JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
25 March 2015 (*)
(Competition — Abuse of dominant position — Slovakian traditional mail and hybrid mail services markets — Decision finding an infringement of Article 86(1) EC in conjunction with Article 82 EC — Exclusive right to distribute hybrid mail — Principle of sound administration — Obligation to state reasons — Right to be heard — Definition of the market — Extension of a monopoly — Article 86(2) EC — Legal certainty — Legitimate expectations)
In Case T‑556/08,
Slovenská pošta a.s., established in Banská Bystrica (Slovakia), represented initially by O. Brouwer, C. Schillemans and M. Knapen, then by O. Brouwer and P. Schepens and, lastly, by O. Brouwer and A. Pliego Selie, lawyers,
applicant,
supported by
Slovak Republic, represented by B. Ricziová, acting as Agent,
intervener,
v
European Commission, represented initially by R. Sauer, A. Tokár and A. Antoniadis, and subsequently by R. Sauer, A. Tokár and C. Vollrath, acting as Agents,
defendant,
supported by
Cromwell a.s., established in Bratislava (Slovakia),
Slovak Mail Services a.s., established in Bratislava,
Prvá Doručovacia a.s., established in Bratislava,
represented initially by M. Maier and P. Werner, and subsequently by P. Werner, lawyers,
and by
ID Marketing Slovensko s.r.o., formerly TNT Post Slovensko s.r.o., established in Bratislava, represented initially by J. Ellison, Solicitor, and T. Rybár, lawyer, and subsequently by T. Rybár and I. Pecník, lawyers,
interveners,
APPLICATION for annulment of Commission Decision C(2008) 5912 final of 7 October 2008 on the Slovakian postal legislation relating to hybrid mail services (Case COMP/39.562 — Slovakian postal law),
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis, President, O. Czúcz and A. Popescu (Rapporteur), Judges,
Registrar: K. Andová, Administrator,
having regard to the written procedure and further to the hearing on 26 March 2014,
gives the following
Judgment
Legal context
A –  National legislation before 1 April 2008
1.     Postal Law
1        Article 5(2) of zákon č. 507/2001 Z.z. o poštových službách v znení zákonov č. 15/2004 Z.z., č. 191/2007 Z.z. a č. 659/2007 Z.z. (Law No 507/2001 on Postal Services, amended by Law No 15/2004, Law No 199/2004, Law No 191/2007 and Law No 659/2007, ‘the Postal Law’) provides as follows:
‘The provision of postal services occurs if the scope of business of the entrepreneur is clearance and delivery of communications and items that are postal items under [Article 4 of the Postal Law].’
2        Article 7(2) of the Postal Law provides:
‘The postal reservation comprises clearance (collection) and distribution of:
(a)      items of correspondence and direct mail items up to 50g in weight;
…’
2.     General Authorisation
3        The General Authorisation for providing postal services in accordance with the Postal Law was adopted by the Slovak Postal Regulatory Office (‘the postal regulator’) on 5 March 2004, pursuant to Article 14 of the Postal Law (‘the General Authorisation’).
4        Under Article 1(5) of the General Authorisation, ‘[d]ocument exchange and hybrid mail do not satisfy the criteria according [to Articles 2 and 4 of the Postal Law] and they are not considered [a] postal service according [to the Postal Law]’.
B –  National legislation after 1 April 2008
1.     Amended Postal Law
5        On 15 February 2008, the Postal Law was amended by zákon č. 80/2008 Z.z. ktorým sa mení a doplňa zákon č. 507/2001 Z.z. o poštových službách (Law No 80/2008 of 15 February 2008 amending Law No 507/2001 on Postal Services), which was adopted by the Slovak Parliament and entered into force on 1 April 2008 (‘the amended Postal Law’). Articles 5(2) and 7(2) of the Postal Law were thereby amended.
6        Article 5(2) of the amended Postal Law provides that ‘[t]he provision of postal services occurs if the scope of business of the entrepreneur is clearance or delivery of communications and items that are postal items under [Article 4 of the Postal Law]’.
7        Article 7(2) of the amended Postal Law provides:
‘The postal reservation comprises clearance (collection) or distribution of:
(a)      items of correspondence and direct mail items up to 50g in weight;
…’
2.     Amended General Authorisation
8        On 18 July 2008, an amended version of the General Authorisation was published and entered into force (‘the amended General Authorisation’). In the amended General Authorisation, Article 1(5) of the General Authorisation was repealed.
Presentation of the applicant
9        Since 1 October 2004, the applicant, Slovenská pošta a.s., has been a limited company wholly owned by the Slovak State. At the time the contested decision was adopted, Slovenská pošta was the provider of the universal postal service in Slovakia.
Background to the dispute
10      In November 2007, members of the Slovak Parliament proposed an amendment to the Postal Law so that the delivery of hybrid mail would, without any possible ambiguity, be reserved to the applicant.
11      At the beginning of February 2008, the Commission of the European Communities, after being informed of the proposed amendment to the Postal Law, sent a letter to the Slovak authorities to express its concerns as to the compliance of the proposed amendment with the requirements of 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 (OJ 1998 L 15, p. 14) as amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002, with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21, ‘the Postal Directive’), and in particular with Article 7 of the Postal Directive in conjunction with recital 21 in the preamble to that directive.
12      On 15 February 2008, the proposal to amend the Postal Law was adopted by the Slovak Parliament and entered into force on 1 April 2008. It amended Articles 5(2) and 7(2) of the Postal Law.
13      In March 2008, the Slovak authorities replied to the Commission, stating that neither the Postal Law nor the regulatory framework for the provision of postal services was modified by the proposed amendment to the Postal Law. They stated that the delivery of hybrid mail had always been reserved to the applicant.
14      During March, April and May 2008, the Commission sent various requests for information to market participants, namely Slovak Mail Services a.s and Slovak Telekom a.s., and the postal regulator. The Commission, inter alia, asked the postal regulator to provide it with separate accounts for the applicant, drawn up in accordance with the Postal Directive, for the years 2005 to 2007. The accounts were sent to the Commission in April and May 2008. On 1 April 2008, Slovak Telekom replied to the Commission’s request for information (‘Slovak Telekom’s reply to the Commission’s request for information’).
15      On 18 June 2008, the Commission sent the Slovak authorities a letter of formal notice (‘the letter of formal notice’), which included 26 annexes with the relevant information and documents which it had received up to that point. A copy of those documents was sent to the applicant. The Commission invited the Slovak authorities and the applicant to submit their comments on those documents within one month. In the letter of formal notice, the Commission stated that it had come to the preliminary conclusion that the Slovak Republic had infringed Article 86 EC in conjunction with Article 82 EC. In addition, it stated that it took the view that the State measure at issue could cause serious and irreparable harm to competition on the hybrid mail market unless interim measures were ordered. For that reason, the Commission invited the Slovak authorities and the applicant to submit to it, within a two-week deadline, their comments as regards possible interim measures.
16      By letters of 1 and 16 July 2008, the Slovak authorities replied to the letter of formal notice from the Commission, and the applicant replied by letter of 1 July 2008.
17      On 18 July 2008, the amended General Authorisation was published and entered into force.
18      On 8 August 2008, the Commission sent further requests for information to Slovak Mail Services, Slovak Telekom and Prvá Doručovacia a.s., which they answered.
19      On 14 August 2008, the Commission sent further requests for information to the Slovak authorities and to the applicant, requests which they answered by letters of 22 and 28 August 2008, respectively, which were received and registered by the Commission on 1 September 2008, that is on the date on which the time-limit set by it expired.
20      On 2 September 2008, TNT Post Slovensko s.r.o. sent a document to the Commission on its own initiative.
21      By letter of 19 September 2008, the Commission sent a letter of facts to the Slovak authorities and the applicant, in order to communicate to them the information requested from and provided by other market participants which had not yet been sent to them. The Slovak authorities and the applicant replied by letters of 24 September 2008.
22      On 7 October 2008, the Commission adopted, pursuant to Article 86(3) EC, Decision C(2008) 5912 final on the Slovak postal legislation relating to hybrid mail services (Case COMP/39.562 — Slovak Postal Law) (‘the contested decision’).
Contested decision
23      In the contested decision, the Commission defined hybrid mail for the purposes of that decision as a service whereby the content of communications is electronically transmitted to the service provider, electronically processed and converted into the physical form of a letter mail item, which is printed, enveloped and then physically delivered to the addressee (recitals 1 and 34).
24      After setting out the relevant provisions of the Slovak postal legislation and the facts (recitals 2 to 75), the Commission summarised the observations of the Slovak Government and Slovenská pošta (recitals 76 to 84).
25      Next, the Commission analysed the State measure at issue, in the light of Article 86(1) EC and then Article 86(2) EC (recitals 85 to 199).
26      In the first place, the Commission examined the State measure at issue in the light of Article 86(1)(EC) and reached the conclusion that the Slovak Republic had infringed Article 86(1) EC in conjunction with Article 82 EC (recitals 85 to 158).
27      First, the Commission found that Slovenská pošta was a public undertaking within the meaning of Article 86(1) EC, to which the postal Law reserved the right to distribute certain postal items, as defined in Article 7 of that Law, and therefore Slovenská pošta enjoyed exclusive rights within the meaning of Article 86(1) EC. The Commission took the view that the proposed amendment to the Postal Law constituted a State measure for the purposes of Article 86(1) EC, as did the enforcement measures taken by the Slovak authorities against an alleged breach of the reserved area (recitals 85 to 88).
28      Secondly, the Commission defined two relevant services markets, namely (i) the traditional mail services market and (ii) the hybrid mail services market, hybrid mail services constituting a separate, but neighbouring services market, because those services shared certain similarities with traditional mail services while fulfilling different needs of users (recitals 89 to 110). The Commission took the view that the relevant geographical markets coincided with the territory of the Slovak Republic (recitals 111 and 112).
29      Thirdly, the Commission found that Slovenská pošta held a dominant position on the market for traditional mail services (recital 113).
30      Fourthly, the Commission found that the State measure at issue infringed Article 86(1) EC in conjunction with Article 82 EC (recitals 114 and 115). It took the view that the amendment to the Postal Law had extended the exclusive rights of Slovenská pošta to the activity of delivering items of hybrid mail, an activity which, before that amendment, was de iure and de facto open to competition in Slovakia, and that — contrary to the arguments of the Slovak Republic and Slovenská pošta — that amendment had not simply clarified the fact that the delivery of hybrid mail items was already, before the adoption of that amendment, part of the reserved area (recitals 116 to 148). Moreover, the Commission took the view that the State measure at issue had limited the services available to end-users, such as track-and-trace services and seven-days-a-week delivery, although there was demand for such services (recitals 149 to 155).
31      Fifthly, the Commission took the view that that abuse was capable of affecting trade between Member States (recitals 156 and 157).
32      In the second place, the Commission examined the State measure at issue in the light of Article 86(2) EC (recitals 159 to 198). It found that the Slovak Republic had failed to prove that, if the hybrid mail services had remained open to competition, the achievement of the universal service would have been jeopardised or, at the very least, could not have been carried out under economically acceptable conditions (recitals 165 to 167, 192, 199).
33      First, the Commission stated that it was incumbent on a Member State which invoked Article 86(2) EC to show that the conditions for application of that provision were met (recital 160). It stated that, for the purposes of the assessment, under Article 86(2) EC in conjunction with Article 7 of the Postal Directive, of a possible justification of the reservation of hybrid mail delivery to the universal service provider, it took into account Slovenská pošta’s universal service obligations to the extent that they concerned universal postal services within the meaning of Article 3 of the Postal Directive (recital 164).
34      Secondly, the Commission found that the Slovak Government had not provided any detailed information or a reliable estimate of Slovenská pošta’s universal service costs (recitals 168 to 178). In addition, it found that the Slovak Government and Slovenská pošta had failed to provide either a reliable estimate of the impact of the liberalisation of hybrid mail delivery on the profitability of Slovenská pošta, or any evidence to support their assertion that the financial stability of Slovenská pošta’s postal services would be threatened (recitals 179 to 191). The Commission also found that neither the Slovak Republic nor Slovenská pošta had established that the reservation of the delivery of hybrid mail constituted the most proportionate measure to ensure the achievement of the universal service or that such service could not be carried out under economically acceptable conditions, taking into account the investments made by private operators to enter the market for the delivery of hybrid mail (recitals 193 and 194). Lastly, the Commission found that the extension of Slovenská pošta’s postal reservation, on the ground that other postal operators had in some instances provided a poor quality service, was not necessary to ensure the quality of that service (recitals 195 to 198).
35      The operative part of the contested decision includes the following provisions:
‘Article 1
Article 5(2) of [the amended Postal Law], the [amended] General Authorisation …, the interpretation of these acts and their preceding versions by the Slovak authorities, in particular by the Postal Regulatory Office, as well as enforcement measures undertaken against private operators, are contrary to Article 86(1) [EC], read in conjunction with Article 82 [EC] to the extent that they reserve to Slovenská pošta the delivery of hybrid mail items which was previously open to competition and that they enforce such a reservation.
Article 2
The Slovak Republic shall inform the Commission, within one month of being notified of this decision, of the measures it has taken to put an end to the infringement identified in Article 1.
Article 3
This Decision is addressed to the Slovak Republic.’
Procedure and forms of order sought
36      By application lodged at the Court Registry on 17 December 2008, the applicant brought this action.
37      By document lodged at the Court Registry on 15 April 2009, the Slovak Republic sought leave to intervene in the present proceedings in support of the form of order sought by the applicant. By order of 7 July 2009, the President of the Fifth Chamber of the Court granted leave to intervene. The intervener lodged its statement in intervention and the other parties lodged their observations on the statement within the prescribed periods.
38      By document lodged at the Court Registry on 16 April 2009, Cromwell a.s., Slovak Mail Services a.s. and Prvá Doručovacia, a.s. (‘Cromwell and Others’) applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 7 July 2009, the President of the Fifth Chamber of the Court granted those parties leave to intervene. The Court reserved the decision on the merits of the requests for confidential treatment submitted by the applicant in connection with those interveners, concerning certain information contained in the application and the annexes thereto and in the defence and the annexes thereto. The interveners lodged their statement in intervention, without submitting observations on the requests for confidential treatment. Non-confidential versions of the various procedural documents, prepared by the applicant, were communicated to those interveners. The applicant lodged its observations on the statement in intervention within the prescribed period.
39      By document lodged at the Court Registry on 17 April 2009, TNT Post Slovensko, now ID Marketing Slovensko s.r.o., sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 7 July 2009, the President of the Fifth Chamber of the Court granted that party leave to intervene. The Court reserved the decision on the merits of the requests for confidential treatment submitted, on the one hand, by the applicant in connection with that intervener, concerning certain information contained in the application and the annexes thereto and in the defence and the annexes thereto and, on the other hand, by the Commission, concerning certain information contained in the defence and the annexes thereto. The intervener lodged its statement in intervention. It stated that it raised no objections to the requests for confidential treatment. Non-confidential versions of the various procedural documents, prepared by the applicant and the Commission, were communicated to that intervener. The applicant lodged its observations on the statement in intervention within the prescribed period.
40      On 30 November 2010, the present case was reassigned to a new Judge­Rapporteur sitting in the Second Chamber. After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was then assigned to the Ninth Chamber, to which the present case was therefore assigned.
41      Upon hearing the Report of the Judge-Rapporteur, the Court (Ninth Chamber) decided, on 21 January 2014, to open the oral procedure and, in respect of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put some written questions to the parties and asked them to produce certain documents. The applicant and the Commission acceded to those requests on 27 February 2014, with the Slovak Republic and ID Marketing Slovensko doing likewise on 26 and 25 February 2014, respectively. The applicant and the Commission stated that they were not applying for confidential treatment of the replies to the questions submitted by the parties and the documents produced.
42      The Commission also informed the Court that it did not maintain its application for confidential treatment vis-à-vis TNT Post Slovensko. On 20 March 2014, the non-confidential version of the defence, prepared by the applicant, was communicated to that intervener.
43      The parties presented oral argument and replied to questions put by the Court at the hearing on 26 March 2014.
44      At the end of the hearing, the Court gave the applicant the opportunity of stating, within a period expiring on 7 April 2014, extended to 14 April 2014, whether the objections contained in the contested decision differed from those raised in the letter of formal notice. The reply produced by the applicant within the period prescribed was communicated to the Commission for comments. The applicant stated that it was not applying for confidential treatment of its reply and the Commission’s comments on that pleading.
45      On 11 June 2014, the Court closed the oral procedure.
46      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
47      The Slovak Republic claims that the Court should uphold the applicant’s action.
48      The Commission contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs of the present proceedings.
49      Cromwell and Others and ID Marketing Slovensko contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred by them.
Law
50      The applicant puts forward four pleas in law in support of its action. The first plea in law alleges infringement of the principle of sound administration, on account of the absence of an appropriate investigation of all the facts and interests involved, and infringement of the obligation to state reasons as laid down in Article 253 EC. The second plea in law alleges infringement of the applicant’s right to be heard. The third plea in law alleges infringement of Article 86 EC in conjunction with Article 82 EC. The fourth plea in law alleges infringement of the principles of legal certainty and legitimate expectations.
51      The second and third pleas in law should be examined first, followed by the first plea in law and, lastly, the fourth plea in law.
A –  The second plea in law, alleging infringement of the applicant’s right to be heard
52      The applicant submits that, although it is not the addressee of the contested decision, the Commission was required to hear it before adopting that decision, in accordance with the judgment of 12 February 1992 in Netherlands and Others v Commission (C‑48/90 and C‑66/90, ECR, EU:C:1992: 63). The applicant argues that it is indeed directly affected by the contested decision as that decision contests the legality of the Slovak legislation granting an exclusive right to it and entails significant economic consequences for it. The case-law cited by the Commission is irrelevant.
53      The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes the merits of the applicant’s argument.
54      In the first place, it must be determined to what extent the applicant benefited from the right to be heard in the context of the procedure which led to the adoption of the contested decision.
55      The Court has held that it was clear from the judgment in Netherlands and Others v Commission, paragraph 52 above (EU:C:1992:63, paragraphs 50 and 51), that an undertaking to which Article 86(1) EC relates, which was the direct beneficiary of the State measure at issue, was expressly named in the applicable law, to which the contested decision expressly refers and which was directly affected by the economic consequences of that decision, was entitled to be heard by the Commission during that procedure (judgments of 8 July 1999 in Vlaamse Televisie Maatschappij v Commission, T‑266/97, ECR, EU:T:1999:144, paragraph 36, and 22 February 2006 in Le Levant 001 and Others v Commission, T‑34/02, ECR, EU:T:2006:59, paragraph 97).
56      In the present case, it is not disputed that the applicant is the direct beneficiary of the State measure at issue, namely the exclusive right, after 1 April 2008, to deliver hybrid mail items less than 50 grams, that the applicant is expressly referred to in the contested decision and is directly affected by the economic consequences of that decision. It is not disputed that the applicant benefits on that basis from the right to be heard.
57      By contrast, the parties disagree as to the extent of that right.
58      First, as regards the judgment of 8 July 2004 in Technische Glaswerke Ilmenau v Commission (T‑198/01, ECR, EU:T:2004:222, paragraph 192), cited by the Commission and which the applicant regards as irrelevant, the Commission rightly contends that, in the context of the procedure for reviewing State aid such as that referred to in Article 86(3) EC, there is a difference between the rights of the Member State responsible for granting the aid or the State measure at issue and those of the other interested parties. Those interested parties, including the beneficiaries of the measure at issue, cannot themselves claim a right to debate the issues with the Commission in the same way as may the Member State concerned to which the Commission’s decision is addressed.
59      Secondly, it is apparent from the judgment in Vlaamse Televisie Maatschappij v Commission, paragraph 55 above (EU:T:1999:144, paragraph 37), that observance of the right to be heard requires the Commission to communicate formally to the undertaking benefiting from the contested State measure the specific objections which it raises against that measure as set out in the letter of formal notice addressed to the Member State and in any subsequent correspondence, and to grant it an opportunity effectively to make known its views on those objections. However, it does not require the Commission to afford the undertaking benefiting from the State measure an opportunity to make known its views on the observations submitted by the Member State against which the procedure has been initiated in response to objections that have been addressed to it or in response to observations submitted by interested third parties, nor formally to transmit to it a copy of any complaint which may have given rise to the procedure.
60      Consequently, the applicant wrongly argues that that judgment cited by the Commission is irrelevant in that it deals with the right of third parties to gain access to and comment on observations of other parties to the procedure and only confirms that interested third parties do not have the same rights as Member States in Article 86(3) EC procedures, but does not relieve the Commission of its obligation to effectively hear interested third parties. Contrary to the applicant’s claims, in order to observe its right to be heard in the context of the administrative procedure in question, the Commission could, in accordance with the judgment in Vlaamse Televisie Maatschappij v Commission, simply communicate formally to the applicant the objections against the State measure and grant it the opportunity to make its views known on those objections. By contrast, the Commission was not required to debate the issues with the applicant.
61      In addition, although the right of the undertaking benefiting from the State measure to be heard covers all the factual and legal evidence which forms the basis for making the decision, it does not apply to the final position which the administration intends to adopt (see, by analogy, judgments of 21 January 1999 in Neue Maxhütte Stahlwerke and Lech-Stahlwerke v Commission, T‑129/95, T‑2/96 and T‑97/96, ECR, EU:T:1999:7, paragraph 231, and 20 April 2005 in Krüger v OHIM — Calpis (CALPICO), T‑273/02, ECR, EU:T:2005:134, paragraph 65).
62      In the second place, the Court must ascertain whether the applicant’s right to be heard has been observed.
63      First, it is apparent from the documents before the Court that, by letter of 18 June 2008, the Commission requested the Slovak Government to submit its comments on the complaints alleging, in essence, that the exclusive right granted to the applicant — following the amendment of the Postal Law — to deliver hybrid mail items less than 50 grams was incompatible with Article 86 EC in conjunction with Article 82 EC. The Slovak Government submitted its comments on those objections by letters of 1 and 16 July 2008, within the one-month period set.
64      A copy of that letter of formal notice, setting out the objections, was sent to the applicant. By that letter, the Commission therefore made clear to the applicant its specific objections to the State measure at issue, enabling it to submit is comments on them, which it did by letter of 1 July 2008.
65      Secondly, the applicant alleges infringement of its right to be heard, in the context of the administrative procedure, after the letter of formal notice was sent.
66      It must be borne in mind that, according to the case-law cited in paragraph 58 above, observance of the right to be heard requires the Commission to communicate formally to the undertaking benefiting from the contested State measure the specific objections which it raises against that measure as set out in the letter of formal notice addressed to the Member State and in any subsequent correspondence, and to grant it an opportunity effectively to make known its views on those objections. It follows from this that the beneficiary must have the opportunity to make its views known on any complaints in any correspondence subsequent to the letter of formal notice.
67      However, in its pleadings, the applicant does not expressly argue that the subsequent correspondence, namely the request for information of 14 August 2008 and the letter of facts of 19 September 2008 (see paragraphs 19 and 21 above), included complaints different from those set out in the letter of formal notice.
68      At the hearing, the applicant was questioned by the Court in that regard and, given its lack of response, at the end of the hearing the Court gave it the opportunity of stating within a prescribed period whether the objections in the contested decision differed from those in the letter of formal notice (see paragraph 44 above).
69      In its written reply of 14 April 2014, the applicant refers to four material changes, concerning (i) objective justification and the refusal to take into consideration an external consultant’s report, (ii) value added services, (iii) the amendment of the definition of hybrid mail and (iv) the reliance on an opinion of the Department of Approximation of Law, the unit in charge of reviewing compliance of national law with EU law within the Legislation Division of the Slovak Government (‘the Department of Approximation of Law’). That line of argument is challenged by the Commission in its observations on the applicant’s reply.
70      As regards the first point, concerning objective justification and the alleged refusal to take into consideration an external consultant’s report, the applicant submits in the application that in August 2008 — in reply to the request for information from the Commission and only eight days after receiving it — it provided detailed financial information, including an external consultant’s report, without being requested to do so by the Commission. The applicant considered it important to ensure that the Commission obtained a complete picture of the costs related to the universal service obligations. The applicant submits that although the Commission sent it 11 new documents on 19 September 2008, providing it with the opportunity to react to them, the Commission decided not to use that opportunity to express its reservations concerning the external consultant’s report. In its reply of 14 April 2014, the applicant states that if the Commission had doubts about that report, it should have allowed it to explain or amend the external consultant’s analysis.
71      It must, first of all, be pointed out, as the Commission observes, that that report could not have been mentioned in the letter of formal notice, since it was sent to the Commission only by letter of 28 August 2008, that is after the letter of formal notice was sent to the applicant.
72      Next, it must be pointed out that, in its request for information of 14 August 2008, that is after the applicant’s reply to the letter of formal notice, the Commission asked the applicant to ‘[e]xplain in detail the methodology used for estimation of costs of provisioning of universal service in Slovakia’, following the applicant’s statement that the costs of the universal service amounted to 1.7 billion Slovak crowns (SKK). The applicant sent the external consultant’s report, which was described as a ‘draft version’ in the document’s footers. The applicant has not stated that it sent a final report to the Commission, which states in its observations on the applicant’s reply of 14 April 2014 that it had never received such a final report.
73      Since the Commission had invited the applicant, in its letter of 14 August 2008, to provide it with additional information on the methodology used for determining the alleged costs of the universal service and the value of economic advantage connected with the reserved area, it was not then required, in order to comply with its obligation to hear the applicant, to revert to it again concerning the financial information communicated and the financial information relating to the methodology used, nor to use the external consultant’s report as a ‘basis for … discussion’, as the applicant claims.
74      As regards the second point, concerning value added services, the applicant notes in its reply of 14 April 2014 that, in paragraph 95 of the letter of formal notice, the Commission stated that ‘[b]ased on the information which [it had] available, the Slovak Post [was] not offering such supplementary services for hybrid mail correspondence shipments’. The applicant submits, in essence, that despite its protestations concerning that statement, the Commission adopted that conclusion in the contested decision.
75      It must be noted that the applicant thereby disagrees with the Commission as regards the added value of the services offered. However, it cannot be found that the Commission infringed the applicant’s right to be heard, since the applicant states that the Commission’s contentions in that regard were included in the letter of formal notice and that it disputed them ‘on multiple occasions’, ‘in particular [in its letter of] 24 September 2008 by means of its response to the Commission’s Letter of Fact’ (see paragraph 21 above). In addition, the Commission had requested the applicant, in the questionnaire sent to it on 14 August 2008, to explain in detail, if necessary, the various types of value added services which it offered. On 28 August 2008, the applicant replied to that questionnaire and those specific points.
76      As regards the third point, which concerns the amendment of the definition of hybrid mail, the applicant submits, in its reply of 14 April 2014, that, in the contested decision, the Commission used a different definition from that used in paragraph 14 of the letter of formal notice. In that letter, hybrid mail was defined as a service provided ‘in the place closest to the place of delivery’, whereas, in the contested decision, the Commission dismissed any relevance of proximity, alleging instead that ‘even if there [was] only one printing and production site per country’, the service provided could still qualify as hybrid mail.
77      In that regard, the Commission rightly notes that the contested decision, like the letter of formal notice, refers to the definition of hybrid mail taken from the Green paper on the development of the single market for postal services (Communication from the Commission COM(91) 476, June 1991).
78      In addition, in the application, the applicant raises the issue of the definition of hybrid mail on which the Commission questioned it in the request for information of 14 August 2008. As the applicant itself states, it had already set out its view on that definition and it was, by that request for information, invited again to give its view on that definition. Consequently, as the Commission rightly contends, the applicant disagrees with the merits of the Commission’s assessment in that regard, and it is not a question of a failure by the Commission to comply with its obligation to hear the applicant.
79      As regards the more specific issue of the relevance of the proximity of the production site to the delivery site, relied on by the applicant in its reply of 14 April 2014, it must be held, as the Commission found, that the applicant set out its view, in its reply to the letter of formal notice, as to the importance of the production site of postal items for the definition of hybrid mail.
80      Consequently, it cannot be found that the applicant has not had the opportunity to express its views on the definition of hybrid mail and, in particular, on the importance of the location of the production site of the postal items for the definition of hybrid mail.
81      As regards the fourth point, concerning the reliance on an opinion of the Department of Approximation of Law, which is referred to in recital 23 of the contested decision, the applicant states that it was taken by surprise by that reference.
82      In that regard, it is sufficient to note that that opinion was sent to the applicant by the Commission, by its letter of 19 September 2008, which included the letter of facts and the copy of the information requested from and provided by other market participants, which had not yet been sent to the applicant (see paragraph 21 above).
83      The applicant was thereby able to take cognisance of that opinion, at the latest when it received that letter, and, in any event, before the contested decision was adopted. It was therefore in a position to express a view on it in its reply to the Commission of 24 September 2008.
84      Consequently, it cannot be concluded that the applicant did not have the opportunity to be heard in that regard, nor that it was not heard regarding any complaints which differed from those set out in the letter of formal notice.
85      Thirdly, in the applicant’s view, the Commission did not seriously take into account its observations and never afforded it the possibility of addressing the Commission’s specific reservations concerning its arguments and the information put forward, although it had ample opportunity to do so. According to the applicant, the short time between the submission of its observations on the 11 documents sent on 19 September 2008 and the date on which the contested decision was adopted, 7 October 2008, is such that it must be concluded that sending those new documents was a mere formality, and that the Commission was not really willing to take serious account of the applicant’s reaction to them.
86      It must be borne in mind that, on 19 September 2008, the Commission sent the applicant 11 documents in order to communicate to it the information on which it might base its decision and gave the applicant the opportunity to submit comments, which it did by letter of 24 September 2008 (see paragraph 21 above). It must therefore be found that the Commission afforded the applicant the opportunity of being heard on that occasion also.
87      In addition, it must be noted that the letter of 24 September 2008 comprised four pages of information and addressed six points. In that letter, the applicant essentially commented upon three documents sent by the Commission on 19 September 2008 and, moreover, it dwelt on the absence of liberalisation of the hybrid mail market in Slovakia of mail within the weight limit of the universal service provider’s postal reservation. Accordingly, as the Commission argued at the hearing, it is not unreasonable to find that it was able to take cognisance of those comments and analyse them before the contested decision was adopted.
88      In addition, in so far as the applicant questions the content of the documents sent to it by the Commission on 19 September 2008, in particular as regards the alleged nature of the hybrid mail services offered by the alternative operators, it disputes the merits of the Commission’s assessment and its argument cannot show that its right to be heard has been infringed.
89      Furthermore, the applicant’s claim that the Commission has failed to take its comments into account must be rejected for the same reason. The applicant thereby complains that the Commission has not accepted its explanations, which is a disagreement as to the merits of the Commission’s assessment, and cannot constitute an infringement of the applicant’s right to be heard.
90      It follows from all the foregoing considerations that since the applicant does not deny that the Commission adopted the contested decision after affording it the opportunity of making its views known on the complaints set out in the letter of formal notice ‘on the Slovakian postal legislation relating to hybrid mail services’ (preamble to the contested decision) and it has not shown that those complaints differed from those made in the contested decision, it must be concluded that the applicant has been duly heard, in accordance with the case-law referred to in paragraph 58 above.
91      That conclusion is not called into question by the applicant’s argument that, in the context of two procedures which resulted in a Commission decision, the Commission had a meeting with the beneficiary of the measure at issue, enabling it to clarify its statements. First, the Commission is under no obligation to have such meetings and, secondly, it must be pointed out that the applicant does not argue that it requested such meetings, and that the Commission states that it never made such a request.
92      Having regard to all the foregoing, the second plea in law must be rejected.
B –  The third plea in law, alleging infringement of Article 86 EC in conjunction with Article 82 EC
93      The applicant submits that the Commission made a number of manifest errors in assessment and interpretation, in fact and law, as a result of which it misapplied Articles 86 EC and 82 EC in the contested decision.
94      The third plea in law is divided into two parts, the applicant alleging, in the first part, infringement of Article 86(1) EC in conjunction with Article 82 EC and, in the second part, misapplication of Article 86(2) EC.
1.     Infringement of Article 86(1) EC in conjunction with Article 82 EC
95      It must be recalled that, in accordance with Article 86(1) EC, in the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States must neither enact nor maintain in force any measure contrary to the rules contained in the EC Treaty, in particular those rules provided for in Article 82 EC.
96      Article 82 EC prohibits any abuse of a dominant position within the common market or in a substantial part of it in so far as it may affect trade between Member States.
97      In addition, it must be borne in mind that, according to the case-law, a Member State breaches the prohibitions laid down by Article 86(1) EC in conjunction with Article 82 EC if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights is led, merely by exercising the special or exclusive rights conferred upon it, to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (judgments of 22 May 2003 in Connect Austria, C‑462/99, ECR, EU:C:2003:297, paragraph 80, and 1 July 2008 in MOTOE, C‑49/07, ECR, EU:C:2008:376, paragraph 49 and the case-law cited). In this respect, it is not necessary that any abuse should actually occur (judgment in MOTOE, EU:C:2008:376, paragraph 49; see also, to that effect, judgment of 13 December 1991 in GB-Inno-BM, C‑18/88, ECR, EU:C:1991:474, paragraphs 23 to 25).
98      Accordingly, Articles 82 EC and 86(1) EC are infringed where a measure imputable to a Member State gives rise to a risk of an abuse of a dominant position (see judgment in MOTOE, paragraph 97 above, EU:C:2008:376, paragraph 50 and the case-law cited).
99      It is apparent from the case-law of the Court of Justice that a system of undistorted competition, such as that provided for by the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (see judgment in GB-Inno-BM, paragraph 97 above, EU:C:1991:474, paragraph 25 and the case-law cited; judgment in Connect Austria, paragraph 97 above, EU:C:2003:297, paragraph 83 and the case-law cited; and judgment in MOTOE, paragraph 97 above, EU:C:2008:376, paragraph 51 and the case-law cited).
100    It follows that if inequality of opportunity between economic operators, and therefore distorted competition, results from a State measure, such a measure constitutes an infringement of Article 86(1) EC in conjunction with Article 82 EC (judgment in Connect Austria, paragraph 97 above, EU:C:2003:297, paragraph 84).
101    The Court of Justice has indeed had occasion to state in this respect that although the mere fact that a Member State has created a dominant position by the grant of exclusive rights is not as such incompatible with Article 82 EC, the Treaty none the less requires the Member States not to adopt or maintain in force any measure which might deprive that provision of its effectiveness (judgments of 18 June 1991 in ERT, C‑260/89, ECR, EU:C:1991:254 paragraph 35; 19 May 1993 in Corbeau, C‑320/91, ECR, EU:C:1993:198, paragraph 11; and 10 February 2000 in Deutsche Post, C‑147/97 and C‑148/97, ECR, EU:C:2000:74, paragraph 39).
102    It follows from those considerations that infringement of Article 86(1) EC in conjunction with Article 82 EC may be established irrespective of whether any abuse actually exists. All that is necessary is for the Commission to identify a potential or actual anti-competitive consequence liable to result from the State measure at issue. Such an infringement may thus be established where the State measure at issue affects the structure of the market by creating unequal conditions of competition between companies, by allowing the public undertaking or the undertaking which was granted special or exclusive rights to maintain (for example by hindering new entrants to the market), strengthen or extend its dominant position over another market, thereby restricting competition; it is not necessary to prove the existence of an actual abuse.
103    Accordingly, it is sufficient to show that that potential or actual anti-competitive consequence is liable to result from the State measure at issue, and it is not necessary to identify an abuse other than that which results from the situation brought about by the State measure at issue.
104    In addition, it is apparent from consistent case-law that, although as a general rule the Court undertakes a comprehensive review of the question as to whether or not the conditions for the application of the competition rules are met, its review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers (see judgments of 17 September 2007 in Microsoft v Commission, T‑201/04, ECR, EU:T:2007:289, paragraph 87 and the case-law cited, and 9 September 2009 in Clearstream v Commission, T‑301/04, ECR, EU:T:2009:317, paragraph 93).
105    Likewise, in so far as the Commission’s decision is the result of complex technical appraisals, those appraisals are in principle subject to only limited review by the Court, which means that the Court cannot substitute its own assessment of matters of fact for the Commission’s (see judgments in Microsoft v Commission, paragraph 104 above, EU:T:2007:289, paragraph 88 and case-law cited, and Clearstream v Commission, paragraph 104 above, EU:T:2009:317, paragraph 94).
106    However, while the EU judicature recognises that the Commission has a margin of assessment in economic or technical matters, that does not mean that it must decline to review the Commission’s interpretation of economic or technical data. The Court must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgments in Microsoft v Commission, paragraph 104 above, EU:T:2007:289, paragraph 89 and the case-law cited, and Clearstream v Commission, paragraph 104 above, EU:T:2009:317, paragraph 95).
107    The applicant’s argument in the first part of the third plea in law, alleging infringement of Article 86(1) EC in conjunction with Article 82 EC by the applicant, must be assessed in the light of those considerations. The applicant alleges, first, that the relevant market has been incorrectly defined by the Commission, secondly, that a monopoly has not been extended into a neighbouring market and, thirdly, that downstream services to end-users have not been limited.
a)     Incorrect definition of the relevant market
108    The applicant, supported by the Slovak Republic, submits that, in recital 89 of the contested decision, the Commission incorrectly defined the relevant market by taking into account a market for hybrid mail services, separate from traditional postal services, whereas it should have defined a separate market for the traditional delivery of postal items and then assessed whether that market included the physical delivery of postal items generated in the context of hybrid mail.
109    In the first place, the applicant argues that the Commission’s definition of a separate market for hybrid mail services, which includes all levels of the distribution chain, including delivery, is erroneous, since it cannot be reconciled with the Commission’s Notice on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services (OJ 1998 C 39, p. 2, ‘the Postal Notice’), or previous Commission decisions in the postal sector and the Postal Directive. Therefore, ‘market reality’ does not justify departing from the definition of the market set out in the Postal Notice and applied by the Commission in three earlier decisions. In the second place, there is no reason to define the market for hybrid mail differently in Slovakia.
110    The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes the merits of the applicant’s arguments.
111    It should be borne in mind, first of all, that, as is apparent in particular from point 2 of the Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the Notice on market definition’), the definition of the relevant market is carried out, in the context of the application of Article 82 EC, in order to define the boundaries within which it must be assessed whether a given undertaking is able to behave, to an appreciable extent, independently of its competitors, its customers and, ultimately, consumers (see judgment of 1 July 2010 in AstraZeneca v Commission, T‑321/05, ECR, EU:T:2010:266, paragraph 30 and the case-law cited).
112    The concept of the relevant market implies that there can be effective competition between the products or services which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products or services forming part of the same market in so far as a specific use of such products or services is concerned (judgments of 13 February 1979 in Hoffmann-La Roche v Commission, 85/76, ECR, EU:C:1979:36, paragraph 28, and 30 January 2007 in France Télécom v Commission, T‑340/03, ECR, EU:T:2007:22, paragraph 80). The interchangeability or substitutability is not assessed solely in relation to the objective characteristics of the products and services at issue, but the competitive conditions and the structure of supply and demand on the market must also be taken into consideration (judgments of 9 November 1983 in Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, ECR, EU:C:1983:313, paragraph 37; 17 December 2003 in British Airways v Commission, T‑219/99, ECR, EU:T:2003:343, paragraph 91; and 15 December 2010 in CEAHR v Commission, T‑427/08, ECR, EU:T:2010:517, paragraph 67). As is apparent in particular from point 7 of the Notice on market definition, the relevant product or services market therefore comprises all those products or services which are regarded as substitutable by consumers, by reason of the products’ characteristics, their prices and their intended use (judgments in AstraZeneca v Commission, paragraph 111 above, EU:T:2010:266, paragraph 31 and the case-law cited, and CEAHR v Commission, EU:T:2010:517, paragraph 68).
113    Next, it must be noted that it is settled case-law that in so far as the definition of the product market involves complex economic assessments on the part of the Commission, it is subject to only limited review by the EU judicature (judgments in Microsoft v Commission, paragraph 104 above, EU:T:2007:289, paragraph 482; 7 May 2009 in NVV and Others v Commission, T‑151/05, ECR, EU:T:2009:144, paragraph 53; and CEAHR v Commission, paragraph 112 above, EU:T:2010:517, paragraph 66).
114    The applicant’s line of argument, supported by the Slovak Republic, concerning the definition of the relevant services markets by the Commission in the contested decision, must be analysed in the light of those considerations.
Contested decision
115    In the contested decision, the Commission defined the relevant markets as being, first, the traditional mail services market, involving the physical clearance, sorting, transport and distribution of mail items and, secondly, the hybrid mail services market involving the electronic transmission of communication content, electronic sorting and routing of mail items and their subsequent physical production and delivery to the address (recital 89).
116    In the contested decision, the Commission set out the reasons why it took the view that, referring in particular to the Notice on market definition and the Postal Notice, traditional mail services and hybrid mail services, as they existed in Slovakia, constituted distinct product markets (recitals 91 to 110). The Commission found that they differed as regards the general setting up of the chain of distribution (recitals 92 to 95) and the costs of dealing with traditional mail items and hybrid mail items (recitals 105 and 107). In the Commission’s view, traditional mail services and hybrid mail services differed also as regards the demand satisfied; that is to say, they differed as regards the interest of hybrid mail users (the senders of mail) in linking as far as possible the external distribution process to their own internal data treatment systems and integrating the two, since hybrid mail is a link between those systems, enabling costs to be improved, better customer relations to be built and developed and more effective invoicing (recitals 96 to 98). The Commission stated that hybrid mail services are sought by clients as a ‘package’ including all stages of the distribution chain, including printing and delivery, which was not suitable for all business clients (recital 99). Consequently, the Commission took the view that traditional mail services and hybrid mail services were perceived by users as different means of transmitting content, which were not, as such, interchangeable (recitals 101 and 102). In addition, the Commission found that traditional mail services and hybrid mail services were subject to different regulatory constraints in Slovakia, hybrid mail services, including the delivery of hybrid mail items, having been liberalised, unlike traditional mail services (recital 103).
The Postal Notice
117    The applicant, supported by the Slovak Republic, submits that the Commission does not explain why it was justified to depart from the market definition as set out in the Postal Notice, despite the fact that the Commission’s attention was drawn to the relevance of the Postal Notice for its own assessment. In that regard, the applicant submits that, as it and the Slovak Republic explained in their replies to the letter of formal notice, the Commission in its postal notice ‘consider[s] that a number of distinct product markets exist, like the clearance, sorting, transport and delivery of mail’ (point 2.2).
118    In addition, the applicant notes that the Postal Notice states that ‘market reality supports the opinion that clearance, sorting, transport and delivery of postal items constitute different markets’ (point 2.5). In that regard, the Postal Notice indicates that particular business customers may actively pursue possibilities of substituting distinct components of the final service in order to ‘balance the advantages and disadvantages of self-provision versus provision by the postal operator’. By way of example, the Commission refers to the fact that all postal operators allow ‘some kind of downstream access to distribution’.
119    According to established case-law, the Commission may lay down for itself guidelines for the exercise of its discretion by way of documents such as the Postal Notice, provided that they contain directions on the approach to be followed by that institution and do not depart from the Treaty rules (see, to that effect and by analogy, judgment of 12 December 2000 in Alitalia v Commission, T‑296/97, ECR, EU:T:2000:289, paragraph 99 and the case-law cited). In adopting rules of conduct and announcing by publishing them that they will apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, to that effect and by analogy, judgment of 2 December 2010 in Holland Malt v Commission, C‑464/09 P, ECR, EU:C:2010:733, paragraphs 46 and 47 and the case-law cited).
120    However, first, it must be held that, as the Commission contends, the Postal Notice provides general guidance, whereas the market can only be defined for each individual service and according to the particular circumstances of each case.
121    Secondly, the Commission stated, at point 2.5 of the Postal Notice, that within the general letter service ‘different activities can be recognised … which meet distinct needs and should in principle be considered as different markets; the markets for the clearance and for the sorting of mail, the market for the transport of mail and, finally, the delivery of mail’. The Commission added that, ‘[f]rom a competition-law point of view, the distinction between the four markets may be relevant’. Consequently, it must be found that, although the Commission stated that four markets could be distinguished, it did not state that they had necessarily to be distinguished.
122    In addition, point 2.2 of the Postal Notice states that the Commission will ‘in principle’ consider that a number of distinct product markets exist, like the clearance, sorting, transport and delivery of mail, and specifies that the Commission’s assessment of individual cases will be on the basis of the different market and regulatory situations in the Member States. Further, according to point 2.2, the Commission will take into account the grant of special or exclusive rights and also the fact that certain markets, relating to the clearance, sorting, transport and delivery of mail, are wholly or partly liberalised.
123    Lastly, as the Commission contends, point 8.2 of the Postal Notice states that, to the extent to which Member States grant special or exclusive rights for the service of general economic interest, that service ‘is to be considered a separate product-market in the assessment of individual cases’, in particular with regard to the liberalised markets.
124    It must therefore be found that, contrary to the claims of the applicant, supported by the Slovak Republic, the Postal Notice did not a priori oblige the Commission to distinguish the delivery of mail items from the other services, nor did it preclude it a priori from distinguishing between the market for traditional mail services and that for hybrid mail.
125    The Court must further examine the applicant’s argument, which is supported by the Slovak Republic, that the Commission wrongly distinguished between the traditional mail services and hybrid mail services markets in the light of the different market and regulatory situations in Slovakia.
The market in Slovakia
126    The applicant, supported by the Slovak Republic, submits that there was no reason to define the hybrid mail market differently in Slovakia. In that regard, it disputes the existence of both a demand for integrated hybrid mail services and of a supply of such services. In addition, it challenges the definition of two distinct markets in the light of the regulatory situation in Slovakia.
–       Demand in Slovakia
127    The applicant, supported by the Slovak Republic, submits that the Commission was wrong to claim, in recital 99 of the contested decision, that ‘[h]ybrid mail services [were] sought for by clients as a “package” including all stages of the distribution chain, including printing and delivery’. In reply to TNT Post Slovensko, which in its statement in intervention concurred with the Commission’s definition, the applicant states that the understanding of market participants was that hybrid mail is not an integrated service.
128    According to the applicant, the Commission relied solely on the call for tenders document of Slovak Telekom of 5 November 2007 (‘the Slovak Telekom call for tenders’) to claim what it conceives to be the understanding of hybrid mail market participants. Its claim is not only inconsistent with that call for tenders, but also with numerous other calls for tenders and established market practices. The various calls for tenders performed by customers illustrate that both customers and the alternative operators considered that there was an upstream market for mail preparation services and a downstream market for the physical delivery of mail items.
129    In the first place, it must be noted that, in the contested decision, the Commission stated that on 5 November 2007 Slovak Telekom had issued a call for tenders for ‘processing and delivering [its] invoices’ (recital 17).
130    The applicant, supported by the Slovak Republic, submits that the Slovak Telekom call for tenders evidences a very different understanding by the market participants than that pleaded by the Commission. The applicant observes that, before that call for tenders was launched, Slovak Telekom used two service providers offering different services, Cromwell providing mail preparation services, while the applicant was responsible for distribution. The Slovak Telekom call for tenders covered only the distribution market and the final parts of the distribution chain. It could not therefore establish that there was a demand for an ‘integrated hybrid mail service’.
131    The Slovak Republic adds that the behaviour of Slovak Telekom was in full accord with the assumption, set out in point 2.5 of the Postal Notice, that business customers actively pursue the possibilities of substituting distinct components of the final service for alternative solutions on the postal markets.
132    It must be noted that, in its reply to the Commission’s request for information, Slovak Telekom explained that printing, enveloping and pre-sorting were the ‘major parts’ of hybrid mail services and that distribution was ‘the final part’ of those services. Consequently, it must be found that, as the Commission argues, contrary to the Slovak Republic’s contentions, the expression ‘hybrid mail services’ does not imply that the services were separate, but shows that for Slovak Telekom it was a question of a unified service comprising individual phases.
133    Next, it must be noted that — contrary to the applicant’s claims and as the Commission, supported by Cromwell and Others and TNT Post Slovensko, states — the Slovak Telekom call for tenders did not only cover ‘the latter and final parts of the distribution chain’. According to the document relating to that call for tenders produced by the applicant, it covered ‘[p]rocessing and delivery of invoices of Slovak Telekom’.
134    In addition, Slovak Telekom awarded the contract to Slovak Mail Services and to Cromwell (recital 17 of the contested decision), thereby opting for an integrated service. In its reply to the Commission’s request for information, Slovak Telekom stated that those companies ‘ha[d] delivered an offer, which is fulfilling all [Slovak Telekom’s] requirements and also covers all the activities to be performed within hybrid mail services’. It must also be noted that TNT Post Slovensko states, in its statement in intervention, that as a bidder participating in the tender procedure, it had also submitted an offer of services covering the full hybrid mail spectrum, namely ‘the electronic collection/receipt of files, printing and enveloping, delivery and track and trace services’.
135    It must be noted, as the Commission contends, [confidential]. (1) Slovak Telekom’s assessment confirms that printing and enveloping were part of the service package finally required.
136    Therefore, the applicant’s argument that the Slovak Telekom call for tenders conveyed a distinct demand only for isolated services must be rejected.
137    In addition, it must be added that, as Cromwell and Others and TNT Post Slovensko state, the Slovak Telekom call for tenders began shortly before the legislative and regulatory changes which resulted in the adoption of the State measure at issue. Following the entry into force of those changes, the negotiations between Slovak Telekom, Slovak Mail Services and Cromwell were suspended (recital 17 of the contested decision). Accordingly, as Cromwell and Others and TNT Post Slovensko submit, that situation had a chilling effect upon the launching of calls for tenders for hybrid mail services including the delivery of items and, therefore, influenced the existence, or the development in demand for, such services.
138    Consequently, contrary to the claims of the applicant, supported by the Slovak Republic, the Slovak Telekom call for tenders does not evidence a very different understanding by the market participants from that found by the Commission in the contested decision.
139    In the second place, as regards the call for tenders organised by UniCredit Bank Slovakia a.s. and HVB Bank Slovakia a.s. in January 2007, the applicant submits that the Commission’s statement, referred to in paragraph 99 of the contested decision (see paragraph 127 above), must also be challenged. That call for tenders related only to the electronic data collection and printing, while physical delivery of the mail item was arranged separately and illustrates, contrary to what the Commission contends, that customers had an interest in the mail preparation services. The applicant further states that it had filed a complaint with the postal regulator on 21 June 2007, because Prvá Doručovacia had included delivery services for mail items through its own network in its tender.
140    First of all, it must be stated that it is apparent from the documents before the Court that the call for tenders was that of UniBanka a.s. and HVB Bank Slovakia, which merged to become UniCredit Bank Slovakia.
141    As the Commission, supported by Cromwell and Others and TNT Post Slovensko notes, it is apparent from the tender file that the services requested were not strictly limited to electronic data collection and printing, but the call for tenders also referred to the sending of mail.
142    In addition, as Cromwell and Others and TNT Post Slovensko state and the applicant itself notes, it is apparent from the postal regulator’s decision of 25 September 2007, concerning the applicant’s complaint against Direct Marketing — which related to the call for tenders in question and was based precisely on the inclusion of the mail delivery phase in Direct Marketing’s tender — that that tender did indeed include the delivery phase, carried out in the end by Prvá Doručovacia. It is apparent from the contract signed on 26 February 2007 between Direct Marketing, UniBanka and HVB Bank Slovakia that distribution was also included, which, as the Commission contends, was the unequivocal expression of the customer’s interest in it.
143    Therefore, contrary to the applicant’s claims, the call for tenders of UniBanka and HVB Bank Slovakia illustrated the existence of a demand for hybrid mail services comprising, in addition to the electronic data collection and printing, the physical delivery of mail. The fact that the delivery was carried out by another company did not alter the fact that such a demand existed, that service having been carried out by a subsidiary of Direct Marketing, in this case Prvá Doručovacia (recital 15 of the contested decision).
144    In the third place, as regards the call for tenders launched by Orange Slovensko a.s., on 2 September 2008, the applicant submits that the services covered by that call for tenders are data reception, data processing, data printing, enveloping of printed pages and handing over the item to the delivery company. All services upstream to the physical delivery of the mail item were separated from the physical delivery stage itself, which does not correspond to the definition of hybrid mail adopted by the Commission in the contested decision (recital 99 of the contested decision). The applicant states that, contrary to TNT Post Slovensko’s contentions, that call for tenders excluded the provision of the physical delivery of mail items covered by the reserved area.
145    It must be found, as the Commission, supported by Cromwell and Others and TNT Post Slovensko, notes, that the Orange Slovensko call for tenders encompassed three services (entitled ‘Service’, ‘Complementary Service’ and ‘Dispatch Service’) the description of which shows that they covered the entire chain of hybrid mail services from data reception and printing to enveloping and final delivery. In addition, the ‘Instructions for proposal preparation’ in response to that call for tenders stated that the tenderer was requested to ‘prepare the proposal including complete solution further to Annex I’, that is to say for all the services. As regards the dispatch service, the Orange Slovensko call for tenders stated that ‘[t]he supplier [would] ensure or provide the support for the performance of the Dispatch Service’, that ‘[in its tender it would] describe the way of provision of the Dispatch Service with specification of dispatch services provided: (a) in its own name (e.g. consignments to which the postal reservation does not apply); (b) through a subcontractor (e.g. consignments to which the postal reservation applies — Slovenská pošta, a.s)’. Furthermore, the call for tenders stated that, for the delivery of consignments weighing up to 50 grams, the tenderer had to provide a written opinion of the Postal Regulatory Office approving the way of provision of that service in the light of the amended Postal Law.
146    Lastly, it must be noted that the contract was awarded to Cromwell, and as is apparent from the contract signed on 1 April 2009 between that company and Orange Slovensko, it related to the entire chain of services, including delivery (see Article III, paragraph 3.1, point 6, and Article I of Annex 5 to the contract).
147    Therefore, contrary to what the applicant states, it must be found that the Orange Slovensko call for tenders also included the physical delivery of postal items and that it confirms that there was a demand for such delivery in the context of hybrid mail. On the other hand, it does not substantiate the applicant’s assertion that the inclusion of mail delivery services in the context of hybrid mail was not the result of the customers’ demand for such an integrated service, but rather the result of the alternative operators including those lucrative delivery services in their ‘integrated product’, which they offered to customers against discounted or low prices.
148    As the applicant submits, delivery was limited in that call for tenders to postal items not covered by the reserved area. That limitation must, however, be placed in the regulatory context existing at the time of the launch of the call for tenders, in September 2008, namely the amended Postal Law and the amended General Authorisation.
149    Lastly, it must be pointed out that the applicant stated, in its observations on the Commission’s request for information of 14 August 2008 to the Slovak Government, that, [confidential], and thereby recognised its own customers’ interest for those types of service.
150    In the fourth place, Cromwell and Others state that, prior to the amendment of the Postal Law and the adoption of the contested decision, they had other hybrid mail customers. In support of that argument, they have, for reasons of confidentiality, produced only a single contract for the supply of services.
151    In that regard, it must be found that, contrary to the applicant’s claims, the contract produced by Cromwell and Others, dated 3 January 2008 and concluded between Cromwell and AEGON, d.s.s., a.s., stated that the hybrid mail services had to be understood as including all the various phases, that is the phases from data transfer and processing to mail delivery, and it referred, in particular, to delivery (Article I, point 1.1 of the contract).
152    It follows from the foregoing considerations that, contrary to the applicant’s claims, it is apparent from the various calls for tenders cited by the main parties and the interveners that there was a demand for hybrid mail services, including the physical delivery of mail, not limited to the phases before delivery.
153    That conclusion is not called into question by the applicant’s other arguments. First, the applicant submits that the calls for tenders mentioned by Cromwell and Others immediately triggered complaints, leading to investigations by the postal regulator which led to its statement dated 30 November 2007. In the applicant’s view, those investigations and that statement have made it clear that the physical delivery of hybrid mail was covered by the postal reservation.
154    It must be found that that line of argument concerns the determination of the scope of the postal reservation, which depends on the regulatory context as a whole prior to the amendment of the Postal Law. However, there may be a market demand for a hybrid mail service, including mail delivery, irrespective of the regulatory context.
155    Secondly, the applicant submits that even if a customer were to request a hybrid mail service including all stages of the distribution chain, this does not imply that the traditional delivery of mail items cannot form a relevant product market of its own.
156    In that regard, contrary to what the applicant implies, the question is not solely whether or not the traditional delivery of postal items may constitute a relevant services market of its own, but whether hybrid mail services, including mail delivery, constitute a market of their own.
157    Thirdly, the Court must reject the applicant’s argument concerning KROS a.s., which TNT Post Slovensko gives as an example in its statement in intervention, stating that KROS a.s. envisaged moving towards ‘an integrated hybrid mail service’. In that regard, the applicant submits that the market for the traditional delivery of mail cannot be distinguished from the market for the delivery of hybrid mail, because that would lead in the one case to the delivery service being covered by the postal reservation, whereas in the other it would not.
158    It must be found that the example, cited by TNT Post Slovensko, confirms the existence of a demand from certain market participants for a full or integrated hybrid mail service, that is including the mail delivery phase. In addition, whether or not such a service is in fact covered by the postal reservation depends in the first place on the regulatory context in Slovakia, not the market definition adopted by the Commission.
159    Fourthly, the applicant submits that in the few cases where the customer did agree to purchase delivery services from alternative operators, either on a stand-alone basis or together with hybrid mail services, the customer appeared to have done so because of the discounted prices charged by the alternative operators for delivery services. The contested decision fails to take into account the impact of pricing policies of the alternative operators on the switching behaviour of customers, which is of crucial importance for the purpose of defining the relevant market. The applicant submits, relying on the Notice on market definition (points 13 and 15 to 19), that demand substitution on the Slovak market in relation to delivery services for hybrid mail confirms that, in the present case, the delivery service was a distinct product market.
160    In that regard, the applicant relies, first, on Slovak Telekom’s reply to question No 2 of the Commission’s request for information of 26 March 2008. Slovak Telekom stated that [confidential]. It must, however, be recalled that the Slovak Telekom call for tenders related to hybrid mail services, including the delivery of that mail. It cannot therefore be certain that Slovak Telekom’s comment on the financial conditions related only to delivery, since the question to which it replied concerned the main terms of the offers received.
161    The applicant relies, secondly, on a statement from KROS, in which the latter stated that it was interested in an ‘integrated hybrid mail service’, including the delivery service, offered by TNT Post Slovensko, having regard essentially to the cost reductions which could be made. It must be noted that the question posed to that company related to its possible interest in an ‘integrated hybrid mail service’ and that it answered in the affirmative, showing its interest in using hybrid mail services because of the annual costs for ‘postage’. Therefore, the fact that KROS expressed its interest for an integrated hybrid mail service, which would cost it less, in no way implies that it sought to separate delivery from the other services in the context of hybrid mail and that the delivery service in general had to be considered as a distinct services market, as the applicant submits.
162    Lastly, it must be noted that, in recital 105 of the contested decision, the Commission took into consideration, in order to distinguish hybrid mail services from traditional mail services, the impact of costs which are not solely linked to the delivery stage and, therefore, do not necessarily influence the delivery price alone.
163    In the light of the foregoing, as the Commission found in the contested decision and as it contends — supported by Cromwell and Others and TNT Post Slovensko — there was, contrary to the applicant’s claims, a demand in Slovakia for an integrated hybrid mail service, that is a service including the delivery phase.
–       Supply in Slovakia
164    The applicant, supported by the Slovak Republic, submits that there is no supply of an integrated hybrid mail service in Slovakia, namely a service including the delivery stage.
165    In the first place, the applicant notes that TNT Post Slovensko provides, inter alia, mail preparation services on a stand-alone basis in Slovakia, as is apparent from its website.
166    In that regard, it must be held that the existence of a supply of stand-alone services, if established, does not preclude the supply also of an integrated hybrid mail service. In addition, it must be borne in mind that, as the Commission noted in recital 55 of the contested decision, TNT Post Slovensko participated in the Slovak Telekom call for tenders by submitting a tender of services covering the full hybrid mail spectrum (see paragraph 134 above).
167    In addition, it must be pointed out, as the Commission observed at the hearing, that, in the applicant’s 2007 annual report, it was stated that ‘hybrid mail [wa]s a service of [the applicant], through which it provide[d] complex solutions for the processing of bulk mail’ and that ‘[that consisted] of a full service starting with the safe transmission of data, through processing of mail (printing and enveloping) and ending with posting of the processed mail to distribution by post’. The applicant therefore defines its hybrid mail service as a service not being limited to certain phases, such as mail preparation.
168    In the second place, the applicant submits that the observations made by the alternative operators confirm the existence of a fundamental difference between the upstream market for mail preparation services and the downstream market for the physical delivery of postal items. Slovak Mail Services and Cromwell confirmed that mail items which they were not able to deliver, that is in cases where Slovak Mail Services could not find the addressee by its own postmen, were re-sent through the applicant’s network (recital 51 of the contested decision). Likewise, Prvá Doručovacia distributed 30% of its postal items through the applicant’s network (recital 52 of the contested decision), only using its own network for the commercially attractive postal items to be delivered in areas with higher residential density. In addition, the business models of Slovak Mail Services and Cromwell confirmed the distinction between an upstream and a downstream market, in so far as ‘Cromwell dispose[d] of the equipment for printing [and] Slovak Mail Service ha[d] the delivery network for the distribution of postal items’ (recital 50 of the contested decision).
169    First, it must be found that, although the applicant relies on recitals 51 and 52 of the contested decision in arguing that the alternative operators used its network for the physical delivery of postal items in the context of hybrid mail, it is, however, apparent from those recitals that both Slovak Mail Services and Cromwell together, on the one hand, and Prvá Doručovacia, on the other, increasingly used their own distribution network for that purpose. The Commission also stated that Slovak Mail Services’ network had covered 88% of households at the end of 2007 (recital 51 of the contested decision) and Prvá Doručovacia’s network approximately 65% (recital 52 of the contested decision). In addition, in its reply to the Commission’s request for information, Slovak Telekom referred to a population coverage of 91.6% for the network of Slovak Mail Services and Cromwell and as regards delivery, and stated that ‘there [wa]s a clear direction to extend [Slovak Mail Services’] distribution network, so the current coverage w[ould] only grow’.
170    In addition, TNT Post Slovensko contends, without being disproved by the applicant, that its own distribution network covered 98% of Slovak territory.
171    Consequently, the Commission was fully entitled to take the view that the alternative operators offered an integrated hybrid mail service in Slovakia, not only a mail preparation service. The fact that the alternative operators did not already have total coverage does not refute that analysis. In addition, the fact that they already had a network with considerable coverage leads to the conclusion that, contrary to the applicant’s claims, the service that they offered was not limited to the profitable urban routes, leaving the applicant those which were not.
172    Secondly, it must be found that, contrary to what the applicant — supported, in essence, by the Slovak Republic — claims, the Commission did mention the organisational structure of Slovak Mail Services and Cromwell in the contested decision (recitals 50 and 51) and it did therefore take it into account. In that regard, the fact that Slovak Mail Services and Cromwell cooperated, because of their complementary activities, as the Commission stated, confirms their intention to offer an integrated hybrid mail service and does not preclude the supply of an integrated hybrid mail service.
173    In the third place, the applicant submits that the contested decision does not in any way establish that the alternative operators in Slovakia offered services at the delivery level in the context of hybrid mail which qualified as ‘new’ or ‘non-conventional’ delivery services within the meaning of the Postal Directive and the Commission’s decisional practice. Although the Commission mentions seven-days-a-week delivery and track-and-trace services (recitals 38 and 97 of the contested decision), it has not established that those services, even if already provided, had different features from the delivery of traditional mail and satisfied significantly different needs.
174    First, the applicant submits that the Commission failed to examine carefully and impartially which of the alleged value added services were delivered by alternative operators in the Slovak Republic, and whether the alleged seven-days-a-week delivery and the track-and-trace services were of any importance to customers of hybrid mail services. Since the applicant’s complaints form part of the first plea in law, the Court will respond to them when it examines that plea (see paragraphs 440 to 444, 456 to 460 and 464 below).
175    Secondly, the applicant claims that the track-and-trace service referred to in the contested decision is nothing more than a delivery report which the customer receives when the mail is delivered. The definition of the track-and-trace service in the contested decision is, in the applicant’s view, fundamentally different from the definition of track-and-trace services in Commission Decision 2001/176/EC of 21 December 2000 concerning proceedings pursuant to Article 86 of the EC Treaty in relation to the provision of certain new postal services with a guaranteed day- or time-certain delivery in Italy (OJ 2001 L 63, p. 59, ‘the Poste Italiane decision’). According to the applicant, TNT Post Slovensko does not confirm that it offers track-and-trace services, but states that it offers delivery reports, contending, without any supporting evidence, that it offers an integrated electronic delivery report for customers in the context of bulk mail.
176    Inasmuch as the applicant states that the definition of the track-and-trace service in the contested decision is fundamentally different from that adopted in the Poste Italiane decision, it must be noted that it is not apparent from the description of the particular delivery services in the Poste Italiane decision — namely guaranteed day- or time-certain delivery — that they were track-and-trace services similar to those described in the contested decision.
177    The applicant does not adduce any evidence to disprove the definition of the track-and-trace service provided in Slovakia, in the contested decision, which does not describe a simple delivery report, but a means of electronic transmission (i) providing, in particular, for each postal item information on whether or not it has been delivered, when it was delivered and a follow-up in the event of non-delivery, and (ii) enabling, as far as possible, the external distribution process to be linked to the internal system for treating the data of hybrid mail users and to integrate the two (recitals 38, 39, 97, 98, 150 and footnote No 9 of the contested decision).
178    Consequently, the fact that the services in the two Commission decisions differed does not imply that those mentioned in the contested decision did not constitute particular services in the context of hybrid mail services in Slovakia.
179    In addition, contrary to the applicant’s claims, TNT Post Slovensko has not confirmed that it offered only a delivery report in the sense which the applicant understands, since it has made clear that it offered a track-and-trace service within the meaning of the definition in the contested decision.
180    Lastly, it must be noted that, contrary to what the applicant implies, even if those reports, provided in the context of hybrid mail services, cannot serve as evidence in complaint procedures or in judicial proceedings, that does not disprove the Commission’s statement that those reports enable bad debts to be avoided (recitals 39 and 97 of the contested decision). The Commission explained the link that can be established between the external distribution process and a company’s own internal data treatment system (recital 97 of the contested decision). That monitoring allows a company to satisfy itself more systematically that delivery has taken place and therefore to pinpoint more swiftly a failure to deliver on account of a change of address, or indeed an incorrect address, thereby enabling the accumulation of debts to be avoided and preventing them from becoming more likely to become bad debts.
181    Thirdly, the applicant submits that the contested decision provides no evidence to support the statements that (i) seven-days-a-week delivery was a new service, in the sense that it satisfied a specific demand and (ii) that the delivery services of the alternative operators are not substitutable for the traditional delivery services of the applicant. The applicant offers a five-days-a-week delivery service in the context of hybrid mail to a large number of customers that are fully satisfied.
182    It is indeed true that the contested decision mentions the seven-days-a-week delivery service (recital 38 of the contested decision), without providing any specific information in order to substantiate that it was an existing service satisfying a specific delivery-related demand. However, it must be noted that, in its reply to the Commission’s request for information, Slovak Telekom referred to that service as an additional service, placing it third on the list of the four services cited.
183    In any event, since the seven-days-a-week delivery service is a secondary, non-essential factor in the Commission’s analysis of the services additional to delivery in the context of hybrid mail, the mere reference to seven-days-a-week delivery in the contested decision without any specific evidence cannot call into question the Commission’s findings in the contested decision as to the existence of a supply of an integrated hybrid mail service in Slovakia, ranging from data transmission to mail delivery with additional services, such as at the very least track-and-trace services.
184    In the light of all the foregoing, it must be held, contrary to the applicant’s claims, there is a supply of an integrated hybrid mail service in Slovakia, including the delivery phase.
185    The applicant does, admittedly, argue that mail delivery services in the context of hybrid mail fall within the scope of traditional (physical) mail delivery services and have always been caught by the postal reservation. The Slovak Republic takes the view that, contrary to the Commission’s statement, the regulatory framework for postal services could not, for services provided in connection with hybrid mail, create a legislative barrier within the meaning of the Notice on market definition (paragraph 42), nor serve as justification for the finding that all services provided in connection with hybrid mail are, in Slovakia, provided in one relevant market.
186    However, it is sufficient to note that, regardless of the regulatory context in Slovakia prior to the adoption of the State measure at issue, there was a supply — at least potentially — of an integrated hybrid mail service, including the delivery phase, not limited to mail preparation.
–       Conclusions
187    It follows from all the foregoing considerations that in Slovakia, in particular before State measure at issue was adopted — and contrary to the applicant’s arguments — certain types of business customers requested an integrated hybrid mail service, and that there was a supply of such a service. Consequently, the applicant’s statement that all hybrid mail services up to the physical delivery of the mail item by it were necessarily services distinct from the final phase of the physical delivery of the postal item cannot be reconciled with the market reality in Slovakia, as was rightly taken into consideration by the Commission in the contested decision.
188    In addition, it must be pointed out, as the Commission found, that the Slovak authorities stated in their reply to the letter of formal notice that the ‘term “hybrid mail” alone suggested that it combined postal service with other components’ and that ‘the subsistence of the traditional postal service was the fulfilment of the basic sender’s requirement to deliver a physical postal item containing a message to the addressee, which was also part of hybrid mail’. The applicant also stated, in its reply to the letter of formal notice, that ‘hybrid mail included several activities, namely withdrawal, electronic transmission, creation of the postal items (document printing, enveloping, address printing ...) and distribution of the postal items’. Further, the Commission found, in the contested decision, without contradiction by the applicant, that in a letter of 8 April 2008 the postal regulator stated that ‘the distribution of correspondence specified in the [Law] as being part of the reserved service [wa]s also included in the hybrid service process’ (recital 117).
189    Moreover, contrary to the applicant’s claims, that definition of the hybrid mail service, also including mail delivery, is not contradicted by the definition of the Universal Postal Union, a specialised agency of the United Nations, referred to in the contested decision (footnote No 6 of the contested decision). Even if that definition were relevant to the present case, it does not in fact exclude the delivery phase of hybrid mail. In addition, it cannot be concluded — contrary to the applicant’s statement — that according to that definition the alternative operators did not offer true ‘hybrid mail’ services as they only had one printing facility. It is sufficient to note that although the Universal Postal Service definition states that the information is generally transmitted by electronic means for the longest possible part of the process and physically reproduced at premises as close to the recipient’s address as possible, the use of the word ‘generally’ implies that this does not necessarily have to be the case, as the Commission noted, in recital 106 of the contested decision, when defining the relevant markets. Furthermore, even if it followed from the Universal Postal Service definition, as the applicant argues, that both the services resulting in the actual generation of the physical postal item and the delivery service itself can very well be provided by different operators, that definition does not imply that there cannot be an integrated hybrid service, including the delivery phase, provided by the same operator and which may be characterised as a hybrid mail service.
190    Lastly, the applicant challenges, in the reply, the distinction drawn by the Commission in the defence between traditional and hybrid mail services. In that regard, it is sufficient to note that since the applicant’s argument is not directed at a recital of the contested decision, in particular those relating to the definition of hybrid mail services, but challenges the Commission’s assessments in its pleadings, the argument must be rejected.
191    Consequently, the applicant, supported by the Slovak Republic, has failed to show that the market reality in Slovakia described by the Commission in the contested decision was erroneous, nor that, because of the specific features of the hybrid mail described in the contested decision, that mail was merely the combination of several elements of the value chain, and not a service as such.
192    It must therefore be concluded that the applicant, supported by the Slovak Republic, has failed to prove that, in the light of the Postal Notice and the market reality in Slovakia, the Commission had incorrectly defined the relevant services markets in the contested decision.
193    That conclusion cannot be called into question by the applicant’s argument, supported by the Slovak Republic, concerning the Commission’s decisional practice and the Postal Directive.
The Commission’s decisional practice and the Postal Directive
194    The applicant submits that the Commission’s decisional practice confirms the distinction between the upstream market for mail preparation and the downstream market for physical delivery. The applicant relies on Commission Decision 2002/344/EC of 23 October 2001 on the lack of exhaustive and independent scrutiny of the scales of charges and technical conditions applied by La Poste to mail preparation firms for access to its reserved services (OJ 2002 L 120, p. 19, ‘the La Poste decision’), as well as the Commission decision of 20 October 2004 on the German postal legislation relating to mail preparation services, in particular to the access of self-provision intermediaries and consolidators to the public postal network and related special tariffs (COMP 38.745 — BdKEP v Deutsche Post AG and Federal Republic of Germany) (‘the BdKEP v Deutsche Post decision’).
195    In addition, the applicant, supported by the Slovak Republic, submits that, in accordance with the Postal Directive and the Poste Italiane decision, the Commission ought to have found that the delivery of postal items generated in the context of hybrid mail formed part of the market for the traditional delivery of postal items.
196    In the first place, it must be found that the applicant’s argument that the definition of the relevant markets in the present case is inconsistent with certain earlier Commission decisions cannot succeed.
197    It must be borne in mind that the Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings, other product and service markets or other geographic markets at different times. Thus, the applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, even where the markets at issue in the two cases are similar, or even identical (see judgment of 14 December 2005 in General Electric v Commission, T‑210/01, ECR, EU:T:2005:456, paragraph 118, and judgment in Clearstream v Commission, paragraph 104 above, EU:T:2009:317, paragraph 55 and the case-law cited).
198    In addition, the present case can be distinguished from the facts of the cases relied upon by the applicant. Although in certain decisions the Commission examined services markets in the postal sector, the analysis carried out in those decisions is not necessarily applicable to other geographical markets, since the competition conditions in the various Member States may be fundamentally different. The applicant has not relied on any case in which the Commission examined the hybrid mail services and traditional mail services markets in Slovakia. The applicant cannot therefore successfully argue that, in the contested decision, the Commission departed from its previous decisional practice.
199    In any event, the Commission decisions on which the applicant relies cannot support its line of argument.
200    It must be borne in mind that, according to Commission Notice on market definition (point 2), ‘[m]arket definition is a tool to identify and define the boundaries of competition between firms’ and that ‘[i]t serves to establish the framework within which competition policy is applied by the Commission’.
201    Accordingly, as regards the Poste Italiane decision, the issue in question was the exclusive right granted to Poste Italiane for the delivery of items generated by telematic technologies, which formed part of the ‘hybrid electronic mail’ service (recital 3 of that decision). The question raised directly concerned the delivery phase, the legislation at issue being intended to confer an exclusive right on Poste Italiane specifically for that phase. In that context, the Commission drew a distinction between the market for non-conventional deliveries, when those deliveries had particular features, namely day- or time-certain deliveries, and the market for conventional deliveries (recital 16). It must therefore be noted that, although the Commission examined, in that decision, only the delivery phase because of the circumstances of the case, it did in any event take the view that the hybrid mail delivery market, with particular mail delivery services, did not form part of the traditional mail delivery market.
202    The La Poste and BdKEP v Deutsche Post decisions did not concern hybrid mail but mail preparation, the latter being defined, in those decisions, as grouping together operations taking place upstream of mail clearance (recital 55 of the La Poste decision and recital 16 of the BdKEP v Deutsche Post decision). In both decisions, certain provisions of the national legislation concerned encouraged La Poste and Deutsche Post to discriminate against mail-preparation companies. The distinction between services upstream and downstream of mail clearance was therefore directly linked to the definition of the mail preparation service and the provisions at issue. Accordingly, those decisions are not relevant to the present case and in no way disprove the Commission’s assessment that hybrid mail services could be considered an integrated service, also including delivery, distinct from the traditional mail services market.
203    In the second place, as regards the Postal Directive, the applicant relies on recital 21 thereof and argues that only ‘new services (services quite distinct from conventional services) and document exchange do not form part of the universal service’ and cannot in principle be reserved to the universal service provider. In the applicant’s view, the crucial question should have been whether the physical delivery of mail items generated in the context of hybrid mail concerned a service which is ‘non-conventional’ and ‘new’ and whether it had to be distinguished from the traditional delivery of postal items. The applicant submits that if the Commission had addressed this question, it would have concluded that the delivery of physical mail items in the context of hybrid mail was a traditional (physical) mail delivery service which has always been reserved to the applicant.
204    The applicant’s argument must be found to be irrelevant. Recital 21 of the Postal Directive refers to the services which cannot be reserved and, as the Commission contends, Article 7(1) of the Postal Directive, which must be referred to concerning the facts of the present case, only provides that individual aspects of postal services, as defined in Article 2(1) of that directive, may be reserved by Member States for the universal service provider. Accordingly, those provisions define the maximum extent of the postal reservation, but do not preclude the Member States from deciding not to reserve certain of the services mentioned in Article 7(1) of the Postal Directive. In addition, it is apparent from neither recital 21 nor Article 7(1) of the Postal Directive that hybrid mail services cannot constitute an integrated service and that they cannot represent a different market from the traditional mail services market.
205    In addition, contrary to the Slovak Republic’s submissions and as the Commission contends, the Commission did not state in recital 123 of the contested decision that the provisions of the Postal Directive implied that clearance and delivery were to be treated as independent postal services. That argument must therefore be rejected, as it is based upon a misinterpretation of the contested decision.
206    It follows from all the foregoing considerations that the applicant, supported by the Slovak Republic, has failed to prove that, in the contested decision, the Commission made a manifest error of assessment when defining the relevant services markets. The complaint alleging that the relevant market has been incorrectly defined must therefore be rejected, subject to the review of the complaints set out in paragraph 174 above, which will be dealt with when the first plea in law is examined (see paragraph 464 below).
b)     The absence of extension of a monopoly into a neighbouring market and the absence of limitation of downstream services to end-users
207    The various arguments raised by the applicant, supported by the Slovak Republic, concerning (i) the absence of extension of a monopoly into a neighbouring market and (ii) the absence of limitation of downstream services to end-users, must be examined in the light of the principles noted in paragraphs 104 to 106 above.
The absence of extension of a monopoly into a neighbouring market
208    The applicant, supported by the Slovak Republic, denies that the physical delivery of postal items in the context of hybrid mail was de jure and de facto liberalised in Slovakia prior to the implementation of the State measure at issue. The delivery of hybrid mail was always covered by the postal reservation.
209    The Commission, supported by Cromwell and Others and by TNT Post Slovensko, disputes the applicant’s argument.
210    In the contested decision, the Commission found that the applicant’s exclusive rights to deliver postal items below 50 grams had been extended (recitals 116 to 148). It took the view that the physical delivery of postal items in the context of hybrid mail had been liberalised de jure by the Postal Law (recitals 120 to 124), which had been confirmed by the General Authorisation (recitals 125 to 130) and by statements and actions of the postal regulator (recitals 131 to 142), but also by statements of other Slovak authorities in relation to the planned amendment of the General Authorisation in 2006 and the planned amendment of the Postal Law (recitals 143 to 147). The Commission also found that several operators had on that basis formed legitimate expectations and invested and engaged in the provision of hybrid mail services, without the postal regulator acting against them for breach of the postal monopoly. The Commission concluded that from that point in time hybrid mail services were also de facto liberalised (recital 138).
211    The Court must examine the applicant’s arguments — which are supported by the Slovak Republic — disputing the Commission’s assessments, in the light of (i) the Postal Law and the General Authorisation, (ii) the application of those texts by the postal regulator and the entry of operators onto the market and (iii) the Slovak Republic’s argument in so far as it relates more specifically to the Commission’s findings regarding the opinions and statements of the Slovak authorities concerning the proposed amendment of the Postal Law and of the General Authorisation.
–       The Commission’s assessment of the State measure at issue in the light of the Postal Law and the General Authorisation
212    The applicant challenges the Commission’s finding that the State measure at issue extended its exclusive rights to deliver postal items up to 50 grams to also include postal items generated in the context of hybrid mail. The Slovak Republic has fully implemented the Postal Directive and, contrary to the Commission’s contentions in the contested decision, neither the Slovak Postal Law nor the General Authorisation have excluded the physical delivery of items produced in the context of hybrid mail from the postal reservation, the physical delivery of mail items having always been reserved to the applicant under Article 7 of the Postal Law.
213    In the first place, the applicant challenges the Commission’s interpretation of the Postal Law. It complains that the Commission failed to take account of the fact that that Law had to be interpreted in line with the Postal Directive. However, an interpretation of the Postal Law, according to which the activity of delivery, even if performed separately from other postal services, is a postal service, is in line with the Postal Directive.
214    In the contested decision, the Commission found that, even though the Postal Law did not mention hybrid mail services, Articles 5(2) and 7(2)(a) of that Law provided that only services covering both clearance and distribution of postal items qualified as postal services and were reserved to the applicant. In addition, Article 23(1) of the Postal Law clarified that only agreements covering both clearance and delivery qualified as postal service agreements (recital 120). The Commission took the view that ‘[a] literal interpretation of the Postal [Law] thus suggest[ed] that hybrid mail services d[id] not qualify as postal services and [we]re not reserved to Slovenská pošta’ (recital 121). The Commission then rejected the argument of the Slovak Government, which had contended, in its reply to the letter of formal notice, that, fully in line with the Postal Directive, the wording of the Postal Law should be understood to mean that postal services were services involving the clearance, sorting, transport and delivery of postal items and that, therefore, a service provider that provides one or more of these services was a postal service provider (recitals 122 and 123). The Commission found that the activities of clearance and delivery, even performed separately, were postal services within the meaning of the Postal Directive, but that that did not mean, however, that the wording of the Postal Law had necessarily to be interpreted in that sense, especially where the wording suggested otherwise (recital 123).
215    It must be pointed out, first of all, that the Postal Law did not mention hybrid mail services as such, unlike the General Authorisation.
216    The Court notes that Article 2 of the Postal Directive defined postal services for the purposes of the Postal Directive, Article 7 of the Postal Directive providing that the Member States could reserve those services.
217    In the Postal Law, Article 2 defined the postal services for the purposes of that Law and stated that they involved ‘the clearance, sorting, transport and delivery of postal items [Article] 4’. As regards the applicant’s argument that, with regard to the definition of ‘postal service’ laid down in the Postal Law, the legislative history of that provision makes clear that the definition had been chosen to reflect Article 2(1) of the Postal Directive, the passage cited has not been produced. However, although it is true that Article 2 of the Postal Law included the same list of services as Article 2 of the Postal Directive, that does not imply that hybrid mail services were reserved pursuant to Article 7 of the Postal Law, which laid down the scope of the postal reservation in Slovakia. For that to have been the case, hybrid mail services would, first of all, have had to have been considered to constitute postal services within the meaning of the Postal Law and then been reserved pursuant to Article 7 thereof.
218    In addition, not all the relevant provisions of the Postal Law reproduced provisions of the Postal Directive. As the Commission and TNT Post Slovensko rightly stated, neither Article 5(2) of the Postal Law, concerning the provision of postal services, nor Article 7(2) of the Postal Law, concerning the postal reservation, was reproduced from the Postal Directive. Indeed, Article 5(2) of the Postal Law did not correspond to the Postal Directive, since a definition of postal service providers was only inserted 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 (OJ 2008 L 52, p. 3) (see Article 2(1)a of the Postal Directive, as amended by Directive 2008/6 (‘the amended Postal Directive’)). Article 7(2) of the Postal Law defined the scope of the postal reservation, without reproducing wording from the Postal Directive.
219    Consequently, those various provisions of the Postal Law must indeed be interpreted in accordance with the provisions of the Postal Directive, but also in their own context, namely the Postal Law.
220    First, according to Article 5(2) of the Postal Law, the provision of postal services occurs if the business activity is the clearance and delivery of communications and items that are postal items under Article 4 of the Postal Law. Under Article 7(2)(a) of the Postal Law, the postal reservation ‘comprises clearance (collection) and distribution of items of correspondence’. It must, therefore, be found that in Articles 2, 5(2) and 7(2) of the Postal Law, reference is always made to both (i) collection and (ii) either delivery or distribution.
221    In addition, it must be noted that, under Article 2 of the Postal Law, the postal services involved the clearance, sorting, transport and delivery of postal items. However, according to Article 7(2) of the Postal Law, the postal reservation comprised ‘clearance (collection)’ and ‘distribution’. If, as the applicant and the Slovak Republic contend, Article 2 of the Postal Law must be interpreted in the light of Article 2 of the Postal Directive, reference must then be made to the definition of ‘distribution’ provided by that directive. However, under Article 2(5) of the Postal Directive, ‘distribution’ corresponds to ‘the process from sorting at the distribution centre to delivery of postal items to their addressees’. In other words, Article 7(2) of the Postal Law must be understood in the sense that it provided that all the postal services referred to in Article 2 of the Postal Law were included in the postal reservation, which tends to support the Commission’s interpretation that the four postal services referred to in Article 2 of the Postal Law had to be considered cumulatively in order to define the postal service within the meaning of the Postal Law. It must also be found that, in the General Authorisation, the definition of the postal service confirms that such a service includes the four services referred to in Article 2 of the Postal Law (Article 1(2) to (4) of the General Authorisation).
222    Lastly, it must be noted, as the Commission observes, that, in recital 140 of the contested decision, it stated that in a resolution of 10 May 2005 the Slovak Government had specified — which neither the applicant nor the Slovak Republic disputes — that ‘only a business activity involving all four stages mentioned above [i.e. clearance, sorting, transport and delivery of postal items] c[ould] be regarded as a postal service’ (resolution No 376).
223    Therefore, contrary to the Slovak Government’s statement, it does not follow from the similarity between Article 2 of the Postal Directive and Article 2 of the Postal Law that the conjunction ‘and’ in Articles 2 and 7(2) of the Postal Law must be interpreted as meaning ‘or’.
224    Secondly, it must be found that, in order to define the provision of postal services, Article 5(2) of the Postal Law refers to the clearance and delivery of postal items, which are defined in Article 4(1) of that Law as ‘communications or items addressed and laid out in the final form in which they are to be delivered’.
225    As the Commission found in the contested decision (recital 120), Article 7(2)(a) of the Postal Law states that the postal reservation ‘comprises clearance (collection) and distribution of … items of correspondence’, which are postal items under Article 4 of the Postal Law, defined more precisely in Article 4(4) of that Law as being communications in written form on any kind of physical medium to be delivered at the address indicated by the sender on the item itself or on its wrapping.
226    It must be found that, in the context of hybrid mail services, there is neither a postal item nor a postal communication, within the meaning of the Postal Law, that is collected and distributed. Consequently, as the Commission found in the contested decision (recitals 120 and 121), the provision of hybrid mail services could not constitute a provision of postal services within the meaning of the Postal Law (Article 5(2) of the Postal Law) and hybrid mail services could not constitute postal services coming within the postal reservation (Article 7(2) of the Postal Law).
227    In addition, contrary to the applicant’s submissions in reply to TNT Post Slovensko’s argument, the wording of Article 23(1) and (2) of the Postal Law, concerning the contract for the provision of postal services, also did not apply to hybrid mail services. That article stated that postal services had to be provided on the basis of an agreement stipulating that ‘the postal company [had to] undertake to deliver the postal item cleared (collected)’ and that ‘[t]he agreement [wa]s deemed to be concluded when the postal item [wa]s cleared (collected)’. There is no collection of a postal item within the meaning of Article 4 of the Postal Law in the context of hybrid mail services. Article 23(1) and (2) of the Postal Law therefore confirmed that those services could not be characterised as a postal service within the meaning of the Postal Law.
228    It follows from the foregoing that the Commission could rightly consider that the Postal Law was at the very least ambiguous as to whether or not hybrid mail services fell within the reserved area (recital 124 of the contested decision), in so far as they did not cumulatively meet the collection and distribution requirements laid down by Article 7(2)(a) of the Postal Law, nor the collection and delivery requirements laid down by Article 5(2) of the Postal Law. The applicant and the Slovak Republic do indeed acknowledge that lack of clarity of the relevant provisions of the Postal Law.
229    In the second place, the applicant challenges the Commission’s interpretation of the General Authorisation. The applicant submits that according to Article 5(1) of the General Authorisation ‘[d]ocument exchange and hybrid mail … [were] not considered the postal service according [to] the [Postal Law]’ as they did not satisfy the terms of Articles 2 and 4 of that Law. In the applicant’s view, since those articles related to the definition of ‘postal items’, Article 5(1) of the General Authorisation simply stated, in essence, that ‘hybrid mail’ was not considered a postal item within the meaning of the Postal Law. In that context, while not specifying what was to be understood by ‘hybrid mail’ as referred to in the relevant provision, it was clear that ‘hybrid mail’ only related to the electronic transmission of the data concerned, not to the physical delivery of the postal items once that data had actually been converted into a physical mail item.
230    In the contested decision, the Commission found that ‘[t]he General Authorisation explicitly excluded hybrid mail from the scope of postal services: “hybrid mail d[id] not satisfy the criteria according [to Articles 2 and 4 of the Postal Law] and they [we]re not considered … the postal service according the [Postal Law]” (Article 1(5) of the General Authorisation)’ (recital 125). In the Commission’s view, given the ambiguous wording of the Postal Law, the General Authorisation, which was explicit, did not contradict the interpretation of the Postal Law according to which hybrid mail services did not fall within the reserved area, but rather confirmed that interpretation (recital 127). The Commission considered that the General Authorisation, depending on the interpretation of the Postal Law, either explicitly and validly confirmed the de iure liberalisation of hybrid mail, or de iure liberalised hybrid mail services (recital 130).
231    First, it must be found that, unlike the Postal Law, the General Authorisation referred explicitly to the hybrid mail service in Article 1(5). As the Commission noted in the contested decision (recital 125), Article 1(5) stated that hybrid mail did not satisfy the criteria according to Articles 2 and 4 of the Postal Law and was not considered a postal service.
232    Contrary to the applicant’s claims, the General Authorisation did not thereby simply state that hybrid mail was not a postal item. Article 4 of the Postal Law includes the definition of postal items and Article 2 of that Law the definition of postal services. Therefore, the reference to Article 2 of the Postal Law was unnecessary if provision was only being made for the fact that hybrid mail did not constitute a postal item. Consequently, in referring also to Article 2, the General Authorisation precluded hybrid mail from being a postal service.
233    In addition, the fact that the General Authorisation stated that the hybrid mail service did not constitute a postal service reinforces the Commission’s interpretation of the Postal Law to that effect in the contested decision (see paragraph 226 above).
234    Secondly, as the Commission contends, contrary to the applicant’s claims, which are supported by the Slovak Republic, nothing confirms that the General Authorisation was referring, by that mention of hybrid mail, only to the electronic transmission of data and not to electronic transmission and the physical delivery of the postal items once that data had been converted into a physical mail item.
235    Although the applicant relies in that regard on the Poste Italiane decision, it must be noted that that decision does not include any definition of hybrid mail. However, it must be pointed out that, in that decision, the Commission stated that the delivery of items of correspondence generated by ‘telematic’ technologies formed part of the ‘hybrid electronic mail’ service.
236    In addition, the applicant refers to the approach adopted by the Commission in the Postal Notice, without further clarification. It therefore suffices to note that the Commission did not define the hybrid mail service in that notice.
237    The Court must also reject the applicant’s statements that a definition of hybrid mail excluding the physical delivery phase of the actual postal item once created is in line with the definition used by the Universal Postal Union and the statements of the UK Postal authority PostComm. The applicant does not explain why those statements are relevant in the present case. In addition, as regards the definition used by the Universal Postal Union, it has already been found that it did not follow from that definition that hybrid mail was limited to the phases prior to the delivery of the hybrid mail item (paragraph 189 above).
238    Furthermore, it must be borne in mind that both the applicant and the Slovak Republic stated, in their replies to the letter of formal notice, that hybrid mail included the delivery phase and was not therefore limited to the phases beforehand (see paragraph 188 above).
239    Lastly, as the Commission contends, the applicant’s argument, whereby the expression ‘hybrid mail’ is limited to the stages before the delivery of the postal items generated, leads to the view that the General Authorisation specified that mail preparation services in the context of hybrid mail were outside the scope of postal services under the Postal Law, even though that is not in doubt, as the applicant and the Slovak Republic agree.
240    Thirdly, as the Commission contends, the interpretation that the General Authorisation referred to hybrid mail, including the delivery phase for the postal items generated, is confirmed by the abortive attempt to amend the General Authorisation in 2006.
241    As the Commission stated in recitals 7 to 12 of the contested decision, in September 2006 the postal regulator had published a proposal for an amendment of Article 1(5) of the General Authorisation under which hybrid mail services were to be deemed a postal service.
242    The postal regulator then withdrew that proposal and referred, in its letter to TNT Post Slovensko informing it of that withdrawal, to the latter’s observations (recitals 10 and 11 of the contested decision). TNT Post Slovensko had argued that, in the context of hybrid mail, there was no collection of a postal item within the meaning of the Postal Law, and had stated that after creating the postal item in physical form, the service provider delivered it to the addressee (recital 10). Neither the applicant nor the Slovak Republic deny that TNT Post Slovensko put forward such a line of argument, mentioned in the contested decision. Although the Slovak Republic contends that there is nothing to indicate that the postal regulator agreed with all of the comments sent by TNT Post Slovensko, the fact remains that, as TNT Post Slovensko contends, the postal regulator ‘inform[ed it that its] comments ha[d] been taken into consideration and Article 1(5) ha[d] been deleted from the amendment to the General Authorisation’.
243    In addition, as the Commission maintains, even if the applicant’s argument that the different stages of hybrid mail services needed to be considered separately were accepted, it must be held that the proposed amendment of the General Authorisation in 2006 only made sense if it was to define the delivery part of hybrid mail services as a postal service. The amendment could not relate solely to the electronic transmission of data, as it is not disputed that this was in any case exempted from the definition of ‘postal item’, and from the definition of ‘postal service’, under the Postal Law, as the applicant and the Slovak Republic agree.
244    However, the applicant does not specify what was covered by the expression ‘hybrid mail’ in the proposal to amend the General Authorisation in 2006. If it referred to all the hybrid mail phases and, in any event, at least necessarily to the delivery phase (see paragraph 243 above), neither the applicant nor the Slovak Republic explain how the same expression could have had two different meanings, one in the original text and another in the proposal to amend, without the postal regulator clarifying that the definition of hybrid mail was no longer the same.
245    Accordingly, the applicant’s argument that the only effect of the proposal to amend was to change the categorisation of hybrid mail services is inherently contradictory. If the definition of hybrid mail were identical in the General Authorisation and the proposal to amend, it was impossible that hybrid mail, as defined by the applicant, that is as including only the phases prior to delivery, could not be a postal service, then become one, since there was, neither in 2004 nor 2006, a collected mail item within the meaning of the Postal Law.
246    It must be added that the Slovak Republic contends that the deletion of the reference to hybrid mail in the amended General Authorisation was simply linked to the fact that, as hybrid mail corresponded only to the services provided before the creation of the postal item, this did not constitute postal services and was not to be included in the General Authorisation. However, this confirms that the reference to hybrid mail in the proposal to amend the General Authorisation in 2006 could not relate to that phase alone and that, therefore, it also concerned the delivery phase. In addition, if the Slovak Republic’s line of argument is followed, the reference could not concern the delivery phase alone, since the Slovak Republic contends that that phase was reserved and that the General Authorisation does not concern the reserved postal services.
247    It must therefore be found that the applicant’s argument, supported by the Slovak Republic, cannot disprove the Commission’s interpretation that the wording of the General Authorisation referred to all the hybrid mail phases, including delivery (see paragraph 234 above) and that, under the General Authorisation, hybrid mail services, including mail delivery, were not considered a postal service.
248    Consequently, as the Commission found in the contested decision (recital 127), in so far as the General Authorisation excluded hybrid mail services as a whole from postal services and, therefore, necessarily from the postal reservation, it confirmed that the Postal Law was to be interpreted as meaning that hybrid mail services, including mail delivery, did not fall within the reserved area (see paragraph 228 above).
249    It follows from this that, as the Commission found in the contested decision (recital 130), the General Authorisation explicitly confirmed the de iure liberalisation of hybrid mail.
250    That conclusion is not called into question by the applicant’s argument concerning the nature of the General Authorisation.
251    The applicant, reproducing the Slovak Republic’s argument, correctly argues that, according to Article 14 of the Postal Law, ‘the General Authorisation is a decision setting general conditions for providing postal services, which are not subject to postal reservation, on the market’. It must be borne in mind that the General Authorisation referred to hybrid mail stating that it did not satisfy the conditions of the Postal Law and therefore confirmed, by that reference, that it was excluded from the reserved services (see paragraph 248 above). Consequently, hybrid mail did not fall within the postal reservation, because of the very provisions of the Postal Law.
252    Accordingly, it must be found that although the applicant rightly argues that the General Authorisation did not de jure liberalise hybrid mail services, it must held that the General Authorisation confirmed that de jure liberalisation by the Postal Law, as the Commission found in recital 130 of the contested decision.
–       The Commission’s assessment of the State measure at issue in the light of the application of the Postal Law and the General Authorisation by the postal regulator
253    The applicant, supported by the Slovak Republic, disputes the Commission’s assessment that the application of the Postal Law and the General Authorisation by the postal regulator confirmed the de jure liberalisation of hybrid mail, including delivery.
254    In the first place, the applicant submits, citing an extract from the letter of the postal regulator of 22 March 2005 to Prvá Doručovacia (‘the letter of 22 March 2005’), referred to in the contested decision, that that letter was in line with a definition of hybrid mail which excluded the physical delivery phase of the postal item. In addition, the applicant, supported by the Slovak Republic, argues that that letter stressed that the postal reservation would have been violated if the postal item had already been generated. In the applicant’s view, the essential point was that the letter did not deal with the question of the final, physical, delivery of generated postal items to the recipient.
255    In the contested decision, the Commission stated that the postal regulator, in particular in the letter of 22 March 2005, had confirmed its interpretation of the Postal Law and the General Authorisation (recitals 131 to 132). The Commission took the view that the postal regulator had referred to the distribution aspects of the hybrid mail services and stated that the delivery of such items was not reserved (recitals 132 to 134).
256    The applicant’s line of argument, supported by the Slovak Republic, must be rejected.
257    First, the fact that the postal regulator had been called upon to decide whether the delivery of hybrid mail fell within the reserved area was already apparent from the introduction to that letter, which read as follows:
‘[Y]ou requested our opinion on the hybrid mail service [per]formed by the distribution company and on its relation to the [reserved services].’
258    In addition, in the contested decision (recital 134), the Commission stated, and neither the applicant nor the Slovak Republic deny, that ‘the objective of [Prvá Doručovacia]’s letter dated 8 March 2005 was precisely to ask for clarification in relation to “the interpretation of the legal status and validity of the postal reservation” concerning its business activity, which it described as follows: “[t]he items are not delivered to the distribution company in completely prepared condition, and the company has to process them before distribution by packaging them, addressing them and pre-sorting them, etc. …”’.
259    It must therefore be found that, contrary to the Slovak Republic’s assertion, the postal regulator was entitled to assume that Prvá Doručovacia intended to distribute itself the printed items to the final addressee, or at the very least, there was nothing to indicate that Prvá Doručovacia was not going to distribute those items. Even if it were proved that Prvá Doručovacia was no longer registered as engaged in the activity of delivering postal items, that does not invalidate that assessment, since Prvá Doručovacia could have intended to question the postal regulator with a view to developing such an activity. Lastly, the Slovak Republic’s argument that it could be assumed that delivery was carried out by the applicant, because that stage was reserved to it under Article 7 of the Postal Law, must be rejected. The purpose of the question submitted to the postal regulator was precisely to obtain information from it concerning the extent of the postal reservation (see paragraph 257 above).
260    Consequently, in that context, contrary to the applicant’s assertion, supported by the Slovak Republic, the letter from Prvá Doručovacia dealt with the question of the final, physical delivery of generated postal items to the recipient and the extract of the letter of 22 March 2005, cited by the applicant, does not suggest that the reference to hybrid mail concerned only the transmission of electronic data.
261    Secondly, the postal regulator did not state that, in all circumstances, the delivery of items in the context of hybrid mail fell within the postal reservation. In the context of the question asked and according to the extract from the letter of 22 March 2005, cited by the applicant, the postal regulator stated that if the postal item was delivered to it in electronic form and transformed by it into written form, this did not satisfy the provisions of Article 4(4) of the Postal Law, on correspondence, nor the related provision of Article 7(2) of the Postal Law, on collecting and distributing correspondence. The postal regulator added that the postal service provided in such a way was not subject to the postal reservation (recital 6 of the contested decision).
262    Consequently, the postal regulator’s assessment confirms the Commission’s assessment that, from transmission to delivery, hybrid mail did not satisfy the conditions of those provisions of the Postal Law, mentioned in paragraph 261 above, because there was no collected postal item within the meaning of the Postal Law before distribution and that, therefore, hybrid mail services did not fall within the reserved area.
263    The second part of the postal regulator’s reply also supports that analysis. The regulator explained that if the physical hybrid postal item had already been transformed by a company at the demand of the sender and the distribution company received it in that form, the conditions of Articles 4(4) and 7(2) of the Postal Law were met. In that regard, it must be found that the applicant alters the meaning of the postal regulator’s reply, by failing to cite that part of the reply which makes clear that the situation concerned is that in which the item in paper form has previously been transformed by another person at the demand of the sender before being delivered to the distribution company (recital 6 of the contested decision). In that case, since the postal item had been generated before the distribution company received it, the postal regulator logically took the view that in that case the distribution company collected, within the meaning of the Postal Law, a physical hybrid mail item and, therefore, that the two conditions of Article 7(2) of the Postal Law relating to collection and distribution of a postal item were met.
264    On the other hand, contrary to what the Slovak Republic states, it is clear from the letter of 22 March 2005, as cited in the contested decision, that if the future postal item were received in electronic form directly from the sender by the distribution company, the services provided in connection with the hybrid mail, including mail delivery, fell outside the reservation within the meaning of Article 7(2) of the Postal Law (recital 6 of the contested decision).
265    It is therefore apparent from the letter of 22 March 2005 that the postal regulator considered that the conditions of Article 7(2) of the Postal Law relating to the collection and distribution of a postal item were indeed cumulative.
266    In the second place, the applicant, supported by the Slovak Republic, submits that neither the postal regulator’s decision of 25 September 2007, rejecting the applicant’s complaint against Direct Marketing a.s. (‘the decision of 25 September 2007’), nor the decision of 22 January 2008 of the President of the Postal Regulatory Office annulling that decision (‘the decision of 22 January 2008’) confirmed that the delivery phase of hybrid mail was not part of the reserved area under Article 7 of the Postal Law, as the Commission claimed. It submits that the decision of 25 September 2007 only confirmed in general terms that the delivery of mail by Direct Marketing’s own means did not fall within the postal reservation if the criteria of Article 23 of the Postal Law were not fulfilled, that is if there was no agreement between the postal company and the sender concerning the provision of postal services, as defined in Article 2 of the Postal Law.
267    In the contested decision (recitals 15 and 16), the Commission stated that the decision of 25 September 2007 had rejected the applicant’s complaint against Direct Marketing, the parent company of Prvá Doručovacia. In the Commission’s view, Direct Marketing received correspondence electronically from UniCredit Bank Slovakia and ABB Bank, printed that content and handed it over to Prvá Doručovacia for distribution. The Commission found that, in the decision of 25 September 2007, the postal regulator had explicitly stated that such an activity, which included the delivery of postal items but not their collection, did not fall within the reserved area and was therefore not covered by the applicant’s exclusive right (recital 136).
268    It must be noted that, in the decision of 25 September 2007, the postal regulator stated, first of all, that, under the Postal Law, there was no unambiguous obligation to deliver postal items only through a universal service provider.
269    In addition, it must be noted that the applicant acknowledges that the decision of 25 September 2007 explicitly stated that an activity including the delivery of postal items but not their collection did not fall within the reserved area and was therefore not covered by the applicant’s exclusive rights, as stated in recital 136 of the contested decision.
270    It must also be noted that, in that decision, the postal regulator added that ‘[a]ccording to [Article 5 of the Postal Law], a postal service [was] provided only if an undertaking performs collection and distribution of mail (material object within the meaning of [Article 4 of the Postal Law])’ (recital 16 of the contested decision).
271    Consequently, contrary to the applicant’s assertions, the postal regulator did not, in the decision of 25 September 2007, simply confirm in general terms that the delivery of mail by Direct Marketing’s own means did not fall within the postal reservation if the criteria of Article 23 of the Postal Law were not fulfilled. It clearly stated that, as the Commission found in the contested decision, the conditions of Article 5(2) of the Postal Law, namely the collection and delivery of a physical postal item, were cumulative conditions in the definition of the provision of a postal service. That implies that the collection and delivery conditions laid down in Article 7(2) of the Postal Law are also cumulative, since a service can be reserved only if it is a postal service, which confirms the Commission’s assessment in that regard in the contested decision (recital 129) (see also paragraph 226 above).
272    It is indeed true that, as the applicant, supported by the Slovak Republic, argues, and as the Commission found in the contested decision (recitals 21 and 137), the decision of 25 September 2007 was annulled by the decision of 22 January 2008. As the applicant states, the decision of 25 September 2007 was annulled because the postal regulator had not made it sufficiently clear that Direct Marketing, PARCO, s.r.o. and UniCredit Bank Slovakia had not carried out activity which met the criteria of Article 2 of the Postal Law and no contract had been concluded within the meaning of Article 23 of that Law and that, therefore, no collection or distribution of postal items covered by the postal reservation pursuant to Article 7(2) of the Postal Law had occurred.
273    In that regard, it must be noted that the applicant does not argue that the decision of 22 January 2008 affected the postal regulator’s statement, set out in the decision of 25 September 2007, that ‘according to [Article] 5 of the [Postal Law], a postal service is provided only if an undertaking performs collection and distribution of mail (material object within the meaning of [Article 4 of that Law)’ (recital 16 of the contested decision). The decision of 22 January 2008 indeed referred to the two conditions of Article 7(2) of the Postal Law. Consequently, since the decision of 22 January 2008 did not affect the cumulative nature of the conditions laid down in Article 5(2) of the Postal Law and, therefore, in Article 7(2) of that Law (see paragraph 271 above), contrary to the Slovak Republic’s contentions, the annulment of the decision of 25 September 2007 is not sufficient to render it entirely irrelevant.
274    In any event, the decision of 22 January 2008 must be set in context. Between the initial decision, on 25 September 2007, and the annulment decision, on 22 January 2008, members of the Slovak Parliament introduced a legislative proposal, on 8 November 2007, aimed at reserving the delivery of hybrid mail to the applicant (recital 18 of the contested decision), which led to the amendment of the Postal Law and to the State measure at issue (see paragraph 10 above). Accordingly, the Commission did not err, in recital 137 of the contested decision, when it found that ‘the repeal [had only been] adopted once it [had become] clear that there was political will to amend the Postal [Law] in order to qualify hybrid mail as a postal service and to include into the reserved area’.
275    In addition, the postal regulator had, on 30 November 2007, published a statement entitled ‘viewpoint on hybrid mail’, which is mentioned in recital 20 of the contested decision. In that statement, the regulator stated that, ‘the phase of the hybrid mail from creation of the postal item up to its delivery [was] a postal service [and that the postal regulator would] assess the activity of providers of services related to the hybrid mail in the meaning of this standpoint as of its publication on 30 November 2007’. As the Commission stated (recital 137 of the contested decision), and contrary to the applicant’s assertion, it follows that the postal regulator considered that there had been a change in the interpretation of the legislation concerned.
276    Consequently, contrary to the applicant’s assertion, in such a context, it was not apparent that that opinion of November 2007 and the decision of 28 January 2008 simply made clear that the physical delivery of hybrid mail was covered by the postal reservation.
277    In the third place, in the reply, the applicant disputes the relevance of the postal regulator’s control record of 10 March 2006 (‘the control record of 10 March 2006’).
278    The applicant’s argument is ineffective since the Commission did not rely on that control record in order to conclude that the applicant’s exclusive rights — which had been granted to it for the distribution of mail under 50 grams — had been extended to the activity of delivering hybrid mail. The argument is, in any event, unfounded.
279    First, the applicant, supported by the Slovak Republic, states that it is important to note that control records of the postal regulator do not have the nature of a binding administrative decision and are neither published nor open to appeal. The control record is a publicly authenticated record attesting to the facts found, and conclusions arrived at by the authority performing the inspection or control. An administrative decision is only issued and published by the postal regulator in cases where a fine or other corrective measure must be imposed. Therefore, it states, the control record of 10 March 2006, issued to Prvá Doručovacia, cannot be regarded as providing a binding interpretation of the provisions the Postal Law, as suggested by the Commission and TNT Post Slovensko.
280    It must be found that there is a difference of views between, on the one hand, the applicant, supported by the Slovak Republic and, on the other, TNT Post Slovensko as to the legal status of the control record of 10 March 2006 and whether it is an administrative measure subject to review. In any event, the applicant, supported by the Slovak Republic, and the Commission agree that the control record procedure is governed by Law No 10/1996 on Control in the Civil Service and that a control record is issued on the basis of Article 13 of that Law.
281    The applicant states in essence that a control record replaces a decision imposing a fine, when no infringement of the Postal Law has been found. Consequently, as the Commission and TNT Post Slovensko note, it is clear that a control record is an official document, drawn up by the public authority charged with applying the Postal Law and the General Authorisation, which on that basis provides a binding interpretation of the Postal Law. Therefore, as the Commission contends, it must be found that control records issued by the postal regulator are indeed relevant for assessing the question of the liberalisation of hybrid mail services.
282    Secondly, the applicant submits that, contrary to the Commission’s assertions, the control record of 10 March 2006 did not state that the provision of hybrid mail services, including the delivery stage, did not fall within the reserved area. It only confirmed that the postal regulator had not found any evidence of an infringement of the Postal Law by Prvá Doručovacia.
283    It must be borne in mind, first of all, that the Commission did not mention the control record in the contested decision. Since Prvá Doručovacia communicated it to the Commission, in its reply to the latter’s request for information of 7 August 2008, the applicant had access to that reply in the letter of facts and included a copy of the reply in annex to the application.
284    It must be found, next, as the Commission has observed, that, in the control record of 10 March 2006, the postal regulator summarised its findings following an inspection of Prvá Doručovacia’s activities on 23 February and 8 March 2006. The inspection concerned services provided by Prvá Doručovacia in December 2005 for Credit Suisse Life Pensions, d.s.s., which comprised the electronic transmission of content to Prvá Doručovacia, which would print and subsequently distribute it to the addressees in part through its own network and in part through the applicant’s. The control record of 10 March 2006 stated that the services provided had the character of a hybrid mail service and as such were not a postal service within the meaning of Article 2 of the Postal Law and Article 1(5) of the General Authorisation. It also stated that Prvá Doručovacia did not provide services based on the clearance, transport and delivery of items considered postal items pursuant to Article 4 of the Postal Law or items the character of which infringed the conditions of the postal reservation pursuant to Article 7 of the Postal Law. It was concluded from this in the record that Prvá Doručovacia had not carried out business activities in a way which fulfilled the conditions of Article 7 of the Postal Law and that the control had not led to a finding that the Postal Law had been infringed.
285    Therefore, contrary to the applicant’s claims, it must be found that, in the control record of 10 March 2006, the postal regulator stated that the provision of hybrid mail services, including the delivery stage, did not fall within the reserved area. It thereby confirmed its interpretation of the Postal Law contained in the letter of 25 March 2005 (see paragraph 264 above), which it again confirmed in the letter of 25 September 2007 (see paragraph 271 above).
286    Thirdly, the applicant submits that where a complaint was filed concerning hybrid mail services and the possible infringement of the postal reservation, the postal authority conducted investigations into those complaints. Those investigations related to companies providing hybrid mail services, such as Prvá Doručovacia. The applicant submits that those investigations would not have been conducted if — as Cromwell and Others suggest — there had been a consistent interpretation of the Postal Law and the General Authorisation, confirming that hybrid mail services, including mail delivery, were not covered by the reserved area. There can be no doubt, it states, that the postal regulator was of the opinion that hybrid mail services, which included the physical delivery of mail items, infringed Article 7 of the Postal Law.
287    In that regard, it must be noted that according to the applicant’s argument, supported by the Slovak Republic, an infringement of the legislation is found only in a decision of the postal regulator, since Article 13(7) of Law No 10/1996 to which the Slovak Republic refers states that ‘[w]here the control has not revealed any breach of legal provisions or internal rules, a control record shall be drawn up’. It must be found, because of the existence of the control record of 10 March 2006, that the postal regulator necessarily took the view that Prvá Doručovacia had not infringed the postal legislation, since a report had been issued, rather than a decision adopted.
288    Moreover, the Commission and Cromwell and Others contend that, following the letter of 25 March 2005, Prvá Doručovacia began to offer a hybrid mail service, including delivery through its own network. Although, as the Commission observes, the activities of Prvá Doručovacia led to several complaints by the applicant, which in turn led to a number of inspections of Prvá Doručovacia’s activities by the regulator, it must be found that the postal regulator explicitly confirmed on several occasions that all aspects of hybrid mail services, including the delivery phase, were outside the postal reservation.
289    Such an assessment of the postal regulator is apparent not only from the control record of 10 March 2006, but also from an earlier control record of 6 October 2005, concerning the activities of Prvá Doručovacia, in which the postal regulator had taken the view that ‘[t]he provided services ha[d] the character of a hybrid mail and [that] as such, they [we]re not a postal service under [Article] 2 of [the Postal Law] as well as under Article 1 clause 5 of the General Authorisation’. That assessment is also apparent from a later control record of 23 March 2007, concerning the activities of Prvá Doručovacia, in which it was concluded that ‘distribution of postal items as a part of another service [was] not a postal service under [Article] 2 of the [Postal Law]’.
290    It follows from all the foregoing considerations that the Commission did not err in taking the view, in recital 131 of the contested decision, that a number of the postal regulator’s statements had confirmed that the hybrid mail services, including the delivery phase, had been liberalised before the amendment of the Postal Law.
–       The Commission’s assessment of the State measure at issue in the light of the opinions and statements of the Slovak authorities concerning the proposed amendment of the Postal Law and of the General Authorisation
291    The Slovak Republic refers to various statements by the Slovak authorities. In the first place, it states that the opinion of the Anti-Monopoly Office, mentioned in recitals 9 and 44 of the contested decision, was issued in connection with the proposed amendment of the General Authorisation in 2006 (see paragraph 241 above). The Slovak Republic recalls that, in the case of services provided in phases, where the postal item does not yet exist, such an amendment would really have been contrary to the Postal Law. In its opinion, the Anti-Monopoly Office merely expressed its view that hybrid mail as a whole cannot be defined as a postal service, but it did not express its view concerning specifically the delivery phase of the postal item in connection with hybrid mail.
292    In the contested decision, the Commission stated that the Anti-monopoly Office had taken the view that the planned amendment of the General Authorisation in 2006 infringed the Postal Law as well as EU law, explaining that, in characterising hybrid mail as a postal service, the amended General Authorisation thereby enlarged the application of the Postal Law, in particular Articles 2 and 4 thereof (recitals 9 and 144).
293    The Court points out that the applicant does not challenge that statement. In addition, it must be noted that the Slovak Republic states that, according to the Anti-monopoly Office, the reference to hybrid mail in the planned amendment of the General Authorisation in 2006 concerned hybrid mail as a whole. This confirms that there was no reason to rule out that the reference to hybrid mail in the General Authorisation also concerned hybrid mail as a whole (see paragraph 247 above).
294    In the second place, the Slovak Republic submits that the opinions of the Department of Approximation of Law and of the Legislative Council of the Government of the Slovak Republic (‘the Legislative Council’) presented only one end of the spectrum of opinions in the discussion in connection with the legislative process. The opposite opinion, that the adoption of the amendment of the Postal Law did not lead to a breach of the provisions of EU law, was pleaded for by the authorities which directly dealt with the regulation of the market in postal services. The Commission accorded greater importance to the opinions of certain authorities of the Slovak Republic which spoke out during the legislative process, before the adoption of the amendment of the Postal Law, than it did to the opinions of other authorities. In addition, the opinion of the Legislative Council clearly showed the Slovak Republic’s intention to formulate Article 2 of the Postal Law in accordance with the relevant provisions of the Postal Directive. The Commission overlooked that part of the opinion concerned when, in recital 123 of the contested decision, it stated that the definition of postal service laid down in the Postal Law was not necessarily to be interpreted in the sense of the Postal Directive, as a result of which the Commission interpreted the definition differently from the provisions of the Postal Directive, thereby substituting its own interpretation for the will of the Slovak legislature.
295    In the contested decision, the Commission found that public bodies, such as the Department of Approximation of Law, in its opinion dated 3 January 2008 (recitals 23 and 145), and the Legislative Council in its opinion dated 30 January 2008 (recitals 24 and 146), had taken the view that, because of the change introduced by the proposed amendment of the Postal Law, ‘the scope of the postal reservation and provision of postal services would be extended’.
296    It must be noted that although the Slovak Republic challenges those considerations, the applicant does not call them in question.
297    It must be found, first of all, that as the Commission states, the Slovak Republic’s argument that the Commission erred in attaching more weight to the opinions of certain administrative bodies than to those others which allegedly favoured the amendment is not substantiated. The Slovak Republic neither reveals the identity of such proponents, nor puts forward any reasons or arguments on which those other departments based their alleged assent to the amendment.
298    Next, it must be noted that it was clearly stated in the opinion of the Legislative Council that the amendment of the Postal Law would give rise to a contradiction between, on the one hand, Article 2 and, on the other, Articles 5 and 7 of that Law and that the extension of the postal reservation would infringe the provisions of the Postal Directive. In addition, even if Article 2 of the Postal Law is interpreted consistently with the Postal Directive, the fact remains that it must be taken into consideration with the other Articles of the Postal Law, in particular Articles 5 and 7 thereof (see paragraphs 216 to 219 above).
299    However, in its opinion of 3 January 2008, the Department of Approximation of Law had expressly confirmed that the collection and delivery conditions for reserved postal services, under Article 7 of the Postal Law, were cumulative.
300    It follows from all the foregoing considerations that, contrary to the Slovak Republic’s claims, the Commission was fully entitled to take the view, in the contested decision (recital 143 of that decision), that the interpretation of the Slovak legislation according to which the hybrid mail services had been liberalised had been consistent.
–       The Commission’s assessment of the State measure at issue in the light of the entry of operators onto the market
301    The applicant, supported by the Slovak Republic, disputes the Commission’s assessment that the entry of operators onto the market confirmed the de facto liberalisation, including that of mail delivery. The Commission’s statement that the Postal Law and the interpretation given by the postal regulator of the General Authorisation led several companies to enter the hybrid mail market is not supported by evidence.
302    The applicant submits that Cromwell, Slovak Mail Services and Prvá Doručovacia started operating in Slovakia around 2005 and offered services which did not fall under the reserved area. Cromwell was only active in the preparation of hybrid mail items, whereas Slovak Mail Services and Prvá Doručovacia were active in the printing and delivery of items not falling under the postal reservation, such as advertising material and direct marketing (over 50 grams). Cromwell and Others only started offering hybrid mail services (including delivery services) in the summer of 2007 when they ‘joined forces’ and combined their services. By not properly assessing the services which the alternative operators claimed to offer, that is hybrid mail services, the Commission wrongly concluded that the amendment of the Postal Law extended the scope of the reserved area and thereby limited output to end-users.
303    In addition, the applicant submits that even if there were, at that time, any ambiguity as to whether hybrid mail delivery fell within the postal reservation, it was clearly removed by the postal regulator’s statement of 30 November 2007 (see paragraph 275 above).
304    In the contested decision, the Commission found that several operators, relying on the statements of the postal regulator, had formed legitimate expectations and engaged in the provision of hybrid mail and invested in hybrid mail equipment and in the further development of their networks, without the postal regulator acting against them for breach of the postal monopoly. The Commission found that from that point in time hybrid mail services were also de facto liberalised (recitals 49 to 55 and 138).
305    First, the Court must reject the argument as to an ambiguity in the postal legislation, which was allegedly removed by the postal regulator’s statement of 30 November 2007, since it has already been concluded that the Commission had not erred in finding that, pursuant to that legislation, hybrid mail services, including delivery, had been liberalised de jure before the amendment of the Postal Law and the amendment of the General Authorisation in 2008 (see paragraph 252 above).
306    Secondly, as the Commission stated in the contested decision (recital 52), it must be noted that Prvá Doručovacia commenced its activities in 2005 in the hybrid mail sector, delivering that mail in part using its own network.
307    It must be borne in mind that in March 2005 Prvá Doručovacia had asked the postal regulator for clarification of the status of hybrid mail delivery in relation to the reserved area, as the Commission stated in recital 5 of the contested decision (see paragraphs 257 to 260 above). The postal regulator had then assured Prvá Doručovacia that the activities described complied with the Postal Law and, more precisely, that they did not fall within the reserved services (see paragraph 264 above).
308    In addition, it must be recalled that the postal regulator took the view, both in the control record of 6 October 2005 and that of 10 March 2006, that Prvá Doručovacia provided hybrid mail services or comparable services and ‘[that] as such, they [we]re not a postal service under [Article] 2 of [the Postal Law] as well as under Article 1 clause 5 of the General Authorisation’ (see paragraphs 284 and 289 above).
309    Therefore, contrary to the applicant’s claims, the Commission did not commit a manifest error of assessment in stating in the contested decision that the ‘integrated hybrid mail service’ was already available on the Slovak market in 2005 (recital 52 of the contested decision).
310    The Commission’s finding cannot be called in question by the applicant’s arguments concerning the services offered by TNT Post Slovensko, since recital 52 of the contested decision related to Prvá Doručovacia, not TNT Post Slovensko. As regards the latter, the Commission stated that TNT Post Slovensko had started to provide hybrid mail services in Slovakia more recently (recital 55 of the contested decision). In addition, although the applicant observes that TNT Post Slovensko’s bid to Cetelem Slovensko a.s. offered a ‘(new) integrated service’ during a test phase starting in September 2009, which included the delivery of postal items, it must be understood, as TNT Post Slovensko confirmed at the hearing in answer to a question from the Court, that the service offered was new from the client’s point of view, the latter envisaging the establishment of a new service within the company. This accounted for the proposal of a test phase, and does not imply that the service was not already offered by TNT Post Slovensko. It must also be borne in mind that TNT Post Slovensko had submitted a bid in response to the Slovak Telekom call for tenders, offering hybrid mail services, as the Commission noted in the contested decision (recital 55), and as TNT Post Slovensko argues (see paragraph 166 above).
311    Thirdly, the hybrid mail activities of Cromwell and Slovak Mail Services, including delivery through their own distribution network, began — as they themselves and the applicant note — in June 2007, Slovak Mail Services having been founded in April 2007 as the Commission stated in the contested decision (recitals 50 and 51).
312    In addition, as Cromwell and Others note, Cromwell and Slovak Mail Services won the Slovak Telekom call for tenders, which concerned the processing and delivering of invoices (see paragraph 134 above), the negotiations subsequently being suspended on account of the legislative changes (recital 17 of the contested decision).
313    In that regard, the applicant submits, however, that, if, as the Commission and TNT Post Slovensko suggest, the Slovak Telekom call for tenders was considered to be the major step in the development of hybrid mail services, as defined by the Commission, the latter could not claim that the hybrid mail market, including delivery of hybrid mail items, was de facto liberalised prior to the amendment of the Postal Law. That argument must be rejected, since it must be understood that the Commission and TNT Post Slovensko sought to underline the importance of the call for tenders in terms of value, which demonstrates the development of the hybrid mail services; that does not mean that the activity did not exist prior to the launch of the call for tenders.
314    The Court must also reject the applicant’s argument by which it states, in response to TNT Post Slovensko’s line of argument, that, as it explained in its reply to the letter of formal notice, the services which the alternative operators offered on the market prior to the amendment of the Postal Law did not concern hybrid mail services as defined by the Commission (recitals 89 and 98 of the contested decision), but involved a combination of bulk mail preparation services combined with traditional mail delivery (the latter part being reserved to the applicant). It suffices to note that it has been noted that hybrid mail services such as those defined in the contested decision were offered by various operators in Slovakia (see paragraphs 187, 309 and 311 above).
315    Consequently, the Commission did not err in recital 148 of the contested decision in finding that the entry of companies onto the market had confirmed the de facto liberalisation of hybrid mail services, including the delivery of mail.
316    In the light of all the foregoing, it must be held that, contrary to the applicant’s claims, the Commission did not err in the contested decision in finding that the hybrid mail services, in particular mail delivery, did not fall within the postal reservation under Article 7(2) of the Postal Law and had been liberalised in Slovakia de iure and de facto before the amendment of that Law (recital 148 of the contested decision).
317    The alternative operators were entitled to rely on this interpretation of the Postal Law as confirmed by the General Authorisation, as this was, as the Commission contends, the only official document of general scope to mention hybrid mail services. The applicant acknowledges moreover that there was a degree of uncertainty regarding the scope of the postal reservation, in particular in the period surrounding the UniBanka-HVB Bank Slovakia and Slovak Telekom call for tenders in January and November 2007 respectively.
318    Consequently, the Commission did not err in finding that the amendment of the Postal Law had extended the exclusive rights of the applicant, which it had been granted for the distribution of mail under 50 grams, to hybrid mail delivery (recital 148 of the contested decision). Contrary to the applicant’s claim, and as the Commission contends, the amendment of the legislation at issue cannot be regarded as mere clarification.
319    That conclusion is not called in question by the applicant’s argument that since the contested decision is based upon an incorrect definition of the relevant market, namely that is it took into consideration a separate market for hybrid mail services, the Commission wrongly concluded, both as regards the legal and the factual aspects, that the alleged extension of the applicant’s exclusive rights to the neighbouring market infringes Articles 82 EC and 86 EC (recitals 116 to 147 of the contested decision).
320    It is sufficient to note that the difference between the two types of mail — traditional and hybrid — and the market reality in Slovakia led the Commission to the definition of the relevant markets in the present case. The applicant has not proved that the Commission committed a manifest error of assessment in that regard (see paragraph 206 above). On the contrary, the legislative context in Slovakia, before the adoption of the measure at issue confirms that definition, since it is apparent from all the foregoing considerations that the legislation treated traditional mail delivery and hybrid mail delivery differently.
321    In the light of the foregoing, the complaint alleging that there was no extension of a monopoly to a neighbouring market must be rejected.
The absence of a limitation of downstream services to end-users
322    The applicant submits that the Commission has failed to establish that the criterion set out in the judgment of 23 April 1991 in Höfner and Elser (C‑41/90, ECR, EU:C:1991:161, paragraph 31) was fulfilled as regards the State measure at issue.
323    The Commission, supported by Cromwell and Others and TNT Post Slovensko, challenges that argument.
324    In the contested decision, the Commission found that, by reserving the hybrid mail services to the applicant, the Slovak Republic had limited the services available to all users (recitals 149 to 155). It took the view that ‘[t]o the extent that only private operators [we]re able to offer additional services such as tracking services and seven day a week delivery together with their offer of hybrid mail services, the reservation of hybrid mail delivery [deprived] customers of these services’. It also took the view that ‘[t]hese extra services, in particular track-and-trace services, appear[ed] to be one of the main criteria used by customers to select postal service providers’ (recital 150). In the Commission’s view, the applicant ‘[was] not offering such additional services for items of hybrid mail correspondence’ (recitals 151 to 154).
325    It is apparent from the judgment in Höfner and Elser, paragraph 322 above (EU:C:1991:161, paragraphs 19 to 31), that a Member State is in breach of the prohibitions contained Articles 82 EC and 86(1) EC if the undertaking in question, merely by exercising the exclusive right granted to it, cannot avoid abusing its dominant position, and such an abuse may in particular consist in limiting the provision of a service, to the prejudice of those seeking to avail themselves of it. The Court of Justice has held that a Member State creates a situation in which the provision of a service is limited when the undertaking to which it grants an exclusive right extending to certain activities is manifestly not in a position to satisfy the demand prevailing on the market for activities of that kind and when the effective pursuit of such activities by private companies is rendered impossible by the maintenance in force of a statutory provision under which such activities are prohibited.
326    In the present case, the applicant does not deny that, at the very least since the State measure at issue, the delivery of hybrid mail has been reserved to it and that alternative operators cannot carry out that activity. On the other hand, it denies that that delivery includes certain services, such as track-and-trace and seven-days-a-week delivery for which there is also a demand which it cannot manifestly satisfy.
327    In the first place, the applicant submits that the Commission failed to establish that the delivery of items by alternative operators with track and trace or seven-days-a-week delivery could be regarded as ‘non-conventional’ services within the meaning of the Postal Directive or established decisional practice.
328    First, the applicant states that the Commission failed to explain to what extent the ‘track and trace’ services offered in Slovakia served a specific demand. The contested decision merely stated that ‘additional services such as track-and-trace [we]re of particular importance as they [allowed customers such as banks, insurance and telecommunications companies] to avoid bad credit and to have precise information on whether a particular postal item ha[d] been distributed to the end user’ (recital 150 of the contested decision). The contested decision did not substantiate in what manner track and trace contributes to avoiding bad debt. The applicant disputes, in addition, both Slovak Telekom’s interest for those track-and-trace services and whether such an interest was representative.
329    It must be noted that the Commission defined, in recital 38 of the contested decision, the track-and-trace service as a service consisting in the transmission of an electronic report for each postal item, reporting whether it has been delivered and, if so, when.
330    In addition, in recitals 36, 96, 97 and 150 of the contested decision, the Commission found that hybrid mail services constituted a postal service fulfilling the specific needs of clients which are large companies such as banks, insurance companies or telecommunications companies, since those companies had regular invoices to send to end-users. The Commission explained that, for such customers of postal service operators, additional services such as track-and-trace were of particular importance. They allow them to follow invoices sent out, to have precise information on whether a particular postal item has been distributed to the end-user and the time thereof, thereby also enabling them to limit unpaid invoices and avoid bad debts, by linking the process of distribution to their own internal data treatment systems.
331    Furthermore, the Commission stated that Slovak Telekom had confirmed that that track-and-trace service was a selection criteria in its call for tenders and was of key importance for customer relations purposes, allowing it to reduce the cost of collecting payments and to avoid bad debts (recital 39 of the contested decision and footnote No 9). It must be pointed out that that confirmation was apparent, in essence, from Slovak Telekom’s reply to the Commission’s request for information. Slovak Telekom had stated that, contrary to the applicant’s claims, that service was the most important of the four additional services offered by Slovak Mail Services and Cromwell. It must also be noted that, in order to evaluate the service proposed, Slovak Telekom had requested the setting up of a pilot operation for a period of between three and six months, which tends to show that it regarded the quality of the delivery services and quality control as important, not only price as the applicant implies.
332    Lastly, as regards whether the interest expressed by Slovak Telekom was representative, it must be noted that the latter’s call for tenders was considered to be one of the most important contracts in value terms with a yearly turnover of ‘SKK [100 — 150] million’, that is ‘[EUR] 3 million to 4.6 million’ (recital 17 of the contested decision), which the applicant does not deny. It could therefore be considered to illustrate a demand prevailing on the market, in accordance with the judgment in Höfner and Elser, paragraph 322 above (EU:C:1991:161).
333    Consequently, contrary to the applicant’s assertion, the Commission did take into account, in the contested decision, the existence on the market of a specific demand for the track-and-trace service.
334    Secondly, with regard to the seven-days-a-week delivery, the applicant submits that the Commission merely stated, in the contested decision, that that service was available in Slovakia, without demonstrating whether there was a specific demand for such a service. Thus, the call for tenders organised by Slovak Telekom did not include a selection criterion regarding seven-days-a-week delivery.
335    While it is true that the contested decision refers to that service (recital 38 of the contested decision), without mentioning specific evidence in order to show that seven-days-a-week delivery was a service satisfying a specific demand at the delivery level, it must be noted that, in its reply to the Commission’s request for information, Slovak Telekom referred to seven-days-a-week delivery as an additional service, placing it third on the list of the four services offered by Slovak Mail Services and Cromwell (see paragraph 182 above). In any event, the seven-days-a-week delivery service is a secondary, non-essential aspect in the Commission’s analysis of the services additional to delivery in the context of hybrid mail, and the fact that it is only referred to in in the contested decision, without being supported by other specific evidence, cannot call in question the lawfulness of that decision as regards the existence of a market demand for additional services linked to delivery.
336    It follows from the foregoing that the Commission did not err in finding, in the contested decision, that there was a market demand for additional services linked to delivery, such as, at the very least, the track-and-trace service.
337    In the second place, the applicant submits that the Commission has failed to establish that the applicant would manifestly not be in a position to satisfy the demand prevailing on the market.
338    In the contested decision, the Commission found that the applicant was not offering track-and-trace services for hybrid mail (recitals 38 and 151). The Commission stated that the Slovak Government acknowledged that the applicant did not offer track-and-trace services or seven-days-a-week delivery in response to the Slovak Telekom call for tenders, but it nevertheless added that ‘the fact that [the applicant could] not offer the track-and-trace service or the seven-days-a-week service to Slovak Telekom d[id] not mean that [the applicant could not] provide these services’, which the applicant had also argued (recital 152). The Commission took the view that the services offered by the applicant were specialised services the costs of which made them totally inappropriate to hybrid mail items. It stated that the applicant did not actually claim that it provided such specialised services in relation to hybrid mail items, nor even that there would be demand for such specialised services in relation to hybrid mail (recital 153). Lastly, the Commission stated that the applicant did not claim that, at the time of the contested decision, it offered, nor a fortiori provided, ‘additional services such as track and trace in relation to hybrid mail items (delivery reports)’, or that it would be able to do so in the future (recital 154).
339    First, the applicant submits that it has explained in detail to the Commission that it was capable of providing the additional services which the alternative operators offered in the context of hybrid mail. The Commission, however, failed to examine carefully and impartially all relevant facts in that regard and rejected the applicant’s arguments without giving sufficient or proper reasoning. Thus, the Commission did not establish that the applicant would ‘manifestly not be in a position to satisfy demand prevailing on the market’. In that regard, since the applicant raises the same complaint in the context of the first plea in law, it will be answered when that plea in law is examined (see paragraphs 445 to 455 and 464 below).
340    Secondly, the applicant disputes the Commission’s assessment that it was not capable of providing the ‘additional services [such] as track and trace to hybrid mail items (delivery reports)’. The applicant submits that it confirmed, contrary to the Commission’s statement in the contested decision (recital 154), that it carried out item delivery control and was able to deliver items seven days a week. It refers to its reply to the letter of formal notice and its reply of 22 August 2008 to the Commission’s request.
341    First of all, it must be found that, in its reply to the letter of formal notice, the applicant did in fact state that it could provide the track-and-trace service described by the Commission, but did not provide any explanation in that regard.
342    Next, it must be pointed out that, following the Slovak Telekom call for tenders, that company did not wish to award the contract to the applicant (recital 17 of the contested decision). [confidential], contrary to what the applicant states in the reply, [confidential]. It must be recalled that it is not disputed that the Slovak Telekom call for tenders was considered to be one of the most important contracts in value terms. [confidential].
343    In addition, according to the applicant’s explanations, the service which it offered consisted in confirmation reports (called ‘Advice of delivery’), which were provided for registered and insured mail items. Furthermore, the applicant does not deny that it provides physical reports, whereas the service described by the Commission consisted in the transmission of an electronic report (recital 38 of the contested decision). However, as the Commission contends, this amounted to a significant difference since only an electronic delivery report could be fed back into the customer’s data systems.
344    Furthermore, contrary to the applicant’s assertions, the track-and-trace service described by Slovak Telekom in its reply to the Commission’s request for information was not a delivery report ‘after delivering [was] finished’, but a control of delivery or non-delivery with the reason for non-delivery being stated. In the same reply, Slovak Telekom stated that other operators, such as Slovak Mail Services and Cromwell, were capable of providing the additional track-and-trace service. Contrary to the applicant’s claims, Cromwell and Others do not accept that that service was ‘only a delivery report’ and they do not describe it as such. They describe an electronic delivery system, with a status of delivery or non-delivery and the communication of various statistics, that description differing from the description given as regards the reports provided by the applicant (recital 38 of the contested decision), which the applicant has not challenged.
345    In addition, as TNT Post Slovensko contends, the applicant does not state that it offered customised delivery failure reports, which also differentiated the services offered by the applicant from those described in the contested decision (recital 38) and in Slovak Telekom’s reply to the Commission’s request for information.
346    Furthermore, in its reply to the letter of formal notice, the applicant did not confirm that it provided that service for hybrid mail items. In the application, it concedes moreover that the track-and-trace service was not offered in the context of hybrid mail, in so far as the applicant does not refer to any service other than those cited with regard to it in the contested decision and, in relation to those services, uses the expression ‘if they would be offered in the context of hybrid mail’. Moreover, contrary to the applicant’s statement, as the Commission notes (recital 153 of the contested decision), the applicant did not even claim that in relation to hybrid mail there would be a demand for the services it offered. This confirms that those services did not correspond to the services requested by the customers of hybrid mail services.
347    Lastly, the Court must reject the applicant’s argument by which it challenges the Commission’s statement that the track-and-trace services offered by it were inappropriate for hybrid mail items due to their cost structure (recital 153 of the contested decision). First of all, it must be found that the applicant does not call in question the accuracy of the information relating to the prices published, mentioned by the Commission in the contested decision (recital 153 and footnote No 36), but simply states that it was able to offer competitive prices for bulk mail services in the context of hybrid mail. Next, as the Commission contends, even though the applicant claims that its published tariffs were not representative and that large customers got discounts [confidential]. In addition, in its reply of 28 August 2008 to the Commission’s request for information of 14 August 2008, the applicant [confidential].
348    It must therefore be held that the applicant has not adduced evidence to prove that it offered a track-and-trace service, such as that described by the Commission in the contested decision, nor even that it offered a similar type of service in the context of hybrid mail. In addition, it has failed to substantiate its assertions that it was capable of offering that service. Therefore, contrary to the applicant’s claims, the Commission could deduce from this, without relying solely on the Slovak Telekom call for tenders, that the applicant was not in a position to offer a track-and-trace service in the context of hybrid mail, such as that described in the contested decision.
349    Secondly, in its reply to the letter of formal notice, the applicant did indeed state that it could provide delivery seven days a week and that it already did so ‘with certain selected products’, but did not specify that hybrid mail was concerned. Furthermore, it has not submitted any evidence in support of that statement. In its reply to the Commission’s request for information, Slovak Telekom stated that other operators, such as Slovak Mail Services and Cromwell, were capable of providing such an additional service.
350    It must therefore be held that the Commission did not err in finding, in recitals 150 to 155 of the contested decision, that the delivery of hybrid mail was accompanied by specific additional services, in particular track and trace, for which there was a demand which the applicant was not in a position to satisfy, which implied that the extension of the applicant’s exclusive rights to the service for delivering hybrid mail had deprived users of those specific services. Consequently, the complaints alleging that that there was no limitation of downstream services as to end-users must be rejected, but without prejudice to the examination of the complaint mentioned in paragraph 339 above, which will be dealt with when the first plea in law is examined (see paragraph 464 below).
351    Lastly, it must be noted that, at the hearing, the applicant argued, relying on the judgment of 20 September 2012 in DEI v Commission, (T‑169/08, ECR, EU:T:2012:448), that the Commission had erred in law in that it had taken the view that the extension of an exclusive right to a neighbouring or separate market was prohibited as such by Article 86(1) EC in conjunction with Article 82 EC, whereas it ought to have established the actual or potential abuse of that right by the applicant.
352    Even if such a complaint were admissible, in that it would not amount to a new plea in law within the meaning of Article 48(2) of the Rules of Procedure, it must be rejected in the light of the case-law cited in paragraphs 95 to 103 above. The Commission rightly found that the amendment of the Postal Law had led to an extension of the applicant’s exclusive rights, which had been granted to it for the distribution of mail under 50 grams, to the activity of delivering hybrid mail (see paragraph 318 above). In addition, the Commission did not err in finding that that extension had led, to the detriment of end-users, to a limitation of downstream services linked to the activity of delivering hybrid mail (see paragraph 350 above). It must therefore be found that the Commission rightly concluded that the applicant’s exclusive rights had been extended to another market, leading to the actual or potential abuse of that right by the applicant (recital 158 of the contested decision).
353    In the light of all the foregoing considerations, it must be held that, since the Commission did not err in considering, in recital 158 of the contested decision, that the Slovak Republic had infringed Article 86(1) EC in conjunction with Article 82 EC, the first part of the third plea in law must be rejected, but without prejudice to the examination of the complaints stated in paragraphs 174 and 339 above, which will be dealt with when the first plea in law is examined (see paragraph 464 below).
2.     The misapplication of Article 86(2) EC
354    The applicant submits that the Commission has not taken appropriate account of the Postal Directive and that, in accordance with the Postal Notice, it ought to have found that the special or exclusive rights were prima facie justified under Article 86(2) of the EC Treaty. In addition, the applicant complains that the Commission committed manifest errors of assessment when rejecting the arguments submitted for the objective justification of the State measure at issue.
355    The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes that argument.
a)     The burden of proof
356    The applicant submits that, to the extent that they fell within the limits of the reserved area as defined in the Postal Directive, the special rights were prima facie justified. Accordingly, the burden of proof fell on the Commission, which had to prove that there was no prima facie justification, which the Commission, supported by Cromwell and Others and TNT Post Slovensko, deny.
357    In the contested decision, the Commission found that, according to the case-law, it was incumbent on a Member State which invokes Article 86(2) EC, as a derogation from the fundamental rules of the EC Treaty, to show that the conditions for application of that provision were fulfilled (recital 160).
358    In that regard, it must be noted that, according to the case-law, in the context of Article 86(2) EC, it is incumbent upon a Member State or undertaking which seeks to rely on that provision to show that the conditions for the application of that provision are fulfilled (see judgments of 23 October 1997 in Commission v Netherlands, C‑157/94, ECR, EU:C:1997:499, paragraph 58; 17 May 2001 in TNT Traco, C‑340/99, ECR, EU:C:2001:281, paragraph 59 and the case-law cited; and 15 November 2007 in International Mail Spain, C‑162/06, ECR, EU:C:2007:681, paragraph 49).
359    Consequently, it was, in the present case, for the Slovak Republic or the applicant to prove that the conditions laid down in Article 86(2) EC were fulfilled.
360    That conclusion is not called into question by the applicant’s argument that the Postal Notice establishes a presumption that, to the extent that they fall within the limits of the reserved area as defined in the Postal Directive, the special or exclusive rights will be prima facie justified under Article 86(2) EC.
361    Although, as the Commission acknowledges, the Postal Notice establishes such a presumption (point 8.3), it must be found that, as it stated in the contested decision (recital 165), that presumption of prima facie justification of reserved services is not applicable if the service in question has been liberalised and if the functioning of the universal service is not endangered. In that situation, since the Member State has chosen to liberalise the activity in question, that activity can no longer be prima facie necessary for the purposes of maintaining the universal service.
362    In addition, the Court must reject the applicant’s argument that the Commission’s error in failing to apply the presumption stems from the incorrect definition of the relevant market and the incorrect conclusion that the hybrid mail delivery service had been liberalised before the Postal Law was amended. That argument is based on a premiss which is doubly incorrect, since the applicant has not proved that the Commission had made a manifest error of assessment in defining the relevant markets (see paragraph 206 above), nor that it had erred in finding that the hybrid mail delivery service had been liberalised before the Postal Law was amended (see paragraph 316 above).
b)     The examination of the existence of an objective justification
363    The applicant complains that the Commission made manifest errors of assessment when rejecting the arguments which it submitted as to objective justification, because the applicant had demonstrated that liberalisation of the delivery of postal items in the context of hybrid mail would have a severely negative impact on its revenues, as a result of which it would not be in a position to carry out its universal service obligations under economically acceptable conditions.
364    In that regard, the applicant submits that it had provided an internal report setting out the net costs of the universal service in Slovakia (‘the internal report’), supported by a study prepared by an external consultant, dated 18 July 2008, entitled ‘USO related cost in 2007; estimate of the cost burden incurred by Slovenská pošta … due to the provision of the Universal Service Obligation using 2007 data’ (‘the 2007 report’). In addition, the applicant submitted, by means of the 2007 report, estimates of the impact of liberalising the market for the delivery of postal items in the context of hybrid mail.
365    The applicant refers to five elements which could have led the Commission to wrongly call into question the implementation of the ‘net avoidable cost’ methodology (net avoidable costs being calculated, pursuant to the second paragraph of Part B of Annex I to Directive 2008/6, as ‘the difference between the net cost for a designated universal service provider of operating with the universal service obligations and the same postal service provider operating without the universal service obligations’). The five disputed elements are as follows: (i) the issue of the calculation of the intangible benefits derived from the universal service obligation; (ii) the number of post offices which would have closed if the applicant was not subject to the universal service obligation; (iii) the allocation of costs between postal and non-postal services; (iv) the allocation of costs and revenues to post offices; and (v) the impact of liberalisation of delivery of postal items in the context of hybrid mail.
366    The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes the merits of the applicant’s arguments in relation to each of those aspects.
367    First of all, it must be noted that the Commission stated, in the contested decision (recitals 23 and 168), that the legislative changes were not preceded by an evaluation of the public service burden linked to postal services, which the applicant does not dispute. In addition, following the letter of the Slovak Government of 12 March 2008, the Commission carried out a preliminary assessment under Article 86(2) EC of a possible justification of the State measure at issue. At the end of that assessment, the Commission reached the preliminary conclusion that the economic competition in the delivery of hybrid mail would not put Slovenská pošta at risk of not being able to perform its obligations related to the universal service under economically acceptable conditions. The Commission set out its conclusions in recitals 104 to 109 of the letter of formal notice, which are not challenged by the applicant.
The calculation of the intangible benefits derived from the universal service obligation
368    In the applicant’s view, the Commission wrongly suggested, in the contested decision (recital 172), that the taking into account of intangible benefits would have significantly affected the analysis. The applicant submits that it has explained in detail why the intangible benefits derived from the public service obligations cannot be considered relevant in the context of calculating the public service costs. As it has indicated, its return on assets is marginal and, therefore, its intangible benefits can therefore only be very low. In addition, the Commission’s argument is inconsistent, because it referred to the situation in Denmark to argue why the intangible benefits could not be considered limited for the applicant, whereas, in order to define the relevant market, it repeatedly referred to the ‘specifics of the Slovak market’.
369    In the contested decision (recital 172), the Commission found that the internal report and the 2007 report did not take into consideration the intangible benefits resulting from the applicant’s universal service obligation. The Commission considered that the benefits associated with the applicant’s status included advantages in terms of image which derived from the fact it delivered to 100% of households in Slovakia, but also special privileges such as the right to issue stamps and the VAT exemption which applied to the universal postal service in Slovakia. The Commission stated that the Postal Directive as amended explicitly provided that such benefits had to be taken into account when calculating the net cost of universal postal service obligations.
370    It must be noted that, although Directive 2008/6 was not applicable to the facts of the case, the applicant chose to use the methodology prescribed by Annex I to that directive which it characterises as the ‘net avoidable cost methodology’.
371    As the applicant states, Directive 2008/6 inserted Annex I to the Postal Directive, entitled ‘Guidance on calculating the net cost, if any, of universal service’, which provides, in the third paragraph of Part B thereof, for intangible benefits to be taken into consideration when calculating the net cost of the universal service.
372    The applicant does not dispute the principle that such benefits should be taken into consideration, nor that they exist and were not taken into account in the present case. Therefore, its argument seeking to call in question the Commission’s assessment of the impact of taking those benefits into account on the analysis in the present case must be rejected. First, although the applicant refers to the marginal level of such benefits, it has not adduced any verifiable evidence in order to evaluate them. Secondly, in the light of the methodology in Directive 2008/6 relied upon by the applicant, which requires such benefits to be taken into consideration, its argument is, in any event, ineffective since the applicant accepts that those benefits were not taken into account.
373    Therefore, the failure to take into consideration the intangible benefits stemming from the universal service obligation when calculating the net cost of the universal service supports the Commission’s assessment that the Slovak authorities have not provided a reasonable and reliable estimate of the cost of providing the universal service in Slovakia which justified the extension of the reserved area (recital 178 of the contested decision).
The number of post offices which would have closed if the applicant had not been subject to the universal service obligation
374    The applicant submits that the Commission’s analysis in recital 173 of the contested decision, according to which the methodology used by the applicant to calculate the net avoidable costs was flawed, since it took into account the actual number of the applicant’s post offices, instead of the minimum number demanded by the postal licence, is unfounded.
375    The applicant submits that the postal licence in Slovakia does not set a minimum number of post offices for Slovakia, but sets the conditions under which post offices are to be established. Any change in the network is subject to prior approval by the postal regulator, which explains why the applicant was not in a position to simply close the additional post offices.
376    In the contested decision (recital 173), the Commission stated that the obligations of the applicant were defined in the postal licence, including requirements regarding the accessibility of contact points of the postal network. The Commission took the view that the 2007 report did not take into account that the provision of the universal postal service only required ‘as many contacts points as defined’ in the postal licence and not necessarily the maintenance of the current entire network of post offices.
377    It must be noted that the postal licence did not require a specific number of post offices to be operated. In addition, the applicant clarified that the postal licence did not require a minimum number of post offices.
378    Moreover, as the Commission contends, without being disproved by the applicant, the necessary scope of the postal network was determined in accordance with condition No 1 of the applicant’s postal licence, in relation to the fulfilment of requirements linked to the universal service as such, for example to ensure the provision of the universal postal services and postal payment services for all users through at least one clearance and at least one delivery of postal items and remitted amounts per working day. Therefore, as the Commission contends, the exact number of post offices depended on a qualitative assessment.
379    In addition, as the Commission contends, without being disproved by the applicant, it must be noted that, in accordance with condition No 2 of its postal licence, the applicant would seem to have the possibility of replacing post offices with other access points such as contact points based on a contract or mobile post offices which may generate fewer costs.
380    However, the applicant states that its network contained 103 post offices more than the number required to meet the level of service and conditions set out by the postal licence, acknowledging that certain post offices were historically required. Consequently, those surplus post offices cannot be considered to be required by its postal licence.
381    In addition, the applicant states that, out of the 103 surplus post offices, 88 were included in the calculation of the costs of the universal service obligation as they were considered a cost burden. In so doing, the applicant acknowledges that post offices not constituting a cost burden related to the universal service obligations were taken into consideration. Consequently, it must be found that, contrary to its claims, the applicant did recognise, as the Commission contends, that too many post offices were taken into account when calculating the net avoidable costs.
382    The applicant does indeed state that the impact on the net avoidable costs calculation of excluding the 103 post offices which are not a cost burden related to the universal service is not significant. Out of the 103 surplus post offices, 88 were included in the calculation of the costs of the universal service obligation as they were considered a cost burden and the effect of carving out those 88 surplus post offices would be a decrease of [confidential] (approximately [confidential]) or [confidential] in the cost burden of the universal service obligation in 2007. Thus, the applicant argues that that carve-out does not significantly affect the result of the original analysis submitted to the Commission by the applicant.
383    However, as the Commission contends, the applicant does not explain how it arrived at its various conclusions, in particular why 103 post offices are surplus, nor why the public service burden would be reduced by [confidential] by cutting 88 post offices. In that regard, the applicant does not refer, in particular, to any specific point of either the internal report or the 2007 report.
384    Consequently, the fact that the applicant took into account too many posts offices when calculating net avoidable costs bears out the Commission’s assessment that a reasonable and reliable estimate of the cost for providing the universal service in Slovakia justifying the extension of the reserved area had not been provided (recital 178 of the contested decision).
The allocation of costs between postal and non-postal services
385    The applicant submits that the Commission failed to recognise that it was inherent to the net avoidable cost calculation method that the total net costs incurred by the universal service provider as a result of the universal service obligation are taken into account, without distinguishing the costs for a particular product or group of products. The applicant refers, in that regard, to the terms of the third paragraph of Part B of Annex I to Directive 2008/6. It states that the Commission fails to recognise that the amended Postal Directive clearly states that the net avoidable costs should be used and that, to calculate those costs, the total net costs should also be used. The Commission therefore erroneously considered that, for the purpose of calculating the net avoidable costs of the universal service, a distinction had to be made between postal and non-postal services.
386    In addition, the applicant states that the Commission failed to take into account the fact that as non-postal services are not financed from the reserved area, the costs for non-postal services are unable in any event to cause an increase of the costs related to the postal universal service obligation. To avoid the risk of cross-financing non-postal services from the reserved area, the applicant is obliged to submit to the postal regulator a cost and profitability calculation of services financed from the reserved area and other services.
387    In the contested decision, the Commission noted (in recital 174) that the fact that the applicant’s post offices were unprofitable was not only related to the provision of universal postal services.
388    The Commission then clarified, in recital 175 of the contested decision, that, according to the postal licence, the applicant had the obligation to provide postal financial services throughout the Slovak territory. The Commission also noted that, under Article 7 of the Postal Directive, ‘to the extent necessary to ensure the maintenance of universal service, Member States [could] continue to reserve services to [a] universal service provider’, and that, under Article 3 of that directive, users enjoyed a right to a universal service ‘involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users’. The Commission inferred from this that the Postal Directive only allowed universal postal services to be financed with the maintenance or the extension of the reserved area and that the cost of providing other services, such as financial services, could not be included in the cost of the universal service. The Commission took the view that the internal report and the 2007 report did not, however, distinguish the network costs attributable to postal services and those attributable to non-postal services, including services of general economic interest provided pursuant to national legislation as well as other services provided under purely commercial conditions. The Commission concluded that if any such non-postal public service obligations could justify State support under Article 86(2) EC, their financing could not be ensured through postal reservation.
389    It must be pointed out that Article 7 of the Postal Directive authorised the postal reservation ‘[t]o the extent necessary to ensure the maintenance of universal service,’ that service being defined in Article 3 of that directive as involving a ‘permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users’.
390    In addition, the applicant submits, relying on the third paragraph of Part B of Annex I to Directive 2008/6, that the calculation of net avoidable costs could take into consideration the cost of postal and non-postal services. However, it must be found that that paragraph deals, in particular, with intangible benefits and that the second paragraph of Part B, which relates to the calculation of the net cost of universal service obligations, should be referred to.
391    In that regard, the Court points out that, under the second paragraph of Part B of Annex I to Directive 2008/6, the net cost of universal service obligations is any cost related to and necessary for the operation of the universal service provision. It is to be calculated as the difference between the net cost for a designated universal service provider of operating with the universal service obligations and the same postal service provider operating without the universal service obligations. In addition, under Part A of Annex I to Directive 2008/6, universal service obligations are defined as being the obligations placed upon a postal service provider by a Member State which concern the provision of a postal service. It follows from this that, in the third paragraph of Part B of Annex I to Directive 2008/6, only the costs related to postal services are envisaged.
392    Consequently, the Commission rightly took the view, in recital 175 of the contested decision, that the costs of providing non-postal services could not be taken into consideration in calculating the cost of the universal service.
393    In reply to a written question from the Court, the applicant stated that the costs of non-postal services had been included in the calculation of net avoidable costs which it had communicated by means of the 2007 report.
394    Therefore, the fact that the applicant took into account the costs of non-postal services when calculating net avoidable costs is sufficient to bear out the Commission’s assessment that a reasonable and reliable estimate of the cost of providing the universal service in Slovakia justifying the extension of the reserved area had not been provided (recital 178 of the contested decision).
The allocation of costs and revenues to post offices
395    The applicant submits that the Commission’s statement, in recitals 176 and 177 of the contested decision, that the method of allocating costs and revenues did not give an accurate picture of basic causal relations in the postal industry, is unfounded. In the applicant’s view, the Commission has not taken proper account of the information submitted and wrongfully concluded that the method of allocating costs and revenues was inappropriate for network industries such as the postal sector.
396    The applicant argues that, in the calculation submitted to the Commission, post offices were used as final cost objects, which implied that for the calculation of the net avoidable costs account was taken of all unprofitable post offices, which would be removed in absence of the universal service obligation. The methodology used to calculate net avoidable costs is based on the commonly used Activity Based Costing (ABC) methodology, according to which direct revenues are allocated directly and indirect revenues are analysed and distributed among final cost objects, in this case post offices, using the appropriate cost driver. That methodology ensures that revenues or costs are appropriately distributed among objects forming part of the business process.
397    The applicant argues that, in the calculation submitted in the present case, the direct costs and direct revenues were allocated directly to post offices. The indirect costs were allocated, using various cost drivers to redistribute their costs to individual post offices, and indirect revenues were allocated using the same principles for indirect costs, using volumes as the main allocation driver. Therefore, contrary to the Commission’s statement in the contested decision, the internal report and the 2007 report did not use only the direct revenues and costs of a respective cost centre.
398    In that regard, it must be found that the applicant’s argument is based on a misreading of the contested decision and cannot therefore succeed. Since, as the Commission contends, its objection in the contested decision was not the fact that only the direct revenue and costs of a corresponding profit centre were used, but the fact that the allocation of costs and revenues, as carried out in the present case, did not take into account the effects of the network (recital 177).
399    In recital 176 of the contested decision, the Commission stated that the internal report and the 2007 report had divided the territory of Slovakia into as many business centres as there were post offices. It noted that most of the revenues were direct revenues and were directly assigned to the profit centres which generated them. It found that, conversely, most of the costs were common costs and were allocated to individual profit centres using various allocation keys. It found that the external consultant, which had prepared the 2007 report, and essentially the applicant, had reached the conclusion that certain business centres were unprofitable and that they would be removed but for the obligation to provide the universal service. The Commission stated that, according to the external consultant, closing down those post offices would entail costs savings of at least SKK 1.5 billion, or SKK 1.7 billion according to the applicant.
400    In the Commission’s view, those methodologies did not, however, take into consideration the very nature of postal activities and the specificities of network industries (recital 177 of the contested decision). It took the view that, as mentioned moreover by the Slovak Government, traffic in the postal sector was unbalanced. Only a very limited number of profit centres generated profits, namely those located in areas where companies posted significant amounts of mail items, whereas, conversely, profit centres at the receiving end only generated costs. The Commission considered that the revenues generated in the profitable areas could not be achieved without the non-profitable centres. The Commission inferred from this that it was incorrect to assume that the applicant would remove these unprofitable centres if it were relieved of its universal service obligation. It stated that it was, in particular, doubtful that the profits generated by important post offices such as the main post centres of Bratislava or Košice which are specialised in receiving large quantities of mail items would not be affected if 73% of the network (in terms of number of post offices) were dismantled. The Commission concluded from this that the methodology used led to the post offices at the receiving end being considered loss-making and therefore included in the public service burden even though, due to their contribution to the overall earnings of the postal operator, there were commercial reasons to maintain such post offices.
401    The applicant does not deny that there is a network effect in the postal sector, as described by the Commission in the contested decision. Further, it does not explain whether and, if necessary, how, (i) the methodology used had taken into account that network effect and (ii) the fact that the maintenance of certain loss-making post offices could be commercially justified had been taken into account.
402    Therefore, the fact that the method used in the calculation submitted by the applicant could lead to certain post offices being considered loss-making and included on that basis in the universal service burden, without any account being taken of the network effect — which implied that those post offices might have to be maintained for commercial reasons — means that an error in that regard in calculating the universal service burden cannot be excluded. Consequently, the Commission was entitled to take the view, in that regard, without error, that a reasonable and reliable estimate of the cost of providing the universal service in Slovakia justifying the extension of the reserved area had not been provided (recital 178 of the contested decision).
The impact of liberalisation of delivery of postal items in the context of hybrid mail
403    The applicant alleges three errors by the Commission in its assessment of the evidence submitted by the Slovak Republic and itself, showing that liberalisation of the hybrid mail market would have had a negative impact on the compliance with the universal service obligations.
404    In the first place, the applicant states that the Commission wrongly selected the threat to the applicant’s financial stability as a criterion of assessment (recital 191 of the contested decision), whereas it was sufficient to show that the service of general economic interest concerned could not be provided under economically acceptable conditions.
405    That argument must be rejected. First, the Slovak Government had referred to the negative effect of liberalisation on the applicant’s financial situation (recital 180 of the contested decision) and the applicant had also stated that liberalisation would result in revenue losses for it (recital 181 of the contested decision). Consequently, the Commission was simply responding to those contentions in the contested decision, in concluding, in recital 191 thereof, that ‘[o]n the basis of the above, no evidence support[ed] the assertion that the financial stability of Slovenská pošta’s postal services would be threatened’.
406    Secondly, the applicant’s argument is disproved by the other findings of the Commission in the contested decision. The Commission noted, in recital 166 of the contested decision, the case-law of the Court of Justice according to which Article 7(2) of the Postal Directive allowed the Member States to extend the postal reservation only in so far as they established that, in the absence of such a reservation, achievement of that universal service would be precluded, or that reservation was necessary to enable that service to be carried out under economically acceptable conditions (judgment in International Mail Spain, paragraph 358 above, EU:C:2007:681, paragraph 50). The Commission stated, in recital 167 of the contested decision, that, in the light of that case-law, the Member State had to demonstrate — which the Slovak Government failed to do — that, without the requested extension or reservation, the achievement of the universal service would be either precluded or could at least not be carried out under economically acceptable conditions. The Commission inferred from this, in recital 192 of the contested decision, that neither the Slovak Government nor the applicant had provided ‘sufficient evidence that the maintenance of the liberalisation of hybrid mail [had] jeopardise[d] the achievement of the universal service or that such service could not be carried out under economically acceptable conditions’.
407    In the second place, the applicant relies on the judgment in Commission v Netherlands, paragraph 358 above (EU:C:1997:499, paragraph 55), and claims that, in order to measure the impact of liberalisation, the Commission required evidence for all relevant situations, whereas, according to the relevant case-law, it is sufficient if a Member State can show that an opening up of the market would involve substantial changes on the market, which is what the Slovak Republic and the applicant itself established.
408    First, contrary to the applicant’s assertion, it is not sufficient if a Member State can show that an opening up of the market would involve substantial changes on the market. It is apparent from the judgment in Commission v Netherlands, paragraph 358 above (EU:C:1997:499, paragraph 58), that a Member State must set out in detail the reasons for which, in the event of elimination of the contested measures, the performance, under economically acceptable conditions, of the tasks of general economic interest which it has entrusted to an undertaking would, in its view, be jeopardised.
409    Secondly, the applicant does indeed state that the Slovak Republic and itself had clearly argued that it was inevitable that the liberalisation of the delivery of postal items in the context of hybrid mail would result in the applicant losing a significant part of its revenues in the bulk mail segment, which was the most lucrative part of the market and was crucial for covering the costs related to the universal service obligation. Accordingly, in the applicant’s view, the liberalisation of hybrid mail delivery could be expected to make it impossible for it to cover the costs of the universal service obligation without raising tariffs for the delivery of mail items.
410    First of all, it must be noted that recital 180 of the contested decision stated — and the Slovak Republic does not deny — that, first, when the Commission requested the Slovak Government to provide a detailed estimate of mail which could be diverted to other operators, that Government had acknowledged that the postal regulator could not provide a reliable estimate of hybrid mail outputs under fully liberalised conditions and, secondly, that the Slovak Government had not explained how this could affect the applicant’s financial stability.
411    Next, as regards the information communicated by the applicant, the Commission stated in the contested decision (recital 181) that the applicant had submitted estimates according to which, on a basis of 215 million bulk mail items per year worth SKK 2.1 billion at the time of the contested decision, a price decrease of 30% or more would reduce the total market value to SKK 1.47 billion or less, that is 70% of SKK 2.1 billion. The Commission stated that the applicant had estimated that, in addition, a loss of market share of up to 20% or more would reduce its turnover in the bulk mail segment to SKK 1.17 billion or less, that is 80% of SKK 1.47 billion. The applicant had then stated that full liberalisation of hybrid mail delivery would result in revenue losses for it amounting to SKK 924 million in an ‘optimistic scenario’ and of about SKK 1.3 billion in a ‘pessimistic scenario’.
412    It must therefore be found that the market shares were evaluated by the applicant itself, not by the Commission, contrary to what the applicant implies, the Commission having then complained that the applicant acted on the basis of unsubstantiated premisses or assumptions.
413    In that regard, the Commission took the view in the contested decision (recitals 182 to 191) that the applicant’s forecasts were based on several premisses or assumptions which were not reasoned, namely that (i) reserved bulk mail represented 80% of total mail traffic in volume (recitals 182 and 184), (ii) all bulk mail customers would switch to hybrid mail services (recitals 182, 185 and 186), (iii) the applicant’s share in the bulk mail segment would decrease by as much as 20% (recitals 182 and 187), (iv) mail volumes would remain unchanged in the long run (recitals 182 and 188) and (v) prices would decrease by at least 30% in 2010 (recitals 182 and 189). In addition, the Commission noted that the applicant had not deducted from the alleged loss in revenues any cost saving that a reduced output would entail and had therefore not provided the Commission with a reliable estimate of the overall impact of allegedly reduced output on its profitability (recital 190).
414    The applicant does not challenge those considerations with supporting evidence, but simply asserts that the Commission required double-digit precision and that the Slovak Republic and itself have proved that there is an objective justification.
415    The applicant does indeed argue that the Slovak Republic and itself had clearly stated that the net cost of the universal service obligations amounted to approximately EUR 50 million to 56 million in 2007. However, it must be recalled that the applicant has been unable to prove that the Commission wrongly concluded that there was no evidence that such a financial burden existed (see paragraphs 365 to 402 above).
416    In addition, since the applicant argues that the net revenues from its bulk mail division amounted to approximately EUR 56 million in 2007, it must be found that it thereby implicitly acknowledges that the amount of revenue from bulk mail amounted only to SKK 1.7 billion (that is EUR 56 million), not SKK 2.1 billion as it had stated during the administrative procedure (recitals 181 and 184 of the contested decision). The Commission had noted such a contradiction in recital 184 of the contested decision.
417    The applicant also argues that its total profits in 2007 amounted to approximately EUR 7 million, without, however, specifying the relevance of that statement. In any event, it must be found, as the Commission noted, that the applicant’s overall profitability in 2007 was lower than its profitability in the reserved area and in the universal service area, some of its activities, not subject to universal service obligations, being loss-making according to the figures communicated by the postal regulator (recitals 46 and 47 of the contested decision). Consequently, it must be held, as the Commission found, that the postal reservation could not be justified for the purposes of maintaining the applicant’s overall profitability and possibly to compensate for loss­making commercial activities.
418    Lastly, the Court must reject the applicant’s argument as to an inevitable loss of a significant part of its revenues in the bulk mail segment, which is the most lucrative market segment, as a result of liberalisation of the delivery of postal items in the context of hybrid mail, and is crucial for covering the costs related to the universal service obligation.
419    As the Commission stated, in essence, in recitals 185 and 186 of the contested decision, the fact that some bulk mail senders may decide to switch from traditional mail services to hybrid mail did not imply that all bulk mail senders would opt for such a switch and that the applicant would lose all bulk mail delivery. In addition, as the Commission contends, the applicant’s 2007 annual report reported an increase in net revenues from bulk mail of 13.58% compared to 2006. Consequently, even if the applicant lost some customers for bulk mail, the potential growth of that market might counterbalance those losses in part.
420    It follows from the foregoing that the applicant has failed to show that the Commission’s assessments in recitals 182 to 191 of the contested decision were erroneous.
421    Thirdly, the applicant claims that, by taking the wrong market definition as a point of departure, the Commission failed to take into account the fact that the hybrid mail offered by the private operators and the traditional delivery offered by the applicant were direct substitutes, thereby underestimating the impact of the alternative operators providing hybrid mail services.
422    It is sufficient to point out in that regard that the applicant’s argument must be rejected since it is based on the mistaken premiss of an incorrect market definition (see paragraph 206 above).
423    In the light of all the foregoing considerations, it must be found that, contrary to the applicant’s claims, the Commission did not, by the contested decision, anticipate liberalisation and that it concluded, without committing a manifest error of assessment, that the applicant had been unable to prove that the extension of its exclusive rights to hybrid mail services was necessary for the universal service to be provided under economically acceptable conditions (recital 199 of the contested decision).
424    Accordingly, the second part of the third plea in law must be rejected as therefore must the third plea in law in its entirely, but without prejudice to the examination of the complaints referred to in paragraphs 174 and 339 above, which will be dealt with when the first plea in law is examined (see paragraph 464 below).
C –  The first plea in law, alleging infringement of the principle of sound administration, on account of the absence of an appropriate investigation of all the facts and interests involved, and of the obligation to state reasons as laid down in Article 253 EC.
425    The applicant submits that, according to established case-law, respect for the rights guaranteed by the European Union legal order in administrative procedures is of fundamental importance. These guarantees of sound administration include, in particular, the obligation of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and the right of the person concerned to make his views known and to have an adequately reasoned decision.
426    By the present plea in law, divided into two parts, the applicant alleges infringement of the principle of sound administration, on account of the absence of an appropriate investigation of all the facts and interests involved and of the obligation to state reasons as laid down in Article 253 EC, as regards (i) the scope and nature of the value added services offered by the alternative operators and the applicant and the demand for such services and (ii) the rejection by the Commission of the financial information submitted by the applicant in the context of the objective justification.
427    According to the case-law on the principle of sound administration, where the institutions of the European Union have a power of appraisal, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the obligation of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; 22 October 2008 in TV2/Danmark and Others v Commission, T‑309/04, T‑317/04, T‑329/04 and T‑336/04, ECR, EU:T:2008:457, paragraph 179; and 22 March 2012 in Slovak Telekom v Commission, T‑458/09 and T‑171/10, ECR, EU:T:2012:145, paragraph 68).
428    In addition, in order to fulfil its obligation to state reasons, required under Article 253 EC, it is sufficient if the Commission sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 4 September 2009 in Italy v Commission, T‑211/05, ECR, EU:T:2009:304, paragraph 68 and the case-law cited).
1.     The scope and the nature of the value added services offered by the alternative operators and the Commission and the demand for such services
429    The applicant submits that the Commission failed properly and impartially to examine the exact scope and nature of the services offered by the alternative operators, the possibility that the applicant might offer value added services and whether there was a specific demand for value added services, such as track and trace.
430    The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes the merits of the applicant’s argument.
a)     The scope and the nature of the services offered by the alternative operators
431    The applicant submits, in the first place, that the description in the contested decision of the scope of the activities of the alternative operators in Slovakia (recitals 49 to 55) suggests that those operators had invested significantly in their own distribution network and that they had built a significant position with respect to hybrid mail. However, it appears that those observations are exclusively based on mere statements made by those alternative operators to the Commission.
432    In paragraph 25 of the application, the applicant argues that it asked the Commission to investigate the veracity and relevance of the alternative operators’ statements in that regard. In response to the Commission’s argument that that complaint is inadmissible, the applicant disputes this, arguing that the application refers to various detailed statements by it, which dispute the information provided by the alternative operators concerning the services offered by those operators and the applicant itself. Its application provides, in paragraphs 24 to 26 of the application, both arguments and supporting evidence for the claim that the Commission failed to take into account the information submitted by the applicant in order to determine the nature and scope of the services rendered by the alternative operators.
433    In the contested decision, in recitals 49 to 54, the Commission identified the applicant’s main competitors on the hybrid mail services market, namely Slovak Mail Services, Cromwell and Prvá Doručovacia. The Commission described the scope of their activities, in particular by means of the estimated coverage of their distribution networks, the number of their employees and, in the case of Prvá Doručovacia, the number of hybrid postal items distributed. In recital 55 of the contested decision, the Commission stated that TNT Post Slovensko had informed it that it had started to provide hybrid mail services in Slovakia and that it planned to develop that business.
434    It must be found that the complaint raised by the applicant, in paragraph 25 of the application, supplements paragraph 24 of the application. However, in those two paragraphs, the applicant does not indicate the precise information in recitals 49 to 55 of the contested decision which it challenges on the ground that it is based on the alternative operators’ mere assertions to the Commission, assertions which the applicant had asked the Commission to verify. In that regard, although the applicant refers to certain pages of the annexes to the application and to one annex in its entirety, it must be found that those references are too general to identify the points considered relevant by the applicant itself. In addition, the mere reference to the annexes cannot make up for the absence of the essential submissions in law which must appear in the application, because it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, the annexes having a purely evidential and instrumental function (see judgment of 14 December 2005 in Honeywell v Commission, T‑209/01, ECR, EU:T:2005:455, paragraph 57 and the case-law cited). The applicant’s complaint must therefore be regarded as inadmissible.
435    In any event, in so far as that complaint must be understood as directed at the information relating to distribution networks of the alternative operators, it must be rejected as unfounded.
436    First, if indeed the applicant seeks by its argument to challenge the information according to which Prvá Doručovacia had a national coverage of 70% for hybrid mail services, it must be noted that, in the contested decision, the Commission did in fact refer to a coverage of approximately 65%. The Commission had sought clarification from Prvá Doručovacia, which replied to it on 28 August 2008, as the applicant notes.
437    In that regard, Prvá Doručovacia had stated that the applicant could not verify the proportion of items delivered by their respective networks, since Prvá Doručovacia had never been one of its direct business partners. In addition, Prvá Doručovacia had specified the number of hybrid mail items which it had delivered in 2007, its turnover from that activity and the percentage of that turnover in relation to its total turnover. As the Commission contends, it must be found that, in its reply of 24 September 2008 to the letter of facts of 19 September 2008, the applicant had not challenged the information provided by Prvá Doručovacia in its reply. In addition, the applicant had accepted, in its reply to the letter of formal notice, that Prvá Doručovacia’s distribution network had a coverage of approximately 70%, even though it challenged the hybrid nature of the mail delivered.
438    Furthermore, the Court points out that, in its reply of 28 August 2008, Prvá Doručovacia had supplied detailed information concerning the number of its employees and had communicated to the Commission the statements made to the Slovak social security office. The applicant does not challenge that information.
439    Secondly, as regards the alternative operators, referred to in recitals 49 to 55 of the contested decision, it must be noted that Slovak Telekom had confirmed the network coverage of Slovak Mail Services and Cromwell in its reply to the Commission’s request for information.
440    In the second place, the applicant submits that the Commission should have examined carefully the scope of the ‘value added’ services and the scale on which they were offered in Slovakia (see also paragraph 174 above). In the contested decision (recital 151), the Commission stated in general terms that ‘[a]fter the reservation of the delivery of hybrid mail services, th[e] additional services as offered by the private competitors (such as track-and-trace service and seven days a week delivery) w[ere] thus no longer … available to customers’. However, it specified neither the scope of the added value of the services allegedly offered by the other operators, nor on what scale those services were offered. As the Commission acknowledged in the contested decision (recital 150), the applicant challenged the argument concerning the added value of the services provided by the alternative operators.
441    In that regard, it must be found that, contrary to the applicants’ claims, the Commission found, in recital 150 of the contested decision, that the applicant had not denied that the track-and-trace services provided by Slovak Mail Services constituted value added services.
442    In addition, in its reply to the Commission’s request for information, Slovak Telekom confirmed the added value of such track-and-trace services listing them first by order of importance in the list of additional services offered by Slovak Mail Services and Cromwell (see paragraph 331 above). Consequently, that consideration in the context of the Slovak Telekom call for tenders — the value of which is not contested — supports the Commission’s statement regarding the importance of such a service.
443    Lastly, as regards the seven-days-a-week delivery service (see paragraph 174 above), it must be borne in mind that, in its reply to the Commission’s request for information, Slovak Telekom referred to that service as an additional service, placing it third on the list of the four additional services offered by Slovak Mail Services and Cromwell (see paragraph 182 above). It must be borne in mind, as stated in paragraph 335 above, that the seven-days-a-week delivery service is a secondary, non-essential factor in the Commission’s analysis of the services which are additional to delivery in the context of hybrid mail, and the fact that seven-days-a-week delivery is only referred to in the contested decision without being substantiated by specific evidence cannot affect the legality of the contested decision with regard to the existence of a demand on the market for additional services linked to delivery.
444    It follows from all the foregoing considerations that, contrary to the applicant’s claims, the Commission examined the information concerning the scope and nature of the services provided by the alternative operators which was directly relevant and the applicant’s complaint in that regard, referred to in paragraph 174 above, must also be rejected. Consequently, the Commission did not fail to comply with its duty of examination and the contested decision does not contain an inadequate statement of reasons in that regard.
b)     The possibility for the applicant of offering value added services
445    The applicant submits that the Commission failed to examine carefully whether it was in a position to offer the value added services allegedly offered by the alternative operators (see also paragraph 339 above).
446    In the first place, the Commission stated that the services offered by the applicant were ‘specialised services whose costs [made] them totally inappropriate to hybrid mail items’. In that regard, the Commission referred to the tariffs charged by the applicant for its specialised services, as published on its website (footnote No 36 of the contested decision). However, the Commission should have investigated whether those tariffs were representative for the costs of those services and if they had been offered in the context of hybrid mail. In the applicant’s view, it was very likely that the costs of those services for processing of bulk mail items were significantly lower than the costs of those services when offered to individual citizens. The applicant submits that the Commission should at the very least have provided it with the possibility of expressing any concerns in that regard.
447    The applicant’s argument must be rejected.
448    First of all, it must be noted that the applicant does not dispute the tariffs mentioned by the Commission in the contested decision (recital 153 and footnote No 36).
449    Next, it must be noted that the applicant raises only the probability of lower costs for bulk mail items, and does not substantiate that assertion. Consequently, as regards the tariffs for the applicant’s services, the Commission could not be required, contrary to the applicant’s argument, to determine those possible tariffs.
450    In addition, in its reply of 28 August 2008 to the Commission’s request for information of 14 August 2008, the applicant stated that [confidential], which tends to endorse the relevance of the tariffs stated by the Commission in the contested decision for the applicant’s services, since the applicant did not indicate any other precise tariff.
451    Lastly, it must be borne in mind that, as found in paragraph 347 above, the Commission also relied on the applicant’s response to the Slovak Telekom call for tenders, [confidential], [confidential].
452    In the second place, the applicant submits that, although the Commission refers to ‘customers’, it relies on a single call for tenders, organised by Slovak Telekom, to prove what it refers to as the ‘prevailing demand on the market’. The Commission also concluded on the basis of this ‘one real life example’ that the applicant did not offer track-and-trace services. The Commission could not adopt such a conclusion without careful examination of all relevant facts and asking questions to various customers, including those of the applicant. The applicant submits that the contested decision suggests — and the Commission confirms — that no such investigation has taken place.
453    It must be borne in mind, first of all, as stated in paragraph 332 above, that the Slovak Telekom call for tenders was very important in terms of value (recital 17 of the contested decision), which the applicant does not deny. Consequently, the call for tenders could be considered to illustrate a demand prevailing on the market, in accordance with the judgment in Höfner and Elser, paragraph 322 above (EU:C:1991:161).
454    Next, it suffices to note that the applicant’s argument must be rejected in the light of the considerations set out in paragraphs 342, 348 and 349 above.
455    It must be concluded from this that the applicant wrongly argues that the Commission failed to examine carefully whether it was in a position to offer a track-and-trace service in the context of the hybrid mail service, as described in the contested decision, and, therefore, in that regard, that the Commission has not failed to comply with its duty of examination and the contested decision does not contain an inadequate statement of reasons.
c)     Specific demand for value added services (track and trace)
456    The applicant alleges a total lack of substantiation for the Commission’s statement in the contested decision that ‘[the] extra services, in particular track-and-trace services, appear[ed] to be one of the main criteria used by customers to select postal service providers’ (recital 150). The contested decision did not explain why the track-and-trace service would contribute to avoiding bad debt nor on what basis it would be justified to conclude that the customers concerned would have a particular interest in obtaining confirmation that the postal item concerned is indeed delivered. The Commission cannot adopt such a conclusion in the framework of administrative proceedings without careful examination of all relevant facts, for example by asking questions to various customers, including the applicant’s customers, who have not expressed an interest in such value added services in the context of hybrid mail and are apparently fully satisfied with the hybrid mail services offered by the applicant. The contested decision suggests that no such investigation has been carried out (see also paragraph 174 above).
457    In that regard, it must be borne in mind that the Commission stated, in the contested decision, that there was, in the context of the hybrid mail service, a specific demand for the track-and-trace service, as defined in recital 38 of the contested decision, and set out the reasons for this (recitals 36, 96, 97 and 150 of the contested decision) (see paragraphs 329 and 330 above).
458    In addition, the Commission also stated that Slovak Telekom had confirmed that that track-and-trace service was one of the selection criteria in its call for tenders, being of key importance for customer relations purposes and allowing the cost for collecting payments to be reduced and bad debts avoided (recital 39 of the contested decision and footnote No 9). That confirmation was apparent, in essence, from Slovak Telekom’s reply to the Commission’s request for information (see paragraph 331 above). In addition, the Slovak Telekom call for tenders may be considered to illustrate a demand prevailing on the market, in accordance with the judgment in Höfner and Elser, paragraph 322 above (EU:C:1991:161).
459    Lastly, it must be found that even if the applicant’s customers did not want that type of services — which could also confirm that the applicant did not offer them — that did not mean that there was no demand on the market.
460    Consequently, contrary to the applicant’s claims, the Commission had the necessary evidence in order to conclude, in the contested decision, that there was a prevailing demand on the market for the track-and-trace service and therefore, more generally, a demand for services additional to the delivery of hybrid mail.
461    That conclusion is not called in question by the applicant’s argument that the alternative operators made a very selective use of the applicant’s public postal network and misused the flat (nationwide) tariff for letter mail items, and that allowing them to ‘cherry pick’ by delivering the postal items below 50 grams would seriously jeopardise the applicant’s financial stability and ability to fulfil its universal service obligations.
462    That argument must be rejected in the context of examining the present plea in law, since it is not intended to prove that the principle of sound administration has been infringed, but to challenge the merits of the Commission’s rejection of the justification of the State measure at issue under Article 86(2) EC. The applicant challenged the Commission’s rejection in the second part of the third plea in law, which has been dismissed.
463    It follows from all the foregoing considerations that, contrary to the applicant’s claims, the Commission examined the factors directly relevant to the issue of whether there was a specific demand for value added services, and the applicant’s complaint in that regard, referred to in paragraph 174 above, must also be rejected. Consequently, the Commission has not failed to fulfil its duty of examination and the contested decision does not contain an inadequate statement of reasons in that regard.
464    In the light of all the foregoing, the first part of the first plea in law must be rejected, in addition to the complaints referred to in paragraphs 174 and 339 above and, accordingly, the first part of the third plea in law must be rejected, as must the third plea in law in its entirety (see paragraph 206 above).
2.     The rejection by the Commission of the financial information submitted by the applicant in the context of the objective justification
465    The applicant argues that it submitted detailed financial information to the Commission, in the form of the 2007 report, providing further explanations on earlier statements made on the impact of allowing alternative operators to physically deliver items below 50 grams in the context of what the alternative providers qualify as ‘hybrid mail’. As is apparent from the contested decision, although the Commission in principle agrees with the methodology of the external consultant in the 2007 report, it questioned the way in which that methodology had been implemented (recital 171 of the contested decision).
466    The applicant submits that, by limiting its assessment and limiting its conclusion to the statement that the implementation of the methodology in the 2007 report was ‘questionable’ (recitals 171 and 172 of the contested decision), the Commission has failed to fulfil its duty to examine all the relevant facts carefully and impartially, which infringes the principle of sound administration.
467    The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes that argument.
468    In that regard, it is sufficient to note that, contrary to the applicant’s claims, the Commission did not simply state that the methodology used by the external consultant in the 2007 report was ‘questionable’. It explained that it could not accept that methodology as implemented for three reasons (recital 171 of the contested decision). It thus explained its reservations concerning (i) the failure to take into consideration the intangible benefits (recital 172 of the contested decision) (see paragraph 369 above), (ii) the number of post offices which would have closed if the applicant was not subject to the universal service obligation and the attribution of costs between postal and non-postal services (recitals 173 to 175 of the contested decision) (see paragraphs 376, 387 and 388 above) and (iii) the allocation of costs and revenues to post offices (recitals 176 and 177 of the contested decision) (see paragraphs 399 and 400 above).
469    In addition, it must be recalled that the Commission’s contentions in that regard were not erroneous (see paragraphs 373, 384, 394 and 402 above).
470    It follows from the foregoing considerations that the Commission examined the factors directly relevant to assessing the information provided by the applicant in the context of the objective justification for the purposes of Article 86(2) EC and that, consequently, in that regard, it did not fail to comply with its duty of examination and the contested decision does not contain an inadequate statement of reasons.
471    In the light of all the foregoing, the second part of the first plea in law must be rejected as must the first plea in law in its entirety.
D –  The fourth plea in law, alleging infringement of the principles of legal certainty and legitimate expectations
472    The applicant submits that, in the context of defining the relevant market, the Commission significantly deviated from its consistent earlier administrative practice in the postal sector and from its approach regarding the definition of the relevant markets as set out in the Postal Notice. The Commission therefore infringed the principles of legal certainty and legitimate expectations. That approach led to an erroneous assessment by the Commission of the lawfulness of the State measure at issue.
473    The Commission, supported by Cromwell and Others and TNT Post Slovensko, disputes that argument.
474    It must be recalled that, according to the case-law cited in paragraph 119 above, in adopting rules of conduct and announcing by publishing them that they will apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as the protection of legitimate expectations.
475    However, it must be found that, in the present case, la Commission has not departed from the rules laid down in the Postal Notice (see paragraph 124 above).
476    In addition, as regards the Commission’s previous decisional practice, it should be recalled that, according to case-law, although the Commission must give an account of its reasoning if a decision goes appreciably further than the previous practice, economic operators have no grounds for a legitimate expectation that a previous decisional practice that is capable of being varied when the EU institutions exercise their discretion will be maintained. In particular, the applicant cannot have entertained such a legitimate expectation on the ground that the Commission had defined markets in a particular way in a previous decision, since the Commission is not bound by the findings made in such a decision (see, to that effect, NVV and Others v Commission, paragraph 113 above, EU:T:2009:144, paragraph 136 and the case-law cited). It must also be borne in mind that the present case may be distinguished from the facts of the cases relied on by the applicant (see paragraphs 198 to 202 above).
477    Lastly, it must be borne in mind that the applicant has failed to prove that the Commission erred in finding that the State measure at issue constituted an infringement of Article 86(1) EC in conjunction with Article 82 EC (see paragraph 353 above), and was not justified (see paragraph 423 above).
478    Consequently, the Commission did not infringe the principles of legal certainty and of the protection of legitimate expectations by adopting the contested decision and, accordingly, the fourth plea in law must be rejected.
479    It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
480    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must bear its own costs and must also, having regard to the forms of order sought by the Commission, Cromwell and Others and by ID Marketing Slovensko, be ordered to pay the costs incurred by those parties.
481    Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. It follows that the Slovak Republic must bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Slovenská pošta a.s. to bear its own costs and to pay those incurred by the European Commission, Cromwell a.s., Slovak Mail Services a.s., Prvá Doručovacia a.s. and ID Marketing Slovensko s.r.o.;
3.      Orders the Slovak Republic to bear its own costs.
Berardis
Czúcz
Popescu
Delivered in open court in Luxembourg on 25 March 2015.
[Signatures]
Table of contents
Legal context
A –  National legislation before 1 April 2008
1.  Postal Law
2.  General Authorisation
B –  National legislation after 1 April 2008
1.  Amended Postal Law
2.  Amended General Authorisation
Presentation of the applicant
Background to the dispute
Contested decision
Procedure and forms of order sought
Law
A –  The second plea in law, alleging infringement of the applicant’s right to be heard
B –  The third plea in law, alleging infringement of Article 86 EC in conjunction with Article 82 EC
1.  Infringement of Article 86(1) EC in conjunction with Article 82 EC
a)  Incorrect definition of the relevant market
Contested decision
The Postal Notice
The market in Slovakia
–  Demand in Slovakia
–  Supply in Slovakia
–  Conclusions
The Commission’s decisional practice and the Postal Directive
b)  The absence of extension of a monopoly into a neighbouring market and the absence of limitation of downstream services to end-users
The absence of extension of a monopoly into a neighbouring market
–  The Commission’s assessment of the State measure at issue in the light of the Postal Law and the General Authorisation
–  The Commission’s assessment of the State measure at issue in the light of the application of the Postal Law and the General Authorisation by the postal regulator
–  The Commission’s assessment of the State measure at issue in the light of the opinions and statements of the Slovak authorities concerning the proposed amendment of the Postal Law and of the General Authorisation
–  The Commission’s assessment of the State measure at issue in the light of the entry of operators onto the market
The absence of a limitation of downstream services to end-users
2.  The misapplication of Article 86(2) EC
a)  The burden of proof
b)  The examination of the existence of an objective justification
The calculation of the intangible benefits derived from the universal service obligation
The number of post offices which would have closed if the applicant had not been subject to the universal service obligation
The allocation of costs between postal and non-postal services
The allocation of costs and revenues to post offices
The impact of liberalisation of delivery of postal items in the context of hybrid mail
C –  The first plea in law, alleging infringement of the principle of sound administration, on account of the absence of an appropriate investigation of all the facts and interests involved, and of the obligation to state reasons as laid down in Article 253 EC.
1.  The scope and the nature of the value added services offered by the alternative operators and the Commission and the demand for such services
a)  The scope and the nature of the services offered by the alternative operators
b)  The possibility for the applicant of offering value added services
c)  Specific demand for value added services (track and trace)
2.  The rejection by the Commission of the financial information submitted by the applicant in the context of the objective justification
D –  The fourth plea in law, alleging infringement of the principles of legal certainty and legitimate expectations
Costs
* Language of the case: English.
1 – Confidential data omitted.