Judgment — ECLI:EU:C:2015:716
Date: 2015-10-22
Language of the case: Bulgarian
Court formation: Second Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary — Judgment of the Court (Second Chamber), 22 October 2015 1. Freedom to provide services — Postal services — Directive 97/67 — Scope — Money order services — Not included (European Parliament and Council Directive 97/67) 2. Competition — EU rules — Undertaking — Concept — Postal organisation having the task of paying retirement pensions — Not included — Condition — Activity inseparably connected with the functioning of the state retirement system — Assessment by the national court (Art. 107(1) TFEU) 3. State aid — Concept — Measures to compensate for the cost of public service missions assumed by an undertaking — Not included — Conditions set out in the judgment in Altmark — Assessment by the national court (Art. 107(1) TFEU) 4. State aid — Prohibition — Exceptions — Compensation for the costs generated by the public service mission — Application of Decision 2012/21 to aid schemes granted before the entry into force of that decision — Scope (Art. 106(2) TFEU; Commission Decisions 2005/842 and 2012/21, Arts 2(2), 10, 11, 12) 1. Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6, must be interpreted as meaning that a money order service by which the sender, in this case the State, transfers sums of money to a beneficiary through the postal operator entrusted with providing the universal postal service does not fall within the scope of that directive. Article 2, point 1 of Directive 97/67 gives an exhaustive list of the services included in the concept of ‘postal service’ within the meaning of that directive and point 6 of that article describes in detail what is to be understood by ‘postal item’ for the purposes of that directive. However, neither Article 2 nor any other provision of Directive 97/67 mentions financial services, including those provided as an additional service by the postal services providers. Accordingly, the answer to the first question is that Directive 97/67 must be interpreted as meaning that a money order service by which the sender, in this case the State, transfers sums of money to a beneficiary through the postal operator entrusted with providing the universal postal service does not fall within the scope of that directive. Neither Article 2 nor any other provision of the Directive mentions financial services which may also be provided by the postal services providers. (see paras 29, 30, 33, operative part 1) 2. For the purposes of the application of EU competition law, on the one hand, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. On the other, any activity consisting in offering goods and services on a given market is an economic activity. However, the activity of the organisations involved in the management of the public social security system which fulfil an exclusively social function is not an economic activity. That activity is based on the principle of national solidarity and is entirely non-profit-making. The benefits paid are statutory benefits bearing no relation to the amount of the contributions. In order to determine whether the activity of a postal organisation, consisting of the payment of retirement pensions, constitutes an economic activity falling within the scope of Article 107(1) TFEU, the referring court must ascertain whether or not that activity is involved in the functioning of the public social security service. In that context, in order to avoid classification as an economic activity, that activity must, by its nature, its aim and the rules to which it is subject, be inseparably connected with the national pensions system. In that regard, the facts that a postal organisation deals only with the payment of retirement pensions and that payment of those pensions may also be made through banks, so that money orders are not the sole method of paying the retirement pensions constitute an indication enabling the view to be taken that the activity of money order operations enabling the payment of retirement pensions may be separable from the national pensions system. (see paras 37-43) 3. Article 107(1) TFEU must be interpreted as meaning that, if the activity of money order operations enabling the payment of retirement pensions constitutes an economic activity, the grant by a Member State of an exclusive right to pay retirement pensions by money order to a national postal operator is not, however, caught by that provision, in so far as that service constitutes a service of general economic interest, the remuneration for which represents compensation for the services carried out by that undertaking to discharge its public service obligation. (see para. 56, operative part 2) 4. In matters of State aid, it is clear from Articles 11 and 12 of Decision 2012/21 on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest that it repeals Decision 2005/842 and enters into force on 31 January 2012. Article 10 of Decision 2012/21 provides that any aid scheme put into effect before the entry into force of that decision that was compatible with the internal market and exempted from the notification requirement in accordance with Decision 2005/842 is to continue to be compatible with the internal market and exempt from the notification requirement for a further period of 2 years, that is to say until 31 January 2014. With effect from that date, a State aid scheme must comply with the conditions of Decision 2012/21 in order to be exempted from the notification requirement. In addition, in accordance with Article 2(2) of Decision 2012/21, where a service provider has managed a service of general economic interest for more than 10 years, that decision applies only to the extent that a significant investment is required from the service provider in order that it may discharge its obligation to perform the service of general economic interest, which it is for the referring court to ascertain. (see paras 53-55)