C-240/02

OPINION OF MR TIZZANO — CASE C-240/02

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 23 October 2003 1 1

I — Introduction I I— Legal background

A — The relevant provisions of Directive 97/67/EC

1. By an order of 16 May 2002 the Tribunal Supremo (Supreme Court) (Spain) 2. By its first article, Directive 97/67 referred to the Court for a preliminary establishes common rules concerning, inter ruling pursuant to Article 234 EC two alia, 'the provision of a universal postal questions on the interpretation of Directive service within the Community' and 'the 97/67/EC of the European Parliament and criteria defining the services which may be of the Council of 15 December 1997 on reserved for universal service providers and common rules for the development of the the conditions governing the provision of internal market of Community postal ser- non-reserved services'. vices and the improvement of quality of service (hereinafter 'Directive 97/67'). 2In particular, the Tribunal Supremo seeks to ascertain: (i) whether, in certain circum- stances, the 21st recital of that directive makes it possible to exclude postal services 3. Pursuant to Article 2(1) of the directive, carried out personally by the sender (or by a 'postal services' mean 'services involving third party acting solely on behalf of that the clearance, sorting, transport and deliv- person) from the concept of 'self-provision'; ery of postal items'. The sixth paragraph and (ii) whether it is possible to include then states that 'postal item' means 'an item money order services among those reserved addressed in the final form in which it is to to the provider of the universal postal be carried by the universal service provider. service. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise 1 — Original language: Italian. 2 — OJ 1998 L 15, p. 14. The directive was amended by with or without commercial value'. In the Directive 2002/39/EC of the European Parliament and of the seventh paragraph, by contrast, an 'item of Council of 10 June 2002 (OJ 2002 L 176, p. 21) after the applications had been lodged in the main proceedings. correspondence' is defined as 'a commu-

nication in written form on any kind of 5. With regard to the services that may be physical medium to be conveyed and reserved, it is also important to bear in delivered at the address indicated by the mind the 21st recital of the directive, to sender on the item itself or on its wrapping. which the national court makes express Books, catalogues, newspapers and period- reference in its first question. That recital, icals shall not be regarded as items of after stating that 'new services (services correspondence'. quite distinct from conventional services) and document exchange do not form part of the universal service and consequently there is no justification for their being reserved to the universal service providers', then adds — in so far as it is relevant to the present case — that 'this applies equally to self-provision (provision of postal services by the natural or legal person who is the originator of the mail, or collection and routing of these items by a third party 4. The rules on the 'harmonisation of the acting solely on behalf of that person), services which may be reserved' to universal which does not fall within the category of service providers are laid down in Article 7 services'. of the directive. The first paragraph of that article, in the version in force when the applications in the main proceedings were lodged, provided in particular that 'to the extent necessary to ensure the maintenance of universal service, the services which [could] be reserved by each Member State for the universal service provider(s) [were] the clearance, sorting, transport and deliv- ery of items of domestic correspondence, whether by accelerated delivery or not, the B — The Spanish legislation price of which [was] less than five times the public tariff for an item of correspondence in the first weight step of the fastest standard category where such category [existed], provided that they [weighed] less than 350 grams. In the case of the free postal service for blind and partially sighted 6. Directive 97/67 was transposed into persons, exceptions to the weight and price S p a n i s h law by means of Law restrictions [could] be permitted'. The No 24/1998 of 13 July 1998 on the second paragraph added that, also to the universal postal service and the liberal- extent necessary to ensure the maintenance isation of postal services (hereinafter 'Law of universal service, 'cross-border mail and No 24/1998'). The general provisions of direct mail [could] continue to be reserved that law were subsequently implemented by within the price and weight limits laid down means of Royal Decree No 1829/1999 of 3 in paragraph 1'. Finally, the fourth para- December 1999 approving the regulation to graph stated that 'document exchange govern postal services (hereinafter the [could] not be reserved'. 'Royal Decree').

8. With regard to the first aspect, Article 2 (2) of the Law states that 'a self-provision system is deemed to exist when the same natural or legal person is both the origin- ator and the receiver of the items, and when In order for the originator and the receiver that person provides the service itself or to be deemed to be the same natural or legal uses a third party who acts solely on his person, it shall also be necessary that the behalf, employing different methods from items be transported and distributed solely those of the universal postal service pro- between the various centres, subsidiaries, vider. Under no circumstances may self- residencies or headquarters of the natural provision disrupt the ... services' reserved to or legal person effecting that self-provision the universal postal service provider (the and distributed only within those afore- Entitad Publica Empresarial Correos y mentioned premises. Telégrafos, hereinafter 'Correos'). In that regard, Article 2(2) of the Royal Decree lays down the following more detailed provi- sions:

Postal services provided to third parties by natural or legal persons in the exercise of their commercial or business activity shall not be regarded as self-provision.

'Services supplied under the self-provision system are excluded from the scope of these rules. When self-provision is carried out using the mailbag system or similar methods, it may not include items belonging to the range of services reserved to the universal postal service provider. A self-provision system is deemed to exist when the same natural or legal person is both the originator and the receiver of the items, and when that person provides the service itself or uses a third party who acts solely on its behalf, employing different Under no circumstances may this scheme methods from those of the universal postal disrupt the services reserved to the universal service provider. postal service provider.'

12. In the light of these questions, the court of reference considered that there was reasonable doubt as to the interpretation 10. The applicants in the dispute before the of the abovementioned Community rules Tribunal Supremo are two associations of and, specifically, as to the ability of the private operators in the postal services field, national authorities to include particular the Asociación Profesional de Empresas de postal services among those reserved to the Reparto y Manipulado de Correspondencia operator of the universal postal service. (hereinafter 'Asempre') and the Asociación Nacional de Empresas de Externalizacíon y Gestión de Envíos y Pequeña Paquetería. In two separate applications, which were subsequently joined, the associations brought actions before the Tribunal In order to resolve the dispute before it, the Supremo challenging various provisions of court of reference therefore considered it the Royal Decree, including — in so far as necessary to put the following questions to they are of relevance here — those con- the Court of Justice for a preliminary tained in Articles 2(2) and 53(1). ruling:

'1. Does the interpretation of the 21st 11. According to the applicants, those recital to Directive 97/67/EC and latter provisions are unlawful as they permit the exclusion from "self-provi-

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sion" of postal services provided by the that the concept of self-provision appears sender (or another person acting exclu- only in the 21st recital of Directive 97/67 sively on his behalf), if that person is and is not to be found anywhere in the text not also the receiver, if the services are of the directive. According to settled case- provided in the course of his commer- law, such a concept therefore has no legal cial or business activity, or carried out value and cannot create obligations for using the mailbag system or other Member States. similar methods, or if self-provision disrupts the services reserved to the universal service provider?

18. In this regard, the Belgian Government observes first that handling one's own correspondence does not create a postal 21. On that basis, the Commission service. For that reason, according to that observes that, in order to qualify an activity government, self-provision is not one of the as self-provision, the Spanish legislation sets services which, for the purposes of Article 7 four conditions that are not contained in of the directive, can be reserved to the the 21st recital of the directive, thereby universal service provider. adopting a more restrictive concept of self- provision than that laid down in the said provision. In particular, the Commission points out that the 21st recital of the directive:

— does not preclude any means of carry- ing out self-provision and, in particu- lar, does not provide that 'when self- provision is carried out using the 23. Against that background, according to mailbag system or similar methods, it Asempre, the Spanish legislature adopted may not include items belonging to the the disputed provisions precisely in order to range of services reserved to the uni- reduce the scope for users to choose versal postal service provider'; between urban and out-of-town services, forcing them to use the monopoly services provided by Correos. To that end, the scope for self-provision was unlawfully made subject to a series of conditions not contained in the 21st recital of the directive. — does not take account of the effect that self-provision may have on the provi- sion of the universal service and does not make self-provision subject to the condition that it does not 'disrupt the services reserved to the universal postal service provider'.

2. Assessment

(a) such operations are carried out in the provider (and not simply from the scope of course of the sender's commercial activity, that regulation, as the Spanish Government where the sender is not also the recipient of maintains). Hence, according to that court, the items; by providing that, in the three cases indicated above, the clearance, sorting, transport and delivery of items of corres- pondence by the sender (or by a third party acting solely on his behalf) fall outside the concept of 'self-provision', the national legislature may indirectly have widened (b) the operations in question are carried the scope of the postal monopoly beyond out using the mailbag system or similar that permitted by the directive, and in methods, in other words — so far as may be particular by its 21st recital. Indeed, the understood — using procedures that make order for reference clearly states that the it possible to handle a large number of relevance of the question submitted for a items simultaneously; preliminary ruling lies in the fact 'that, by means of that exclusion, certain postal services which, under the directive, consti- tute self-provision, might be included as services reserved to the universal service operator'. 4

(c) the carrying-out of such operations by the sender (or by a third party acting solely on his behalf) disrupts the services reserved to the universal postal service providers.

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27. The 21st recital states that there is no natural or legal person who is the origin- justification for including 'self-provision' ator of the mail, or collection and routing of among the services which according to these items by a third party acting solely on Article 7 can be reserved to the universal behalf of that person', it seems clear to me: service provider, in that it 'does not fall within the category of services' or, put another way, does not constitute a provi- sion of services. Read in the light of the 21st recital, Article 7 of the directive therefore acknowledges that the clearance, sorting, transport and delivery of postal items can be carried out freely under a 'self-provision' — first, that that concept covers any regime and that, as a consequence, the operation involving the clearance, sort- Member States cannot require the origin- ing, transport and delivery of items of ators of correspondence to have such correspondence by the sender (or by a activities performed by the universal service third party acting solely on his behalf), provider since that would constitute an irrespective of the identity of the unjustified extension of the latter's legal recipient; monopoly.

— secondly, that it is incompatible with the directive to permit such operations to be carried out by the sender (or by a 28. That being so, I can but agree with the third party acting solely on his behalf) Commission, the Belgian Government and only on condition that the mailbag Asempre that a Member State cannot adopt system or similar methods are not used a more restrictive concept of 'self-provision' or that the services reserved to the than that contained in the 21st recital of the universal postal service provider are directive and cannot make the carrying-out not disrupted. of certain postal activities under 'self- provision' arrangements subject to condi- tions not laid down in that provision.

33. However, along with the Commission B — The second question and the Governments of Spain and Bel- gium, I consider that a money order service of the kind in question, which consists in making payments via the public postal system, is not a postal service covered by Directive 97/67. There is no need to expatiate on this point, as it is obvious that the directive does no more than lay down 31. By its second question the national common rules on the provision of postal court asks in essence whether, on the basis services, in other words 'services involving of Article 7 of the directive, the services the clearance, sorting, transport and deliv- reserved to the universal service provider ery of postal items' (Article 2(1)); it does may also include the money order service, not therefore relate to payment services that in other words the service 'by which may be offered by postal operators. payments are made to natural or legal persons on behalf and on the order of others, through the public postal network'.

34. I therefore consider that the reply to the 32. Asempre proposes that the reply to this second question must be that money order question be in the negative, pointing out services, consisting in the making of pay- that the money order service is not one of ments via the public postal network, are not those that Article 7 permits to be reserved governed by Directive 97/67.

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V — Conclusions

35. In the light of the considerations set out above, I propose that the reply to the questions from the Tribunal Supremo be as follows: