Judgment — ECLI:EU:C:2024:921
Date: 2024-10-24
Language of the case: Bulgarian
Court formation: Tenth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-476/23 – 1 
Case C-476/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
25 July 2023 
Referring court:  
Varhoven administrativen sad (Supreme Administrative Court, 
Bulgaria) 
Date of the decision to refer:  
14 July 2023 
Appellant:  
‘STAR POST’ EOOD 
Defendant  
Komisia za regulirane na saobshteniyata (Communications 
Regulation Commission, Bulgaria) 
  
Subject matter of the main proceedings 
Appeal by ‘STAR POST’ OOD against the decision of the Administrativen sad 
Sofia-grad (Administrative Court, City of Sofia) (‘the ASSG’) dismissing that 
company’s action against a decision by the Komisia za regulirane na 
saobshteniyata (Communications Regulation Commission) (‘the KRS’) as regards 
the recognition of the value of the net costs for the provision of a universal postal 
service by the provider of the universal postal service (a different company) and 
as regards the finding that those costs constituted a disproportionate financial 
burden as a result of providing the universal service, due to a lack of legal interest 
in bringing proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-476/23 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling under Article 267 TFEU concerning the 
interpretation of Article 22(3) of Directive 97/67 as amended by Directive 2008/6 
and of Article 47 of the Charter of Fundamental Rights 
Questions referred for a preliminary ruling 
1. How is the expression ‘postal service provider who is affected by a decision 
of a national regulatory authority’, and in particular the term ‘affected’ within the 
meaning of Article 22(3) of Directive 2008/6/EC of the European Parliament and 
of the Council amending Directive 97/67/EC to be interpreted with regard to the 
full accomplishment of the internal market of Community postal services? Is the 
term ‘affected’ to be interpreted as meaning that the decision of the regulatory 
authority must be specifically made against the postal service provider? Is a 
company, which operates as a postal service provider within the meaning of 
Article 22(3) of Directive 2008/6/EC of the European Parliament and of the 
Council amending Directive 97/67/EC with regard to the full accomplishment of 
the internal market of Community postal services, ‘affected’ where that company 
is in competition with the provider of the universal postal service in procedures 
concerning the awarding of public contracts and, when challenging decisions in 
those procedures, submitted arguments in connection with the cross-subsidising of 
the universal postal service provider which were rejected by the court on account 
of decisions by the national regulatory authority which recognised the value of the 
net costs for the provision of the universal postal service by the universal postal 
service provider and which found that those costs to a certain extent constituted a 
disproportionate financial burden as a result of providing the universal postal 
service? 
2. Do Article 22(3) of Directive 2008/6/EC of the European Parliament and of 
the Council amending Directive 97/67/EC with regard to the full accomplishment 
of the internal market of Community postal services and Article 47 of the Charter 
of Fundamental Rights of the European Union preclude a situation such as that at 
issue in the main proceedings, where a postal service provider who is in 
competition with the provider of the universal postal service cannot challenge 
before an independent body a decision by the national regulatory authority which 
recognised the value of the net costs for the provision of the universal postal 
service by the universal postal service provider and which found that those costs 
to a certain extent constituted a disproportionate financial burden as a result of 
providing the universal postal service? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union (TFEU): Article 106. 
Charter of Fundamental Rights of the European Union: Articles 47 and 51 
STAR POST 
 
3 
Directive 97/67/EC of the European Parliament and of the Council of 
15 December 1997 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/EC of the European Parliament and of the Council of 
20 February 2008 amending Directive 97/67/EC with regard to the full 
accomplishment of the internal market of Community postal services: Articles 1, 
4, 14 and 22 
Provisions of national law relied on 
Zakon za poshtenskite uslugi (Law on postal services) (‘the ZPU’): Paragraphs 15, 
24, 29, 29a, 34, 36b and 39 
Zakon za izmenenie i dopalnenie na Zakona za poshtenskite uslugi (Law 
amending and supplementing the law on postal services) (DV No 87 from 2009, in 
force since 3 November 2009) – Supplementary provision subparagraph 110 
Zakon za izmenenie i dopalnenie na Zakona za poshtenskite uslugi (Law 
amending and supplementing the law on postal services (DV No 102 from 2010, 
in force since 30 December 2010)): Subparagraph 70 
Administrativnoprotsesualen kodeks (Code of Administrative Court Procedure) 
(‘the APK’): Paragraphs 60, 147, 159 and 166 
Metodika za izchislyavane na netite razhodi ot izvarshvane na universalnata 
poshtenska usluga i za opredelyane na kriterii za nalichie na nespravedliva 
finansova tezhest (Metodikata) (Method for the calculation of the net costs of 
providing the universal postal service and defining the criteria for the existence of 
a disproportionate financial burden) (‘the Method’): Paragraphs 5 and 14 
Succinct presentation of the facts and procedure 
1 Under Paragraph 24 of the ZPU, with which the provisions of Directive 2008/6 
amending Directive 97/67 are transposed into Bulgarian law, the universal postal 
service is to be provided by a postal operator who is required by law to offer that 
service nationwide by means of a postal network organised and managed by that 
operator. In Bulgaria, that postal operator is the ‘Balgarski poshti’ EAD (‘BP’). 
The universal postal service is a service of general interest, which is provided at 
regulated prices and under the conditions laid down in the ZPU and specified in 
BP’s individual licence. 
2 Pursuant to Paragraph 29 of the ZPU, the postal operator responsible for providing 
the universal postal service (namely BP) is to receive compensation from the 
national budget if the obligation to provide the universal postal service entails net 
costs and those constitute a disproportionate financial burden for that operator. 
The amount of the disproportionate financial burden as the result of providing the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-476/23 
 
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universal postal service is determined by the KRS based on the net costs 
calculated using ‘the Method’. Paragraph 14 of that method contains criteria for 
establishing the presence and the amount of the disproportionate financial burden, 
which must be met simultaneously: (i) the amount of net costs must be a positive 
number; (ii) the balance from the financial accounts settlements with other postal 
administrations cannot cover the amount of net costs; (iii) the proportional amount 
of net costs must be more than 3% of the total revenue from the universal postal 
service; (iv) the analysis of the financial and economic situation of the responsible 
operator must show that there is a ‘disproportionate financial burden’ within the 
meaning of the supplementary provisions of the ZPU. 
3 By Decision No 332 of 13 October 2022 the KRS found inter alia that (i) the 
amount of net costs for the provision of the universal postal service by ‘Balgarski 
poshti’ EAD amounted to Bulgarian leva (BGN) 28 456 000 for 2021 and (ii) 
those net costs totalling BGN 28 456 000 constituted a disproportionate financial 
burden resulting from the provision of the universal postal service. Prior to taking 
that decision, pursuant to Paragraph 29a(4) of the ZPU, the KRS had an audit of 
the documents pertaining to the calculation of the net costs of the universal postal 
service performed by a registered auditor (‘KPMG Audit’ OOD) engaged by it, 
who, moreover, issued an evaluation that the total amount of net costs for 2021 
resulting from the provision of the universal postal service constituted a 
disproportionate burden. The KRS had no objections to the analysis undertaken 
and supported the assessment issued by the ‘KPMG Audit’ OOD regarding the 
evaluation of the disproportionate burden. The regulatory authority acknowledged 
that, as a result of the obligation to provide the universal postal service, the 
operator bound by that obligation had suffered a financial burden, evidence of 
which was furnished by the indicators examined, as referred to in Paragraph 14 of 
‘the Method’. At the same time, in view of its poor financial situation, the 
company was unable to bear the financial burden incurred without receiving 
compensation for the disproportionate financial burden. 
4 However, under Paragraph 29a of the ZPU, the KRS is not to make the decision 
regarding the amount of compensation, but to refer its decision and the associated 
documents to the deputy minister commissioned by the Council of Ministers for 
the implementation of state policy in the postal services sector (that is to say, the 
Deputy Prime Minister for Economic Policies and Minister for Transport and 
Communications). Within the framework of the budgetary procedure, the latter 
must provide the Finance Minister with a proposal for the inclusion of the amount 
of funds for compensation for the disproportionate financial burden in the draft 
legislation on the national budget of the Republic of Bulgaria for the following 
year. 
5 ‘STAR POST’ OOD is one of the undertakings in Bulgaria with a licence for the 
provision of ‘services falling within the scope of the universal postal service’ 
under Paragraph 39 of the ZPU. However, the referring court notes that, in the 
context of an ex officio audit, ‘STAR POST’ OOD’s individual licence for the 
provision of such services in the territory of the Republic of Bulgaria was revoked 
STAR POST 
 
5 
by Decision No 289 of the KRS of 18 August 2022, while the referring court has 
been unable to find whether a provisional enforcement of that decision had been 
allowed. That decision was challenged by ‘STAR POST’ OOD and the case is 
currently pending before the Varhoven administrativen sad (Supreme 
Administrative Court) (‘the VAS’) as the court of cassation (Administrative Law 
Case 3682/2023). 
6 ‘STAR POST’ OOD brought an action before the ASSG against the contested 
Decision No 332/13.10.2022 of the KRS (‘contested decision of the KRS’) in the 
main proceedings. That court dismissed the action by Decision No 9872 of 
15 December 2022 in Administrative Law Case 10456/2022 and closed the 
proceedings in that case on the basis of Paragraph 159(4) of the APK (lack of 
legal interest in bringing proceedings). In support of that legal outcome, the court 
of first instance stated that ‘STAR POST’ OOD was not the addressee of the 
contested legal act and that this neither constituted direct and immediate rights and 
obligations for that undertaking, nor did it impair its rights, freedoms or legitimate 
interests (Paragraph 147 of the APK). 
7 ‘STAR POST’ OOD lodged an appeal before the referring court against the 
decision of the ASSG. 
Essential arguments of the parties in the main proceedings 
8 As one of the undertakings in Bulgaria holding a licence for the provision of 
‘services falling within the scope of universal postal service’ and a licence for the 
provision of services that are not part of the universal postal service, ‘STAR 
POST’ OOD was in competition in both markets (universal postal services and 
non-universal postal services) with BP, which was entrusted with the provision of 
the universal postal service and which was awarded the total amount of the net 
costs in the contested decision of the KRS; for that reason, it was recognised (in 
the contested decision) that those costs constituted a ‘disproportionate financial 
burden’. On the basis of that decision, BP therefore allegedly received state aid (a 
subsidy). For ‘STAR POST’ OOD, as a participant in various public procurement 
procedures the competition with BP was felt most acutely. The abnormally low 
prices offered by BP in that procedure had given reasonable grounds to suspect 
that the subsidies which BP received universal postal service for the operation of 
the universal postal service entrusted to it were used to cover the costs of the 
postal services and other activities falling outside of the universal postal service, 
and that this had led to distortions of competition. In other judicial proceedings, 
the appellant has already contended that BP was in receipt of unlawful state aid, 
but that argument has never been examined by the adjudicative bodies on the 
grounds that the cost of the universal postal service is approved by the KRS each 
year in an administrative procedure initiated at the request of BP ‘in order to 
compensate for the disproportionate financial burden resulting from the provision 
of the universal postal service’. Accordingly, the appellant has not yet had an 
opportunity to prove its allegation of alleged unlawful cross-subsidising. It 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-476/23 
 
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therefore deliberately contested the decision of the KRS to recognise the value of 
the total amount of the net costs of BP’s provision of the universal postal service 
in 2021, but the proceedings were wrongly closed by the court of first instance on 
the grounds that the appellant had no interest in bringing proceedings. According 
to the appellant, the position of the court of first instance is, however, inconsistent 
with substantive law (the objectives and provisions of Directive 97/67). The 
contested decision of the KRS was one of the decisions taken by the national 
regulatory authority under Article 14, in conjunction with Article 22(3), of 
Directive 97/67 (another such decision is the decision to coordinate the results of 
the implementation of the cost allocation system of the ‘Balgarski poshti’ EAD). 
Therefore, that decision can be challenged by ‘any user’ of the universal postal 
service and by ‘any postal service provider affected by it’; the right of ‘STAR 
POST’ OOD to challenge the decision of the KRS stems directly and expressly 
from Article 22(3) of Directive 97/67: first, in view of the ineffective control 
exercised over BP by the national regulatory authority, competing undertakings 
could challenge the decisions of the regulatory authority if they breached the 
principle of ensuring a competitive environment; secondly, the appellant is also a 
user of the universal postal service and, in that capacity – and not only as a postal 
service provider affected by a decision of a national regulatory authority – is 
entitled to the right to a legal remedy. The close of the proceedings therefore 
constituted a violation of the right to an effective remedy for the purposes of 
Article 22 of Directive 97/67 and within the meaning of Article 47 of the Charter 
of Fundamental Rights. 
9 Furthermore, the appellant asks the referring court, in case of doubt, to refer three 
questions to the Court of Justice for preliminary ruling on the interpretation of the 
terms (‘affected’ and ‘user’) used in Article 22(3) of Directive 97/67. 
10 The defendant contends that the appeal and the request for preliminary ruling are 
unfounded. Article 22(3) of Directive 97/67 guarantees those affected by the 
decisions of the regulatory authority an effective remedy before an independent 
body. At national level, that mechanism was implemented through the complaints 
procedure under the APK. However, the class of eligible appellants is not 
unlimited, but depends on whether the persons are affected by the contested 
decision. According to the defendant, ‘affected persons’ in procedural terms are 
those persons who bear the material consequences of the authority’s expression of 
will. The negative effect (in the sense of an impairment) is a legal consequence of 
the legal act and may consist in the suspension or limitation of existing subjective 
rights, or in the creation of new ones, or the extension of existing legal 
obligations. In any event, the existence of a subjective right or an interest 
protected by law must be demonstrated. In the present case, according to the 
defendant, the annulment of the legal act would not lead to any change in the legal 
situation of ‘STAR POST’ OOD. If the appellant’s argument were to be followed, 
this would also result in extreme legal uncertainty. 
STAR POST 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
11 The subject matter of the main proceedings is whether the appellant has a legal 
interest in challenging the decision of the KRS as regards the recognition of the 
value of the total amount of the net costs for the provision of the universal postal 
service by BP in 2021. 
12 In order to justify its legal interest, the appellant argues that it has a licence for the 
provision of services falling within the scope of the universal postal service and 
submits that competing undertakings could challenge the regulatory authority’s 
decisions if those decisions were to breach the principle of ensuring a competitive 
environment. 
13 The decision of the KRS in question is one of the decisions taken by the national 
regulatory authority under Article 14, in conjunction with Article 22(2), of 
Directive 97/67 (as amended by Directive 2008/6). The provisions of the directive 
require compliance with the competition rules in the postal sector. The freedom of 
action of the Member States is also limited by the application of the TFEU and its 
provisions on competition and the freedom to provide services. In addition, the 
state aid rules of EU law ensure that universal service providers do not receive 
undue advantages over their competitors. 
14 In order to answer the question of whether the appellant has a legal interest in 
challenging the decision of the KRS, the term ‘postal service provider who is 
affected by a decision of a national regulatory authority’, within the meaning of 
Article 22(3) of Directive 97/67 (as amended by Directive 2008/6), needs to be 
interpreted in the context of the facts of the main proceedings (according to the 
findings of the referring court, the Court has not yet given such an interpretation). 
15 In the light of the foregoing, the referring court, having regard to the principle of 
the primacy of EU law over national law and taking into account the obligation to 
comply with that directive, considers that it must refer two of the questions put by 
the appellant (the first and the third questions) to the Court of Justice for a 
preliminary ruling. 
16 As regards the second question put forward by the appellant (whether it can bring 
proceedings against the decision of the KRS as a ‘user’ of the universal postal 
service), the referring court considers that this question should not be referred to 
the Court of Justice, since the appellant merely submitted in both courts that it was 
operating as a provider of ‘postal services falling within the scope of the universal 
postal service’, which was in competition with BP in the postal services market, 
and did not submit any facts showing that it was a user of the universal postal 
service.