV does not prevent the operation of law, substantial advantages PTT from reacting appropriately to market in carrying out its tasks, so that the trends. extension of its dominant position to the messenger service market could not objec- tively be a necessity for its performance of that task. The parties entirely disagree as to the actual impact of those advantages, but this discussion does not seem to be very important: it is in fact established that the exemptions and economies of scale available to PTT (in particular exemptions from I therefore concur with the Commission's statutory obligations regarding transport of view that Article 90(2) is not applicable and goods and driving hours; economies of scale that PTT-Post BV's monopoly over a through the use of the same workforce and portion of the basic postal service is the same infrastructure for a varied range of sufficient to guarantee that its public service postal services) already had the effect of obligations are fulfilled (see Recital (18) to strengthening its competitive position as the contested decision). compared with its private competitors and their financial situation. Regard being had 104 — Sec for example the Netherlands Government's to the factor of profitability already referred application in Case C-48/90, bottom of p. 21.

Alternatively I think that a number of other grounds put forward by the applicants for declaring the decision void are well founded. Thus it appeared earlier that the Commission wrongly found that there was an infringement of the provisions of Article 90 in conjunction with Article 86 of the Treaty because it did not suffi- ciently show that by the Postal Law, 1988, PTT-Post BV acquired or threatened to acquire a dominant position on the whole of the market in messenger services, so that it is not possible to conclude that there is an extension of a dominant position or an abuse of a dominant position on the market in messenger services. I think, moreover, that the statement of the reasons on which the contested decision was based is insufficient in so far as it declared that (i) the minimum price rule for destinations outside the Community and (ii) the obligation for messenger services to register their rates in advance are incompatible with the provisions of Article 90 in conjunction with Article 86 of the Treaty. There is no need to give a separate decision on the claim that the corrigenda should be declared void since the decision itself must be declared void.

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