Opinion of the Advocate General — ECLI:EU:C:2007:540
Date: 2007-09-20
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Approximation of laws;Freedom to provide services;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Provision of postal services reserved in conformity with Directive 97/67 – Award, without regard to the rules governing the award of public service contracts, to a wholly State-owned public limited company, which is the provider of the universal postal service (Arts 43 EC and 49 EC; European Parliament and Council Directive 97/67) 2. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Provision of postal services not reserved within the meaning of Directive 97/67 – Award, without regard to the rules governing the award of public service contracts, to a wholly State-owned public limited company, which is the provider of the universal postal service (Council Directive 92/50; European Parliament and Council Directive 97/67) 3. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Provision of postal services not reserved within the meaning of Directive 97/67 – Award, without regard to the rules governing the award of public service contracts, to a wholly State-owned public limited company, which is the provider of the universal postal service (Arts 12 EC, 43 EC, 49 EC and 86 EC; European Parliament and Council Directive 97/67) 1. Community law must be interpreted as not precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of postal services reserved, in a manner consistent with Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of the universal postal service. Article 7 of that directive permits Member States to reserve some postal services for the provider(s) of the universal postal service to the extent necessary to ensure the maintenance of that service. Consequently, in so far as postal services are, in a manner consistent with that directive, reserved for a single universal service provider, such services are by necessity not subject to competition, given that no other economic operator is authorised to offer those services. Therefore, Community rules in the field of public procurement, which have as their principal objective the free movement of services and the opening-up to undistorted competition in all the Member States, cannot be applied. (see paras 39-41, operative part 1) 2. Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 2001/78, must be interpreted as precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of non-reserved postal services within the meaning of Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of the universal postal service, in so far as the contracts to which that legislation applies reach the relevant threshold as provided for in Article 7(1) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 2001/78, and constitute contracts within the meaning of Article 1(a) of Directive 92/50, as amended by Directive 2001/78, concluded in writing and for a price, rather than a unilateral administrative measure creating obligations solely for the provider, and which depart significantly from the normal conditions of a commercial offer made by the provider, which is a matter for the national court to establish. (see paras 54, 69, operative part 2) 3. Articles 43 EC, 49 EC and 86 EC, as well as the principles of equal treatment, non-discrimination by reason of nationality and transparency, must be interpreted as precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of non-reserved postal services within the meaning of Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of universal postal services, in so far as the contracts to which that legislation applies do not reach the relevant threshold as provided for in Article 7(1) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 2001/78, and do not in actual fact constitute a unilateral administrative measure creating obligations solely for the provider of the universal postal service and departing significantly from the normal conditions of a commercial offer made by the latter, which are matters for the national court to establish. Moreover, Article 86(2) EC cannot be used to justify such national legislation in so far as it concerns non-reserved postal services within the meaning of Directive 97/67. Directive 97/67 implements Article 86(2) EC with regard to the possibility of reserving certain postal services to the provider of the universal postal service. Member States do not have the option of extending the services reserved for the universal postal service provider pursuant to Article 7 of Directive 97/67, as such extension goes against the purpose of the Directive, which aims to establish gradual and controlled liberalisation in the postal sector, when, within the framework of Directive 97/67, account is taken of whether, in order to enable the universal postal service to be carried out under economically acceptable conditions, it is necessary to reserve some postal services to the provider of that universal postal service. (see paras 80-82, 85, 88, operative part 3)