C-340/99

OPINION OF MR ALBER — CASE C-340/99

OPINION OF ADVOCATE GENERAL ALBER delivered on 1 February 2001 1

I — Introduction Community law that applied to the case. A legislative framework for the universal postal service and for other postal services was provided for for the first time in 1. The national court requests the Court Directive 97/67/EC of the European Parlia- for a preliminary ruling on the interpreta- ment and of the Council of 15 December tion of Articles 86 and 90 of the EC Treaty 1997 on common rules for the development (now Articles 82 and 86 EC) with regard to of the internal market of Community postal the Italian rules in force in 1997, when the services and for the improvement of quality dispute in this case arose, concerning the of service.2 As the events in this case relationship between the Italian Post Office occurred in 1997 and the Directive had to as a provider of a universal service and a be implemented only by February 1999, it private undertaking that provides postal is not directly applicable to the case. services. The latter was, for every letter However, it is appropriate to refer to some carried by its express courier service, of its provisions. It must at least be required to pay to the Italian Post Office assumed that they implement general prin- in essence a charge in the amount of the ciples of Community law. postage charged by the Italian Post Office for its equivalent ordinary letter service. This was done by franking, either with postage stamps or with a franking machine.

3. Article 1 describes the content of Direc- tive 97/67:

— the criteria defining the services which vices which may be reserved by each may be reserved for universal service Member State for the universal service providers and the conditions governing provider(s) shall be the clearance, sorting, the provision of non-reserved services, transport and delivery of items of domestic correspondence, whether by accelerated delivery or not, the price of which is less than five times the public tariff for an item of correspondence in the first weight step of •—· tariff principles and transparency of the fastest standard category where such category exists, provided that they weigh accounts for universal service provi- less than 350 grams... sion,

— the setting of quality standards for (2) To the extent necessary to ensure the universal service provision and the maintenance of universal service, cross- setting-up of a system to ensure com- border mail and direct mail may continue pliance with those standards, to be reserved within the price and weight limits laid down in paragraph 1.

— the harmonisation of technical stan- dards, (3)...'.

— the creation of independent national 5. Article 9(4) of Directive 97/67 regulates regulatory authorities.' the conditions under which Member States may provide a fund to compensate for the burdens of a universal postal service:

4. Regarding the demarcation between the monopoly of the undertaking that main- tains a universal postal service and the 'In order to ensure that the universal service sector open to competition, Article 7 of is safeguarded, where a Member State Directive 97/67 provides: determines that the universal service obli- gations, as provided for by this Directive, represent an unfair financial burden for the universal service provider, it may establish a compensation fund administered for this '(1) To the extent necessary to ensure the purpose by a body independent of the maintenance of universal service, the ser- beneficiary or beneficiaries. In this case, it

9. The Commission also set out the follow- ing definition in the Notice: 6. However, this financing permission must be read in conjunction with the provisions of Article 14 of Directive 97/67, according to which the universal service providers must separate reserved and non-reserved sectors, as well as services which are part of the universal service and services which are ' "express mail service": a service featuring, not, in their accounting records. in addition to greater speed and reliability in the collection, distribution, and delivery of items, all or some of the following supplementary facilities: guarantee of deliv- ery by a fixed date; collection from point of origin; personal delivery to addressee; pos- 7. Even before then, the Commission had sibility of changing the destination and for a long time favoured the separation of a addressee in transit; confirmation to sender universal postal service protected by a of receipt of the item dispatched; monitor- monopoly and a competitive market. 3 ing and tracking of items dispatched; personalised service for customers and provision of an à la carte service, as and when required. Customers are in principle prepared to pay a higher price for this service;...'. 8. Immediately before Directive 97/67 came into force, the Commission stated in its Notice on the application of the compe- tition rules to the postal sector and on the

3 — As early as in the third and fourth recitals in the preamble to Commission Decision 90/16/EEC of 20 December 1989 10. On 30 May 2000, the Commission concerning the provision in the Netherlands of express delivery services, OJ 1990 L 10, p. 47 (repealed for a published a proposal for a Directive of the procedural defect by the judgment in Joined Cases C-48/90 and C-66/90 Netherlands v Commission [1992] ECR I-565) European Parliament and of the Council to and the second and third recitals in the preamble to Commission Decision 90/456/EEC of 1 August 1990 con- cerning the provision in Spain of international express courier services, OJ 1990 L 233, p. 19. 4 — OJ 1998 C 39, p. 2, Nos 2.3 and 2.4.

collection, carriage and delivery of letter post,...' Any person who habitually entrusts letter post to third parties for carriage or delivery 5 — COM (201)0) 319 final. shall be liable to the same penalty...

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Correspondence conveyed in breach hereof 15. In addition to these provisions, the shall be confiscated and immediately deliv- Commission refers to Circular No 4 ered to a post office and a report of the DCSP1/1/35466/100/89 of the Italian Min- breach shall be drawn up at the same time.' ister for Post and Telecommunications of 4 March 1989. 6This reads as follows:

14. Into this system the Italian legislature 'For the purpose of implementing Arti- introduced, in Article 41 of the Postal cles 86 and 90 of the EC Treaty, which was Code, an exception to the rule which approved by Law No 1203 of 14 October precisely defines situations and activities 1957, the provision of services involving to which the penalties provided for in the collection, carriage and delivery of Article 39 of the Postal Code are not letter post by private international courier applicable. services shall, with effect from the day on which this notice is published in the Official Gazette of the Republic of Italy, no longer be subject to the exclusivity rule in Article 1 of Decree No 156 of the President of the Republic of 29 March 'Article 39 shall not apply to 1973, but only to the extent that

— the services are provided by persons (a) ... whose business is conducted interna- tionally;

17. Italy implemented Directive 97/67 by 20. The plaintiff gives more detailed infor- Legislative Decree No 261 of 22 July 1999, mation on these points. According to it, the which was not applicable at the time of the plaintiff delivered letters throughout a large facts of the case, and accordingly repealed part of the country (6 000 districts) within Article 41 of the Postal Code. 24 hours, and to areas more difficult to reach (in particular the Italian islands) at the most within 72 hours. Its prices were significantly higher than the tariffs of the Italian Post Office, indeed in some instances significantly over the limit of five times the price of the basic postal service, 18. The Italian Post Office was originally a which Directive 97/67 states to be the limit branch of the public administration, before of the reserved sector. Additionally, the being transformed by a statute of 1994 into plaintiff offered insurance, payment on a public law corporation — the Ente Poste delivery, storage of uncollected post and, Italiane — and finally, after the events on request and for an additional charge, leading to the current dispute, into a public collection of post from the sender. limited company — Poste Italiane SpA — with effect from 28 February 1998.

21. Moreover, the plaintiff maintains that the Italian Post Office itself offers an III— Facts express courier service and thus competes directly with it and with other private express courier services. The only conces- sion the Italian Post Office makes is that it offers, on the basis of Decree No 564 of 19. The plaintiff, TNT Traco SpA, offers 28 July 1987, 7 an internal fast service postal services in Italy. It provides an ('Postacelere interna'), which it claims express courier service throughout the fulfils but few of the criteria of an express country. According to the information courier service. It is to be noted that a fast provided by the national court, this express city service ('Postacelere urbana') was service distinguished itself at the time of the relevant events from the usual delivery service of the Italian Post Office by the 7 — GURI No 24 of 30 January 1988.

8 — Decree No 563, GURI No 24 of 30 January 1988. 9 — COM (91) 476 final.

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subsidise services in providing which the (b) directly allocates the proceeds of those Post Office competes with private under- dues to the undertaking entrusted with takings. the operation of the universal service, without there being any compensatory or regulatory mechanism designed to ensure that there is no allocation of cross-subsidies to non-universal ser- 27. Though it is true that the correspond- vices?'. ing provisions of Directive 97/67 do not apply to the facts of this case, one must be able to deduce corresponding obligations directly from the Treaties.

V — Opinion

28. By judgment of 21 June 1999, the Tribunale civile di Genova (District Court of Genoa) has therefore requested a pre- liminary ruling on the following question: A — The admissibility of the question submitted for a preliminary ruling

(1) Disposal of the reference for a preli- minary ruling

31. Furthermore, the Italian Post Office argues on the basis of the 'acte clair' doctrine that a reference is not necessary. Following the decision in Corbeau, 10 Com- munity law is sufficiently clear to allow the national court not to refer. That case 33. As the Court has consistently held, it is decided that a monopoly over basic postal the task of the national court to determine services was lawful. Moreover, competition whether a preliminary ruling is necessary. 11 in certain postal services may be limited or Hence if that court decides that a reference excluded if this is necessary for the eco- is necessary, it is in general not for the nomic equilibrium of the undertaking that Court to re-examine that issue. The only guarantees the basic service. As in the exception is where the question is patently judgment in Corbeau, the decision as to hypothetical. 12 whether that is necessary in this case must be left to the national court. In any case, any judgment must be limited to a repeti- tion of the findings made in the judgment in Corbeau.

34. The relationship of cooperation with national courts that is embodied in the preliminary ruling procedure is founded on a division of tasks that permits the Court to determine the question of disposal only in exceptional cases. This is possible where 32. The plaintiff objects that a decision on the question referred is, following the 11 — See, for example, Case 26/62 Van Gend en Loos [1963] ECR 1, at 22, and Case 83/78 Pigs Marketing Board 11978] ECR 2347, paragraph 25. 10 — Case C-320/91 Corbeau v Regie des Postes [1993] ECR 12 — Case C-83/91 Meiiicke v ADVIORGA [1992] ECR I-4871, I-2533. paragraph 25 et seq.

35. According to the information in the judgment referring the question, and also in the view of the national court, the legal 38. That is confirmed, rather than contra- dispute appears not to have been resolved. dicted, by both the previous and the most The Italian Post Office has indeed been recent formulations 16 of Article 104(3) of ordered by an interlocutory judgment to the Rules of Procedure. The provision does repay the fines imposed, but the final not direct that a preliminary reference is judgment has yet to be delivered. Among inadmissible where the case-law of the other things, the judgment referring the Court or the text of the relevant provision question states that there remain claims for gives unequivocal answers to the questions damages made by the plaintiffs in the sum raised. It merely permits a simplified of at least ITL 500 million. answer to be given in the judgment. In any case, the following considerations as to the answer to the question referred demon- strate that entirely legitimate doubts do exist as to the interpretation of Community law. 36. Also, although the intervening amend- ment to the Italian regulations may dimin- ish the general interest in clarification of the questions referred, it does not settle the outcome of the main case. (2) The description of the facts

37. Finally, the 'acte clair' doctrine cannot render the reference inadmissible either. 39. In its judgment in Telemarsicab- This doctrine may assist the national court ruzzo 17, the Court stated that it is only in determining the need for a reference. It is 15 — Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415, paragraph 13 et seq. 13 —Case C-74/99 Imperial Tobacco [2000] ECR I-8699, 16 — Amendment of the Rules of Procedure of the Court of paragraph 5. Justice of 16 May 2000, OJ 2000 L 122, p. 43. 14 — Case C-314/96 Diabali v Caisse d'Allocations Familiales 17 — Joined Cases C-320/90, C-321/90 and C-322/90 Telemar- de l'Essonne [1998] ECR I-1149, paragraph 14 et seq. sicabruzzo [1993] ECR I-393, paragraph 6.

able to provide an interpretation of Com- may also be sufficient if adequate informa- munity law that will be of use to the tion is contained in the observations sub- national court if the national court mitted to the Court and their presentation 'define[s] the factual and legislative context in the Report for the Hearing, so that at of the questions it is asking or, at the very least during the oral hearing all those least, explain[s] the factual circumstances concerned may make representations on on which those questions are based'. The all the relevant points. 19 Court said that those requirements are set particularly high in the field of competition law. Therefore, the possibility that the Court may later be able to glean the relevant information from the file submit- ted by the national court, the written 42. The judgment of the national court observations and the submissions of the contains only superficial information about parties at the oral hearing does not relieve the services offered by the plaintiff and the the national court of the obligation to state question as to whether the Italian Post already in the decision referring the ques- Office itself offers express courier services, tion the facts that the Court must know in but the relevant information was contained order to be able to give a useful answer to in the written observations of the plaintiff the questions referred with sufficient and was therefore taken up in the Report knowledge of the facts of the case. for the Hearing. The parties had the opportunity to take account of this at the oral hearing — they were indeed expressly invited to give their views on services provided by the Italian Post Office that might be part of the market for express courier services. The final determination of 40. In its decision in Saddik, 18the Court, the relevant facts can be left to the national emphasised moreover, that the content of court. The reference for a preliminary the decision making the reference should ruling is therefore admissible. not only provide information for the Court but should also give the Member States the opportunity to submit, pursuant to Arti- cle 20 of the Statute of the Court, observa- tions on the legal issues contained in the reference. Specifically, under that provi- sion, the Member States receive only the decision referring the question. B — The questions referred

(a) Definition of the market

47. Yet as early as 1989 the Commission proceeded on the assumption that general 45. The Court has said this about defining letter post and the market for courier a market: services were in substance different mar- kets 21 and continued to hold this view. 22 The Court has so far not made any express

20 — Case C-7/97 Brmmer |1998| ECR I-7791, paragraph 33 and the references therein. 'It is settled case-law that, for the purposes 21 — See the third and fourth recitals of Commission Decision of applying Article 86 of the Treaty, the 90/16 (cited in footnote 3). 22 — See the Notice on the application of the competition rules market for the product or service in ques- to the postal sector (cited in footnote 4); Nos 2.3 and 2.4.

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findings on the definition of the substantive thus in a significant part of the common market for postal services, but it appears market — the Italian Post Office has a from the judgment in Corbeau at least that dominant position. This position is based at express courier services are services clearly least in part on the postal dues on letters, dissociable from the general postal service, which guarantee that no other undertaking 'which meet special needs of economic can compete with the Italian Post Office in operators and which call for certain addi- providing a basic letter service. tional services not offered by the traditional postal service, such as collection from the sender's address, greater speed or reliability of distribution or the possibility of chang- ing the destination in the course of tran- sit'. 23

55. The EFTA Surveillance Authority, too, considers that imposing a charge for a 53. It is therefore necessary to consider service that is not rendered would in the whether the obligation on private express normal case be an abuse. None of the courier services when conveying letters to exceptions to this generality is applicable pay dues to the Italian Post Office equal to here. Therefore, by levying the charge the the carriage charge for the corresponding Italian Post Office must be abusing its basic postal service amounts to an abuse of dominant position. the dominant position of the Italian Post Office on the market for general letter services.

56. The Italian Government and the Italian Arguments of the parties Post Office argue, however, that the charge is concerned only with compensating for the burdens inherent in providing a uni- versal service. The Government finds it inconceivable that the performance of an express courier service should be divided 54. The plaintiff takes the view that the into two performances, of which the basic Italian Post Office is abusing its dominant service would be provided by the universal position. The fact that customers of express service against payment of the postal dues courier services must pay postal dues in and the other would be provided by the addition to costs of such services influences private undertaking against payment of a their decision about obtaining such services further fee.

25 — Corbeilli (cited in footnote 10), paragraph 11 and the 26 — The plaintiff refers to Case C-179/90 Merci convenzionali references therein. ¡mrlo ili Genova [1991] ECR I-5889, paragraph 19.

59. Thus, there are two different types of abuse. One comprises cases in which a 61. Abuse of the first type might well be dominant position is used to achieve a found here in the requirement for express result that could not be achieved in condi- courier services to pay letter postage with- out receiving corresponding services from the Italian Post Office (i). On the other 27 — The Commission relies on the judgment in Case C-18/88 hand, there might be an abuse of the second GB-Inno-BM [1991] ECR I-5941; on the Opinion of Advocate General Tesauro in Corbeau (cited in footnote type in that express courier services must in 10), paragraph 13; and on Commission Decision 95/489/ EC of 4 October 1995 concerning the conditions imposed on the second operator of GSM radiotelephony services in Italy, OJ 1995 L 280, p. 49. 28 — Case 85/76 Hoffmann-La Roche v Commission [1979] 29 — Case 322/81 Michelin v Commission [1983] ECR 3461, ECR 461, paragraph 125. paragraph 57.

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addition to their own costs pay letter wanted but for additional services that had postage, while the services provided by not been requested. 30 If forcing unwanted the Italian Post Office are not subject to services on a customer is in itself an abuse, any corresponding burden (ii). then demanding payment for services not performed at all must be all the more so.

(i) Abuse in the form of a charge for services not provided

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that is an abuse by reason of its very- 67. Because the imposition of the postal structure. 31 Such a structure may be found dues could not have been effected by a for example where an undertaking that has dominant undertaking, it cannot be equa- a dominant position as an employment ted to an abuse in the form of imposing a agency by virtue of an exclusive right, '[is] charge for services that have not been manifestly unable to satisfy demand on the performed. employment market for all types of activ- ity'. 32

(ii) Abuse by distorting competition to the advantage of the operations of the Italian Post Office

31 — Opinions of Advocate General Lenz of 11 July 1991 in Case C-46/90 Lagauche and Others [1993] ECR I-5267, paragraph 42 et seq. and, in the same case, of 2 December 1993, paragraph 15 et seq. 70. What is disputed is whether this fas 32 — Case C-55/96 Job Centre [1997] ECR I-7119, paragraph 35. service is to be considered as part of the

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market for express courier services. If it is abuse could only be seen in the effects of to be considered as part of that market, the postal dues on the market for express then it stood in direct competition with the courier services. The requirements to be express courier services that had to pay the satisfied for a finding of an abuse on a postal dues. In that case, the postal dues market other than the dominated one are in would have directly distorted competition principle very stringent. on the market for express postal services. At the same time, they would have facili­ tated the extension of the Italian Post Office's dominant position on the market for general letter services to the neighbour­ ing market for express courier services. 73. In its judgment in Tetra Pak, moreover, Such an extension of a dominant position the Court held that 'application of Arti­ would, according to the judgment in GB- cle 86 presupposes a link between the bino-BM, be incompatible with Articles 86 dominant position and the alleged abusive and 90(1) of the EC Treaty. 33 conduct, which is normally not present where conduct on a market distinct from the dominated market produces effects on that distinct market. In the case of distinct, but associated, markets,... application of Article 86 to conduct found on the asso­ 71. On the other hand, if the fast service ciated, non-dominated, market and having should be considered as part of the market effects on that associated market can only for general letter services or as a market on be justified by special circumstances'. 3 4 its own, there would, ex hypothesi, be no question of a direct relationship of compe­ tition.

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simpler versions, in particular where addi- (d) Whether trade is affected tional services such as collection from the sender or re-direction of the item during transport are not required, the service appears to be in large measure comparable to the standard fast service. Thus, the postal dues also facilitate the increase in Arguments of the parties the market share of the fast service at the cost of express courier services that are burdened with the postal dues even if the fast service of the Italian Post Office is not an express courier service. To this extent 76. The Italian Post Office and the Italian too, an extension of the dominant position Government argue that because of the of the Italian Post Office could be assumed, circular of 4 March 1989, 35 there is no whether due to an increase in the market possibility that trade between the Member for the general letter post or due to an States is affected. increase in a separate market for the fast service of the Italian Post Office, which would perforce dominate that market. The extension of the dominant position at the cost of the competitive market moreover contradicts the principle of competition, 77. The Commission emphasises that its moreover. In addition, the separation observations regarding abuse are based between the markets for general letter entirely on the hypothesis that it is possible services and for express courier services that trade has been affected, but that this seems to be explained principally by the hypothesis must be tested by the national endeavour to protect the competitive sector court. from an uncontained monopoly. Accord- ingly, this type of extension of a dominant position must also be considered an abuse.

(e) Justification 79. If the circular of 4 March 1989 did effectively exclude the application of postal dues to international deliveries and to any connecting services, then on the face of it the postal dues do nothing more than limit the freedom of establishment of postal services. 83. Although Articles 86 and 90(1) of the EC Treaty prohibit Member States, 'in the case of public undertakings to which Member States grant special or exclusive rights, [from enacting or maintaining] in force any measure contrary to the rules contained in the Treaty with regard to 80. However, the markets for international competition', this prohibition must 'be read carriage of post may be distinguished from in conjunction with Article 90(2), which most other trading markets because the provides that undertakings entrusted with performance of cross-border postal services the operation of services of general eco- on any significant scale requires the crea- nomic interest are to be subject to the rules tion of a network of branches in the on competition [only] in so far as the country of posting and in the country of application of such rules does not obstruct delivery. In this way, restrictions on the the performance, in law or in fact, of the freedom of establishment also inhibit trade particular tasks assigned to them'. 37 in services.

81. Due to the price advantage gained from 84. On the basis of the judgment in Cor- postal dues, the Italian Post Office carries beau 38 and Directive 97/67, it is not letters that would otherwise be carried by disputed that the basic postal service — other undertakings. As a result, the fixed the so-called universal service — is a task costs of these undertakings are divided of general economic interest. This task between a smaller number of deliveries, justifies granting the exclusive right to carriage of which becomes accordingly perform certain services to the undertaking more expensive. That affects international carriage even if it is not subject to the postal dues. It must also be assumed that this 37— Corbeau (cited in footnote 10), paragraphs 12 and 13 et seq. effect is perceptible. 38 — Cited in footnote 10; paragraph 12 et seq.

87. The plaintiff argues for this reason that the services it offers are dissociable from the universal service. It also submits that, 89. The Italian Post Office also takes this moreover, the application of the competi- view. It submits that for various reasons, tion rules cannot compromise the economic which need not be discussed in detail here, equilibrium of the universal service. On the the Italian postal market is in European one hand, it is not necessary to charge terms a difficult one for the provider of the postal dues on express courier services in universal service. In many regions, local order to cover the deficit of the universal customs as well as a sparse population mean that the demand for postal services is very low, whereas it is far more profitable 39 — Corbeau (cited in footnote 9), paragraph 17. to service other regions. The Italian Post

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94. Article 90(2) of the EC Treaty provides that undertakings entrusted with the opera- 91. Thus, the postal dues are an integral tion of services of general economic interest part of the means granted to the provider of are subject to the rules contained in the the universal service and regarded by the Treaty only in so far as the performance in legislature as necessary 'in order for that law or in fact of the particular tasks undertaking to be able to perform its public assigned to them is not thereby obstructed. service obligations under conditions of The newly promulgated Article 16 EC and economic equilibrium'.40 Article 36 of the Charter of Fundamental Rights of the European Union underline the importance of this exception as an expres- 40 — The Italian Post Office cites this passage from the sion of a fundamental value judgment of judgment of the Court in Case T-106/95 FFSA v Commis- sion 11997] ECU II-229, paragraph 178. Community law.

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ier services. In principle, a service provided services have a particular responsibility for in the public interest ought also to be paid financing the universal postal service. Until for by the public. However, the Corbeau the opposite is proved, it must in short be judgment permits only the inference that assumed that (almost) all express courier within a defined reserved sector imposing a deliveries would be carried by the universal burden on customer groups with more service if nobody provided express courier efficient cost structures is permissible in services. order to promote the support of customer groups with inefficient cost structures. In particular, the universal service too ought in principle to fix its prices by reference to its costs. 45

101. Of course, Article 9(4) of Directive 97/67 quite rightly indicates that the con- tribution that other services make to finan- cing the universal service must be propor- 99. However, the Community legislature tionate. The principle of proportionality is also proceeds from the assumption that it is a general principle of Community law, in principle possible to impose levies on which must be observed in every case in neighbouring markets in order to finance which a right granted by Community law is the universal service. The model in Arti- restricted. Accordingly, each contribution cle 9(4) of Directive 97/67 of a support to financing the universal service must be fund financed by non-universal postal ser- suitable for its purpose, necessary and not vices is based on such an assumption. excessive. 46 For this reason, the amount of the contribution is limited in three ways.

103. In the second place, the obligation on amount that the express courier services the express courier services to contribute must pay because of the absence of a cannot exceed the amount that the provider contribution to financing the universal of the universal service would charge if it service from the services provided by the were itself to carry in the universal service Italian Post Office is not necessary. "Whe- the letters given to express courier services. ther the fast service of the Italian Post The aggregate liability of the express cour- Office was part of the universal service at ier services can reach at the most this the time of the events the subject of this amount. A greater burden would be exces- case cannot be determined here. This sive. Indeed, in this instance, the Italian decision also is a matter for the national Post Office receives only the postage for the court. normal letter service. Despite that, it is to be assumed that this contribution of the express courier services is higher than the net income that escapes the Italian Post Office. In order not to be excessive, the amount of the contribution must rather be calculated first by subtracting the costs that the universal service saves by not carrying the letter itself. 47 How these saved costs might be calculated cannot be decided here. 48 Should it arise, this is also a matter for the national court. It does, however, 105. The postal dues could not be justified appear clear that one cannot in any case at all if the Italian Post Office provided its regard the whole carriage charge as profit own express courier service that was not that the Italian Post Office would receive if subject the postal dues. Admittedly, cross- the letter subject to the postal dues had subsidies of the universal service by an been carried by it instead. express courier service of the Italian Post Office might be necessary under the applic- able financial model to offset losses in the universal service. However, it is not clear why the Italian Post Office should for that reason receive a competitive advantage in the market for express courier services. Such an effect could not be achieved by a lawful tax system; nor could it be justified 104. Finally, this responsibility also falls in by any group responsibility that may fall on principle on the services provided by the private express courier services. In practice, Italian Post Office that do not form part of such services would be doubly burdened, the universal service. These services must once by the levy and once by the advantage pay the same contribution as the express given to their competitors. Financing reg- courier services. At the least, the additional ulations, too, must comply with Commu- nity competition law. But whether the fast service of the Italian Post Office is to be 47 — See, mutatis mutandis, Joined Cases C-147/97 and C-148/97 Deutsche Post v Gesellschaft für Zahlungssys- considered as part of the market for express teme and Citicorp Kartenservice [2000] ECR I-825, courier services or as part of the universal paragraph 58. 48 — One might take as a starting point for this deduction the service likewise can also only be deter- rebates the universal service gives to large customers for mined by the national court. specific mass deliveries.

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114. First, it must be remembered that the bookkeeping practice of the Italian Post Office at the time of the events that gave 112. The EFTA Surveillance Authority, rise to this litigation is a matter of dispute considers that the problems lie in the between the parties. It is therefore the task practical application of these points, as of the national court to make the necessary

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findings. The Court can only give guidance tice to exercise rights conferred by Com- on the requirements to which the Italian munity law'. 49 These principles apply also Post Office is to be subject in accounting where reliance is placed on Articles 86 and for the application of the receipts from 90 of the EC Treaty. 50 postal dues imposed on private express courier services.

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VI — Conclusion

119. For these reasons, I suggest that the questions referred for a preliminary ruling should be answered as follows:

(1) A contribution that is paid by postal services that provide specific services )issociable from the universal postal service towards financing the universal service and is in the form of a levy on individual deliveries is compatible with Articles 86 and 90 of the EC Treaty (now Articles 82 and 86 EC) only if

— the aggregate amount of the levy does not exceed the deficit of the universal service,