OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 27 November 2018 ( 1 )

Case C‑545/17

Mariusz Pawlak

v

Prezes Kasy Rolniczego Ubezpieczenia Społecznego

(Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))

(Preliminary ruling – Freedom to provide services – Development of the internal market of EU postal services and improvement of quality of service – Sending of procedural documents in the course of civil proceedings – Legislation of a Member State which provides for procedural effects only in the case of items sent through the post office of a designated operator)

1. The lodgement of the parties’ documents in proceedings before the courts is usually subject to time limits, and failure to comply with those time limits results in documents being ruled out of time. The document needs to have been lodged specifically with the court by the deadline, although some Member States allow posting at a post office to have the same effect as delivery at the court as regards the date.

2. The admissibility of procedural documents sent in that way is usually conditional on the inclusion on those documents of a definitive record of the date on which they were posted at the office of the postal operator. Some national legal systems therefore stipulate that such documents must be sent by registered mail, a service which comes within the universal service.

3. In the proceedings that have given rise to this reference for a preliminary ruling, a Polish court ruled that an appeal sent by post was inadmissible for being out of time. Therefore, the issue is, essentially, whether the national procedural provision on which the court relied is compatible with Directive 97/67/EC ( 2 ) and the manner in which that directive should be interpreted.

I. Legislative framework

A. EU law

1. Directive 97/67

4. Recital 20 reads: ‘Whereas, for reasons of public order and public security, Member States may have a legitimate interest in conferring on one or more entities designated by them the right to site on the public highway letter-boxes intended for the reception of postal items; whereas, for the same reasons, they are entitled to appoint the entity or entities responsible for issuing postage stamps identifying the country of origin and those responsible for providing the registered mail service used in the course of judicial or administrative procedures in accordance with their national legislation …’

5. Article 7 stipulates: ‘1. Member States shall not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. Member States may finance the provision of universal services in accordance with one or more of the means provided for in paragraphs 2, 3 and 4, or in accordance with any other means compatible with the Treaty. 2. Member States may ensure the provision of universal services by procuring such services in accordance with applicable public procurement rules and regulations, including, as provided for in Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services, competitive dialogue or negotiated procedures with or without publication of a contract notice [ ( 3 )].’

6. Article 8 provides: ‘The provisions of Article 7 shall be without prejudice to Member States’ right to organise the siting of letter boxes on the public highway, the issue of postage stamps and the registered mail service used in the course of judicial or administrative procedures in accordance with their national legislation.’

2. Directive 2006/111/EC ( 4 )

7. In accordance with Article 2: ‘For the purpose of this Directive: … (f) “exclusive rights” means rights that are granted by a Member State to one undertaking through any legislative, regulatory or administrative instrument, reserving it the right to provide a service or undertake an activity within a given geographical area; (g) “special rights” means rights that are granted by a Member State to a limited number of undertakings, through any legislative, regulatory or administrative instrument, which, within a given geographical area: (i) limits to two or more the number of such undertakings, authorised to provide a service or undertake an activity, otherwise than according to objective, proportional and non-discriminatory criteria; or … (iii) confers on any undertaking or undertakings, otherwise than according to such criteria, any legal or regulatory advantages which substantially affect the ability of any other undertaking to provide the same service or to operate the same activity in the same geographical area under substantially equivalent conditions.’

B. Polish law

8. Article 165(2) of the Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Code of Civil Procedure) ( 5 ) provides: ‘Posting a procedural document at a Polish post office of a designated operator within the meaning of the [Postal Law] or at the post office of an operator providing a universal service in another Member State of the European Union shall be equivalent to lodgement of that document at the court.’

9. Article 3(13) of the Postal Law provides that the ‘designated operator’ is the postal operator ‘required’ to provide a universal service. However, the other operators are ‘entitled’ (but not ‘required’) to carry out postal activities in their selected field.

10. By decision of the Prezesa Urzędu Komunikacji Elektronicznej (Chairman of the Office for Electronic Communications) of 30 June 2015, Poczta Polska S.A. is the designated operator for the provision of the universal postal service for a period of 10 years.

II. Background to the dispute and questions referred for a preliminary ruling

11. Mariusz Pawlak, an agricultural worker, suffered a workplace accident in respect of which he claimed compensation from the Kasy Rolniczego Ubezpieczenia Społecznego (Agricultural Social Insurance Fund, ‘KRUS’). Mr Pawlak was dissatisfied with the response received and he contested the decision of the chairman of the KRUS before the Sąd Rejonowy w Poznan-Grundwald (District Court, Poznan-Grundwald, Poland), which upheld his action.

12. The chairman of the KRUS appealed against the first-instance judgment to the Sąd Okregowy w Pozaniu (Regional Court, Poznan, Poland), but that court ruled that the appeal was inadmissible for being out of time because it was received at the court on 22 June 2016 whereas the deadline was 20 June 2016.

13. The appellate court took the view that, although the postal item, which had been posted with an operator (In Post S.A.) other than the designated operator, was postmarked 20 June 2016, the final day of the period for lodging an appeal, that fact was irrelevant. Under Article 165(2) of the KPC, only the sending of a procedural document, including by ordinary post, through the operator designated for that purpose, is regarded as equivalent to lodgement of a document with the court.

14. The chairman of the KRUS appealed in cassation to the Sąd Najwyższy (Supreme Court, Poland) against the judgment of the appellate court. The chairman of the KRUS claimed, inter alia, an infringement of Article 165(2) of the KPC, arguing that its appeal had been lodged on time because posting at the post office of a postal operator other than the designated operator is valid.

15. The ordinary chamber of the Sąd Najwyższy (Supreme Court) found that its case-law on Article 165(2) of the KPC is ambiguous and creates uncertainties, particularly with regard to the compatibility of that provision with EU law. Therefore, it submitted the question of law to the extended chamber for its view, and that chamber decided to refer to the Court of Justice the three questions transcribed below.

16. The order for reference draws attention to the difference between two opposing positions regarding the legal effects of posting a procedural document at the Polish office of a postal operator other than the designated operator: a) the majority position, according to which a document posted in those circumstances is out of time if it is received at the court after the expiry of the time limit for carrying out the procedural act; and b) the minority position, according to which the posting of a document at a Polish post office within the time limit has the same legal effects (that is, it is equivalent to lodging the document with the court) whether the office belongs to the designated operator or any other postal operator.

17. According to the referring court: – The former line of case-law takes no account of the EU law context in interpreting the scope of Directive 97/67 as not covering the rules relating to Article 165(2) of the KPC. ( 6 ) – However, the second (minority) line of case-law puts forward an interpretation consistent with EU law, although the orders ( 7 ) in which that interpretation is set out do not put forward clear arguments concerning the scope of the first sentence of Article 7(1) of Directive 97/67 or how to bring the application of Article 165(2) of the KPC into line with EU law.

18. In the light of that situation of uncertainty, the Sąd Najwyższy (Supreme Court) decided to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the first sentence of Article 7(1) of Directive 97/67/EC …, in conjunction with Article 8 thereof, be interpreted as meaning that rules of national procedural law, such as those laid down in Article 165(2) of the Law establishing the [KPC] of 17 November 1964 …, under which only the posting of a procedural document at a national post office of the designated operator, that is to say, the operator required to provide a universal postal service, is equivalent to lodgement of that document with the court, and the possibility of according such effect to the posting of a procedural document at the post office of another postal operator that provides a universal service, but is not a designated operator, is excluded, constitute a special right? (2) If the answer to Question 1 is in the affirmative, must the first sentence of Article 7(1) of Directive 97/67/EC, in conjunction with Article 4(3) TEU, be interpreted as meaning that the benefits – arising from the conferral of a special right on the designated operator in breach of the first sentence of Article 7(1) of Directive 97/67/EC – must also accrue to other postal operators, with the result that the posting of a procedural document at a national post office of an operator which provides a universal service but is not the designated operator must be regarded as equivalent to lodgement of that procedural document with the court, on the basis of rules corresponding to those arising from the judgment delivered by the Court of Justice of the European Union on 21 June 2007 in Jonkman and Others, (C‑231/06 to C‑233/06, EU:C:2007:373)? (3) If the answer to Question 2 is in the affirmative, must the first sentence of Article 7(1) of Directive 97/67/EC, in conjunction with Article 4(3) TEU, be interpreted as meaning that a party to proceedings which is an emanation of a Member State can rely on the fact that a provision of national law, such as Article 165(2) of the KPC, is contrary to the first sentence of Article 7(1) of Directive 97/67/EC?’

III. Procedure before the Court of Justice

19. The order for reference was received at the Registry of the Court on 18 September 2017.

20. Written observations were lodged by the Polish Government and the Commission, whose representatives attended the hearing held on 18 September 2018.

IV. Legal analysis

A. Question 1: interpretation of Article 7(1) of Directive 97/67

1. The parties’ observations

21. The Polish Government submits that a provision such as Article 165(2) of the KPC does not fall within the scope of Directive 97/67 and is instead a provision of procedural law, which the directive does not seek to harmonise.

22. In that connection, the Polish Government contends that Directive 97/67 was adopted on the basis of Article 95 TEC, the objective of which is the single market. However, the harmonisation of procedural provisions would require Article 81 TFEU as the legal basis. Moreover, Article 1 of Directive 97/67, which governs its scope, lists all the areas harmonised by the directive, including those relating to civil procedure. ( 8 )

23. Although the Polish Government acknowledges that the national provision may touch on the financial framework in which postal operators carry out their activities, this kind of effect does not come within the scope of Directive 97/67 either. That is borne out by Article 7(1) of the directive, which prohibits Member States from granting or maintaining in force special rights ‘for the establishment and provision of postal services’. The opposite solution would be surprising, for not even Regulation (EC) No 1393/2007 ( 9 ) governs the effects of lodging procedural documents. ( 10 )

24. The Polish Government states, in the alternative, that, in any event, Article 165(2) of the KPC does not grant any ‘special rights’, within the meaning of Articles 7(1) and 8 of Directive 97/67, a concept which must be interpreted pursuant to Article 4(2). The Polish Government draws attention to the difference between the situation of the universal service operator and that of other operators, which is reflected in the type of obligation they are required to discharge and in how they are financed. The fact that certain rights are granted to the designated operator under the public service mandate does not mean that these are always special rights.

25. The Polish government submits that the case-law of the Court of Justice, including the judgment in SOA Nazionale Costruttori, ( 11 ) is not relevant to this case because, in accordance with Article 8 of Directive 97/67, registered mail services do not constitute a special right. The right would, therefore, be linked to the provision of the universal service.

26. The Polish Government further contends that the Commission already approved the national measure at issue as part of an investigation into whether there was State aid in connection with the compensation granted to Poczta Polska for the provision of the universal service from 2013 to 2015. ( 12 )

27. The Commission observes, with regard to ‘special rights’, that, according to case-law, for such rights to exist: a) there must be an act of the Member State; b) an advantage must be granted to one or more undertakings; and c) the ability of other operators to exercise their economic activity under equivalent conditions must be substantially affected. ( 13 ) The Commission argues that account should be taken of those factors and submits that Article 7(1) of Directive 97/67 covers all legal acts which confer such advantages. The Commission also points out that that provision entails a paradigm shift in the postal sector, since it represents the final stage in the opening-up of the postal services market by removing all the special rights in force and all other obstacles to the freedom to provide postal services. ( 14 )

28. Accordingly, in the Commission’s submission, the terms of Article 165(2) of the KPC have a significant impact on activities involving the transmission of procedural documents to national courts, thereby affecting the conditions under which those services are provided by other postal operators.

29. The Commission agrees with the referring court that Article 8 of Directive 97/67 does not permit the delivery of procedural documents to be restricted to a single operator and instead authorises Member States to require that such documents be delivered by registered mail. In that connection, the Commission notes that Article 165(2) of the KPC is not limited to registered mail services and that the order for reference does not specify that it is based on reasons of public order and public security, as stipulated by recital 20 of Directive 97/67.

2. Legal assessment

(a) ‘Special right’ for the purposes of the first sentence of Article 7(1)

30. By its first question, the referring court asks whether the rules on the posting of procedural documents, which, under Article 165(2) of the KPC, can be carried out only at an office of the designated operator, constitutes a special right for the purposes of Article 7(1) of Directive 97/67. ( 15 )

31. The first sentence of Article 7(1) of Directive 97/67 clearly and expressly prohibits the grant or maintenance in force of exclusive or special rights for the establishment and provision of postal services. However, neither that nor any other provision of the directive define the terms ‘special rights’ or ‘exclusive rights’, making those terms difficult to interpret.

32. However, from a systematic point of view, it should be noted that that prohibition reproduces almost verbatim the prohibition in Article 106(1) TFEU, relating to public undertakings and undertakings that enjoy such rights, albeit adapted to the context of the postal sector which Directive 97/67 is intended to govern. It is also similar to the definition in the Notice on postal services. ( 16 )

33. On account of those similarities, and because the legal basis is Article 106(3) TFEU, under which the Commission is entitled to address directives to the Member States in order to ensure the application of Article 106 TFEU as a whole, the definitions of special rights and exclusive rights laid down in Article 2(f) and (g)(iii) of Directive 2006/111 can be used. Furthermore, Poczta Polska is an undertaking wholly owned by the State. ( 17 )

34. There are, in fact, other options for determining the meaning of those terms in provisions that are relatively similar to Directive 97/67, because they concern the liberalisation of certain sectors. ( 18 ) However, given the cross-cutting nature of Directive 2006/111, I believe that it is more suited to the aims pursued in this instance. Furthermore, the wording of the other provisions does not differ substantially from that of Directive 2006/111.

35. On that basis, it is my view that the category of ‘exclusive or special rights’, referred to in Article 7(1) of Directive 97/67, read in conjunction with Article 2(f) and (g) of Directive 2006/111, is applicable to this case. A number of reasons lead me to that conclusion.

36. First, there is an advantage lawfully granted, because: – It is enshrined in a provision of the KPC, a code ranking as a formal statute. – It takes concrete form as a right conferred on the designated operator (Poczta Polska), whose services will be preferred by senders of procedural documents specifically on account of the presumption of compliance with the time limit for sending such documents and the fact that the certificate of posting of those documents has the force of an official document. ( 19 ) Other operators do not enjoy that benefit. ( 20 )

37. Second, the right to receive and transmit procedural documents with the advantage that the posting of such documents via the designated operator is equivalent to delivery to a court (that is essentially what the advantage entails) is restricted to a single public undertaking on an exclusive basis.

38. Third, the advantage translates into more revenue for the designated operator, revenue that would otherwise be shared with other postal operators. ( 21 ) Accordingly, it affects the ability of any other undertaking to provide the same service or operate the same activity ( 22 ) under equivalent conditions. Equivalence does not exist where no competitor is able to guarantee that a procedural document entrusted to it towards the end of the statutory period (as is usually the case) will reach the court to which it is addressed before the deadline.

39. Fourth, the advantage, as such, is not granted through a tendering procedure or similar, in accordance with the EU provisions on procurement. ( 23 ) As the Polish Government stated, it is the case that the postal operator designated to provide a universal service is selected through a tendering procedure involving undertakings in the sector, ( 24 ) in accordance with national provisions that comply with the principles of objectivity, proportionality, non-discrimination and transparency. However, it can be inferred from the Polish Government’s written answer to a question from the Court that neither the selection criteria nor the award criteria relate to the reliability of posting items by registered mail, apart from the obligation to provide the sender with a certificate of posting, ( 25 ) a criterion to which the pleadings do not refer.

40. Accordingly, the advantage at issue is not inherent in the award of the universal service but rather flows from the application of Article 165(2) of the KPC once the designated operator has been appointed.

41. In the light of the considerations I shall now set out concerning the application of Article 8 of Directive 97/67, it is immaterial, for the purposes of the Court’s reply to the question referred for a preliminary ruling, whether an advantage conferred on that basis is classified as an exclusive right (in favour of a single undertaking) or a special right. What is important in either case is the connection with the exception laid down in Article 8 of that directive.

(b) The exception to the prohibition on granting special rights: Article 8 of Directive 97/67

(1) Relationship between Articles 7 and 8 of Directive 97/67

42. Pursuant to the opening words of Article 8 of Directive 97/67, the two provisions are in a relationship of principle-exception. The phrase ‘The provisions of Article 7 shall be without prejudice [ ( 26 )] to Member States’ right …’ ( 27 ) is sufficiently expressive in that regard.

43. Although the Court tends to require a strict interpretation of provisions laying down an exception, ( 28 ) a careful examination of the origins of Articles 7 and 8 will prevent premature conclusions from being drawn regarding the extent of the legislative discretion conferred on Member States by the latter article.

(2) Origins and evolution of the two provisions

44. It follows from a reading of the preparatory documents that the two provisions have been in a relationship of principle-exception since the outset. ( 29 ) Thus, in the proposal for a directive, the current Article 7 referred to a number of segments of the postal market which Member States could include within the universal service and reserve to the universal service provider (in general, the collection, transport, sorting and delivery of items of correspondence weighing less than 350 grammes). The justification for the reservation was the need to ensure the operation of the universal service under financially balanced conditions. ( 30 )

45. Those proposals passed without significant alterations into the definitive text of Article 7 of and recital 16 in the preamble to the original version of Directive 97/67. Furthermore, recital 19 in the preamble to the directive made clear that, as part of the process of gradual liberalisation of the postal market, the provisions, inter alia, on the reserved sectors were to be reviewed by January 2000, which allowed the universal service providers (at the time, the incumbent operators of the Member States) time to adapt.

46. As regards Article 8, its legislative history reveals that the proposal for a directive only laid down the right of Member States to appoint the entity or entities entitled to place letter-boxes on the public highway and to issue postage stamps. ( 31 )

47. The right of appointed entities to ‘carry registered items’, in addition to the provision of services relating to letter-boxes and postage stamps, is the result of amendment 41 of the European Parliament. ( 32 ) Although the Commission rejected that amendment, arguing that ‘there is also no justification for restricting competition in registered mail services outside the price and weight limits of the reserved area’, ( 33 ) the Council reinstated the wording of the amendment, adding the phrase ‘used in the course of judicial or administrative procedures’, ( 34 ) which was included in the final version of Article 8. The power to appoint the operators of those services was therefore widened and Member States were granted the right to organise them.

48. Directive 2008/6 brought to an end the sectors reserved under Article 7 of Directive 97/67: in the light of the development of the postal market, that reservation was not to be regarded as the preferred solution for financing universal service. ( 35 ) Article 1(8) of Directive 2008/6 inserted the current wording of Article 7, including the prohibition of the grant or maintenance in force of exclusive or special rights and the different methods of ensuring the funding of universal service, which led to the paradigm shift in the EU postal sector. ( 36 )

49. However, those changes did not affect the wording of Article 8, which remained the same. The provision is therefore a demarcation line with regard to the prohibition on the grant of exclusive or special rights laid down in Article 7. It is now necessary to determine its scope.

(3) Scope of the exception laid down in Article 8

50. It is necessary to determine, specifically, the meaning of the power conferred on Member States to organise the registered mail service used in the course of judicial procedures. The Commission and the referring court take the view that Article 8 of Directive 97/67 does not permit the Member States to reserve the delivery of procedural documents to a single operator but rather only to require that such documents be sent by registered mail.

51. I do not agree with that argument. Rather, I share the Polish Government’s view that registered mail items form part of the minimum facilities covered by the universal service pursuant to Article 3(4), third indent, of Directive 97/67. Article 4(2) of that directive provides that a single undertaking may be designated as the universal service provider. In accordance with Article 8 of Directive 97/67, there is nothing to preclude national law from organising the specific rules governing registered mail sent to courts in such a way that that service is entrusted to the universal service provider.

52. As regards the meaning of the phrase ‘registered mail service used in the course of judicial … procedures’, I deduce from its observations that the Commission no longer takes the position it set out in the Notice on postal services. ( 37 ) In that notice, the Commission appeared to limit the scope of the freedom to provide services laid down in Article 56 TFEU, in conjunction with Articles 51 TFEU and 62 TFEU, to the service of judicial documents as an expression of the exercise of official authority. The application of that interpretation to the field governed by Directive 97/67 would have been too reductionist, for Article 8 of that directive does not distinguish between a procedural document sent by an individual and a document served by the courts.

53. The difficulty in the present dispute is, as the Commission points out, that Article 165(2) of the KPC does not refer exclusively to registered mail, which suggests that the advantage applies to all postal items (in other words, also to items not sent by registered mail) sent via the designated operator, contrary to the wording of Article 8 of Directive 97/67.

54. The fact that Article 165(2) of the KPC is not confined to items sent by registered mail (it does not expressly refer to these) does not mean that it does not encompass such items. On the contrary, the general wording of that provision, which does not differentiate between the different methods of sending mail, means that it applies to all methods, including registered mail.

55. Therefore, I believe that it is necessary to identify three variants for the purposes of examining whether the exception laid down in Article 8 of Directive 97/67 is applicable, based on whether that article covers: a) ordinary mail; b) registered mail; and c) registered mail benefiting from the additional advantage provided for in Article 165(2) of the KPC.

56. As regards the first variant, an extension of the scope of the exclusive advantage to ordinary (non-registered) documents sent to a court, which are posted at the offices of the designated operator, is contrary to the aim of Directive 97/67. As I have already stated, that directive originally pursued a gradual liberalisation (recital 8) and subsequently sought to ensure the full accomplishment of the internal market. ( 38 )

57. Specifically in pursuit of that aim, Directive 97/67 limited the services which Member States were entitled to regulate as they wished, free from the restrictions laid down in Article 7, to those specifically mentioned in Article 8, without it being possible to add any others. The services in question include the registered mail service used in judicial procedures but not the ordinary mail service.

58. If, as regards the latter (ordinary mail), the designated operator in Poland were granted the same advantage as that which it already enjoys in relation to registered mail, it would be granted an exclusive right contrary to the aim of Directive 97/67.

59. As concerns the second variant, relating to registered mail services for documents sent to courts, the leeway afforded to Member States to organise their services (perhaps by excluding those services from competition and awarding them to a single undertaking) is justified by ‘reasons of public order and public security’, as recital 20 in the preamble to Directive 97/67 expressly states. The Court has repeatedly held that periods prescribed for bringing proceedings are a matter of public policy and are therefore not within the discretion of the parties or the court, since they are laid down with a view to ensuring due administration of justice, clarity and legal certainty. ( 39 )

60. It should be recalled that, according to Article 2(9) of Directive 97/67, a registered item is ‘a service providing a flat-rate guarantee against risks of loss, theft or damage and supplying the sender, where appropriate upon request, with proof of the handing in of the postal item and/or of its delivery to the addressee’. It is easy to see how, by its very nature, registered mail satisfies those requirements in judicial procedures and contributes, to that extent, to the proper administration of justice. The quality and security requirements of registered mail services laid down in Directive 97/67, in addition to their undisputed evidential value, justify their inclusion in the universal service and the fact that they are afforded certain procedural effects that distinguish them from ordinary mail services. ( 40 )

61. Accordingly, where, under a national provision, only procedural documents that are posted by registered mail via the operator designated to provide a universal service are deemed to have been lodged on time, that provision is covered by the exception in Article 8 of Directive 97/67. Member States’ freedom to lay down legislation on the organisation of that service includes the freedom to award the service to the universal service provider on an exclusive basis.

62. It is still necessary to examine the third variant, whereby procedural documents may be sent to courts by registered mail via operators other than the designated operator but those documents are not covered by the procedural benefit laid down in Article 165(2) of the KPC. ( 41 ) In that connection, the question arises as to whether Article 8 of Directive 97/67 permits that unequal treatment.

63. Initially, it could be considered that there are no grounds for justifying such discrimination, since, from a financial point of view, there may not be significant differences in terms of quality and reliability between the services provided by operators.

64. I believe, however, that a Member State is entitled to organise the rules governing the receipt of registered mail items sent to courts in such a way that only one operator (the operator with the greatest territorial coverage or which provides it with more guarantees, for example) benefits from the relevant procedural effect whereby items posted with it are deemed to be lodged with the courts on the same date.

65. That restriction is based on reasons of legal certainty and is covered by the discretion and leeway to regulate postal services that Article 8 of Directive 97/67 confers on Member States specifically in relation to registered mail in the course of judicial procedures. In that connection, the designation of an operator with responsibility for providing a universal service, ‘by taking into account the important role it plays in social and territorial cohesion’, ( 42 ) may, if a Member States so decides in the exercise of the discretion referred to, be linked to increased security in relation to the sending of procedural documents.

66. In short, I suggest that the answer to the first question referred for a preliminary ruling should be that Articles 7(1) and 8 of Directive 97/67 permit a Member State to organise the postal service used in the course of judicial procedures in such a way that only the posting of registered mail items at the offices of the operator designated to provide a universal service is recognised as equivalent to the lodgement of such items with the courts.

B. Question 2: effects of the possible incompatibility of the national legislation with Directive 97/67

1. The parties’ observations

67. The Polish Government did not submit observations on this question.

68. The Commission proposes that a distinction be drawn between the national legislature’s obligations to deal with the infringement of EU law and the obligations incumbent on the referring court to guarantee the effectiveness of Article 7(1) of Directive 97/67.

69. As regards the national legislature, it has a broad discretion to eliminate the effects of the infringement, in which connection it could: a) extend the designated operator’s advantage to other service providers; b) repeal the provision at issue; and c) adopt another solution which takes into account the principle of the equal treatment of operators.

70. As regards the referring court, the Commission deduces from the case-law on the obligation to guarantee the effectiveness of EU law ( 43 ) that it falls to that court to determine the implications of the infringement of EU law. ( 44 )

71. The Commission submits that the right to provide the service at issue under the same conditions must be applied to all operators that have difficulties accessing the market. ( 45 ) Since this case does not concern an operator faced with such difficulties, it will be necessary also to comply with the general principles of law, in particular, the principle of legal certainty as regards time limits.

2. Legal assessment

72. The referring court asks, essentially, whether the advantage enjoyed by the designated operator, granted in breach of Article 7(1) of Directive 97/67, should also accrue to other postal operators in order to avoid discrimination against those operators. ( 46 ) I believe, however, that the focus of the question should be whether Directive 97/67 precludes the current application of Article 165(2) of the KPC, which covers ordinary postal items sent via the designated operator.

73. In my analysis above, I maintained that the national legislation is covered by the exception laid down in Article 8 of Directive 97/67 as regards registered mail items sent to courts via Poczta Polska but not as regards ordinary mail items.

74. Two points follow from that proposition: a) there is no need for any conforming interpretation of Article 165(2) of the KPC in relation to procedural documents sent by registered mail because that national legislation satisfies the criteria laid down in Directive 97/67; and b) the provision at issue grants the designated operator an advantage contrary to Directive 97/67 if it is interpreted as granting that operator the exclusive right to receive ordinary postal items addressed to courts where the posting of those items is equivalent to lodging them with the courts. It follows that the latter aspect alone needs to be examined for the purposes of replying to question 2.

75. Whilst it is not my intention to replace the Sąd Najwyższy (Supreme Court) in its task of interpreting national law, for which it alone has jurisdiction, I do not believe that there is anything to prevent a reading of Article 165(2) of the KPC in line with Article 8 of Directive 97/67. ( 47 ) It is sufficient for that purpose to construe the phrase ‘posting a procedural document at a … post office of a designated operator’ as encompassing only cases in which registered, and not ordinary, mail is used, because that is the only system that, specifically because it officially guarantees the date of posting, provides the legal certainty that the provisions of civil procedure require. ( 48 )

76. If that interpretation succeeds, the designated operator will be on an equal footing with other postal operators in relation to ordinary mail items posted to courts. However, it will not be possible to go further than that because Directive 97/67 does not touch on procedural matters, leaving it to Member States, pursuant to the principle of procedural autonomy, to decide how to deal with the receipt of documents sent to their courts. In the absence of other specific EU rules on the matter, it is for the national legislature or the national courts to establish rules or to interpret the existing rules, respectively, taking account of the principles of equivalence and effectiveness of EU law. ( 49 )

77. If, however, the interpretation I propose is impossible under national law, as the referring court predicts, and the Polish legislature fails to correct the wording of Article 165(2) of the KPC, the national courts might, in accordance with settled case-law, ( 50 ) be obliged to disapply the part of the national provision that is incompatible with EU law. The disapplication of the provision at issue would, I repeat, affect only the exclusive right granted to the designated operator, as regards the equivalence of sending (posting at a post office or lodging with a court) ordinary mail items addressed to courts.

78. In order for the referring court, in proceedings of this kind, to disapply the national rule which is contrary to a provision of Directive 97/67, after it has established that it is not possible to interpret that provision in conformity with EU law, two conditions must be fulfilled: a) the provision must be capable of having direct effect (to which the referring court refers in its second question); and b) an individual must rely on that provision against the Member State that enacted the national rule in question (the subject of the third question).

79. According to the case-law, the provisions of a directive have direct effect whenever, in so far as their subject matter is concerned, they are unconditional and sufficiently precise. In that situation, those provisions may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly. ( 51 )

80. Against that background, it could be accepted, at least hypothetically, that a provision like the first sentence of Article 7(1), in so far as it includes a prohibition on the granting or the maintaining in force of exclusive or special rights, appears to fulfil the requirements that it be precise and unconditional. The prohibition is, in itself, not subject to any subsequent implementation, for example, by the national legislature.

81. That being so, and in accordance with settled case-law, ( 52 ) the referring court is required, in its capacity as a court of a Member State, to protect the rights which EU rules confer on individuals by disapplying the national provision that is contrary to Directive 97/67.

82. The partial disapplication of Article 165(2) of the KPC would mean that ordinary postal items containing procedural documents entrusted to Poczta Polska are treated in the same way, as regards the calculation of time limits, as ordinary postal items entrusted to other operators. Disapplication of the disputed national provision in that way will restore the equality between postal operators to which the referring court refers.

C. Question 3: reliance by an emanation of the State, as against an individual, on the non-conformity of the national provision with Directive 97/67

1. The parties’ observations

83. The Polish Government did not submit observations on this question either.

84. The Commission points out that the duty to interpret national law in conformity with EU law is binding on national courts. Those courts are required to consider the whole body of rules of national law and to interpret them, as far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive, which includes the possibility of changing its case-law. ( 53 )

85. That duty is limited by general principles of law and by the fact that it is not possible to require an interpretation of national law contra legem, ( 54 ) or to impose obligations on an individual ( 55 ) or to deprive that individual of rights. ( 56 ) It is for the referring court to determine whether Article 165(2) of the KPC should be interpreted in a way that ensures equality of opportunities for postal operators.

86. However, in view of the serious doubts expressed by the referring court, the Commission submits that, in accordance with the case-law cited, a public body is not entitled to rely on the first sentence of Article 7(1) of Directive 97/67 to avoid the unfavourable effects of the application of a procedural rule where the other party to the proceedings is an individual. That would be tantamount to breaching the principle nemo auditur propriam turpitudinem allegans, because that body, as an emanation of the State, would benefit from the incorrect transposition.

87. Lastly, the Commission draws attention to the possibility of applying Articles 49 TFEU and 106(1) TFEU directly if the scope of Directive 97/67 is narrower than that of the provisions of primary law which it implements, ( 57 ) and of accepting the incidental effect on the individual, which would, however, lead to revision of the case-law on the absence of reverse vertical direct effect. ( 58 )

2. Legal assessment

88. This case does not concern reliance on the (possible) direct effect of the first sentence of Article 7(1) of Directive 97/67 by an individual seeking to assert, as against the State, the rights granted to him by that directive. Rather, the opposite occurs, as question 3 indicates.

89. According to the wording of that article, the prohibition it contains could, at most, be invoked by other postal services operators that are competitors of Poczta Polska. However, in my view, there is nothing in the wording of the provision to suggest that it grants a right that can be invoked directly before the courts by users of postal services.

90. Even if that were not so, in this case the party seeking to rely on the incompatibility of the national procedural provision which is contrary to Directive 97/67 is not an individual who is suing the State but rather a public entity (the KRUS) which the referring court describes as an ‘emanation of a Member State’. It is, specifically, the latter – the appellant – that would benefit from any legislative defect caused by the State.

91. Against that background, an entity that is unequivocally a State entity cannot claim that a national court must recognise it as being in a favourable legal position (which is, by the same token, unfavourable to an individual) where that position is derived from the incompatibility of a national provision, which the court must disapply, with the provisions of a directive.

V. Conclusion

92. In the light of the arguments set out, I propose that the Court of Justice should reply as follows to the questions referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland): (1) The first sentence of Article 7(1), in conjunction with Article 8, 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 must be interpreted as meaning that: – A Member State is entitled to organise the postal service used in the course of judicial procedures in such a way that only the posting of registered mail items at the offices of the operator designated to provide a universal service is recognised as equivalent to the lodgement of such items with the courts. – It precludes a national legal provision from recognising as a valid date for the lodging of procedural documents sent via ordinary mail the date on which those documents were posted at a post office of the universal service provider, to the exclusion of other postal operators. (2) A public body classified as an “emanation of the State” cannot claim that a court should find that it is in a favourable legal position, to the detriment of an individual, where that position is derived from the incompatibility of a national provision, which the court must disapply, with the provisions of a directive.

( 1 ) Original language: Spanish.

( 2 ) Directive 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). That directive was amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3).

( 3 ) OJ 2004 L 134, p. [1].

( 4 ) Commission Directive of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17).

( 5 ) Dz.U. nr 43, poz. 296, as amended (Dz.U 2016, poz. 1822) (‘KPC’). According to the order for reference, the current version of Article 165(2) of the KPC entered into force on 17 August 2013, in accordance with Article 1(1) of the Ustawa z dnia 13 czerwca 2013 r. o zmianie ustawy – Kodeks postępowania cywilnego (Law of 13 June 2013 amending the KPC; Dz.U. 2013 r., poz. 880). The reference in that provision to the definition of ‘designated operator’ was inserted with effect from 1 January 2013, in accordance with the Ustawa z dnia 23 listopada 2012 r. – Prawo pocztowe (Postal Law of 23 November 2012; Dz.U. 2012 poz. 1529; the ‘Postal Law’).

( 6 ) According to the order for reference, the case-law of the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) on Article 83(3) of the Law of 30 August 2002 approving the Ustawa z dnia 30 sierpnia 2002 r. – Prawo o postępowaniu przed sądami administracyjnymi; jednolity tekst (Law on proceedings before the administrative courts; Dz.U. z 2016 r., poz. 718 ze zm), the wording of which is identical to that of Article 165(2) of the KPC, is the same as the predominant line of case-law of the civil courts. The order for reference cites in that connection the order of 19 October 2015 (I OPS 1/15) which, however, included a dissenting opinion in favour of taking account of EU law.

( 7 ) The orders of 23 October 2015 (V CZ 40/15), of 17 March 2016 (V CZ 7/16) and of 6 July 2016 (II PZ 14/16) held that the national provision was contrary to the first sentence of Article 7(1) of Directive 97/67 because it maintains a preferential right which provides the designated operator with additional revenue. Another order, of 16 November 2016 (III PZP 5/16), stated that there were serious doubts regarding the compatibility of that provision with EU law and argued that there was a need for the legislature to intervene.

( 8 ) Paragraphs 10 and 11 of its written observations.

( 9 ) Regulation of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

( 10 ) Paragraphs 16 to 18 of its written observations.

( 11 ) Judgment of 12 December 2013, C‑327/12, EU:C:2013:827.

( 12 ) Commission Decision C(2015) 8236 of 26 November 2015: State aid SA.38869 (2014/N) – Poland ‘Compensation granted to Poczta Polska for the net cost of the universal service obligation assumed in the years 2013-2015’ (‘Decision of 2015’), in particular, points 53 and 72. The Decision of 2015 is currently the subject of an action before the General Court of the European Union (Cases T‑282/16 and T 283/16).

( 13 ) The Commission refers to the judgment of 12 December 2013, SOA Nazionale Costruttori (C‑327/12, EU:C:2013:827, paragraph 42), and the Opinion of Advocate General Cruz Villalón in that case (EU:C:2013:530, points 32 and 33), in addition to the Opinion of Advocate General Jacobs in Ambulanz Glöckner (C‑475/99 P, EU:C:2001:284, point 86).

( 14 ) The Commission cites the judgment of 16 November 2016, DHL Express (Austria) (C‑2/15, EU:C:2016:880, paragraph 20), and the Opinion of Advocate General Mengozzi in that case (EU:C:2016:168, point 42).

( 15 ) The referring court does not ask whether the national provision may come under the category of exclusive rights.

( 16 ) Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services (98/C 39/02) (OJ 1998 C 39, p. 2; ‘Notice on postal services’).

( 17 ) Paragraph 3 of the Decision of 2015.

( 18 ) Namely, Article 1(6)(b) of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21); Article 1(4) of Commission Directive 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment (OJ 2008 L 162, p. 20); and Article 4(3) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

( 19 ) That was confirmed by the Polish Government in reply to a request for information addressed to it by the Court: ‘in accordance with Article 17 of the [Postal Law], the certificate of posting a certified item …, issued by a post office of the designated operator, has the value of an official document’.

( 20 ) See point 53 of the Decision of 2015: ‘Granting official power only to confirmations issued by the USP is not only intended to guarantee certainty of postal operations in terms of registered letters, but also means that a delivery made within a legally prescribed time limit may affect the recipient’s legal situation. The indirect benefits on account of the official power of postal stamp become apparent when the sender of a registered item chooses the services of PP because of this aspect, while (s)he would choose another operator if all operators had this right. The benefit is estimated on the basis of market research for individual and institutional clients …’

( 21 ) The Decision of 2015 (point 72) quantified that revenue as EUR x million, a figure deleted from the published version for reasons of confidentiality.

( 22 ) I have left out the criterion relating to ‘the same geographical area’, which is not relevant for these purposes as the case concerns the whole of national territory.

( 23 ) Directive 2014/25.

( 24 ) Provided that they fulfil the criteria laid down by Article 71(2) and (3) of the Postal Law.

( 25 ) According to the Polish Government’s written answer, that is stipulated in Article 3(1)(f) of the rozporządzenie Ministra Administracji i Cyfryzacji z dnia 25 listopada 2013 r. w sprawie konkursu na operatora pocztowego wyznaczonego do świadczenia usług powszechnych (Regulation of the Minister for Administration and Digitalisation of 25 November 2013 on the tendering procedure for selecting the postal operator designated to provide the universal service (Dz.U. 2013, poz. 1466; ‘MAiC Regulation’).

( 26 ) No italics in the original.

( 27 ) The wording is almost identical in other official languages: ‘ne portent pas atteinte au droit des États membres’, in French; ‘shall be without prejudice to Member States’ right to’, in English; ‘lasciano impregiudicato il diritto degli Stati membri’, in Italian; ‘Artikel 7 berührt nicht das Recht der Mitgliedstaaten’, in German; and ‘O artigo 7.° não prejudica o direito de os Estados-membros’, in Portuguese.

( 28 ) For example, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds (C‑201/13, EU:C:2014:2132, paragraph 22 and the case-law cited).

( 29 ) See Articles 8 and 9, precursors of the current Articles 7 and 8, of the Proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service (COM(95) 227 final; OJ 1995 C 322, p. 22), pp. 27 and 28.

( 30 ) Recital 15 in the preamble to the proposal for a directive.

( 31 ) Proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service (COM(95) 227 final, p. 28 (the then Article 9)).

( 32 ) Legislative resolution embodying Parliament’s opinion on the proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service (COM(95) 227) (OJ 1996 C 152, p. 20).

( 33 ) Amended proposal for a European Parliament and Council Directive on common rules for the development of the internal market of Community postal services and the improvement of quality of service (COM(96) 412 final) (OJ 1996 C 300, p. 4).

( 34 ) Common Position (EC) No 25/97 adopted by the Council on 29 April 1997 with a view to adopting Directive 97/…/EC of the European Parliament and of the Council on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1997 C 188, p. 9), p. 23.

( 35 ) See recital 11 in the preamble to Directive 2008/6.

( 36 ) As Advocate General Mengozzi rightly observes in his Opinion in DHL Express (Austria) (C‑2/15, EU:C:2016:168, point 42).

( 37 ) Notice on postal services, point 5.2.

( 38 ) According to recitals 11 to 13 of Directive 2008/6.

( 39 ) Judgment of 8 November 2012, Evropaïki Dynamiki v Commission (C‑469/11 P, EU:C:2012:705, paragraph 50 and the case-law cited). Although it concerns time limits in the system of remedies under EU law, I see no reason not to apply that reasoning to national legal systems on whose national traditions it was undoubtedly based.

( 40 ) Ordinary postal items do not provide the same guarantees (inter alia, the guarantee relating to the date on which the item was posted with the operator) as registered items with a certificate of posting that has the force of an official document. Such items are, therefore, unable to satisfy the public order requirements relating to judicial procedures.

( 41 ) At the hearing, the Polish Government confirmed that those operators can also provide the registered mail service but do not benefit from the advantage laid down in Article 165(2) of the KPC.

( 42 ) Article 4(2) of Directive 97/67, as amended by Directive 2008/6.

( 43 ) Judgment of 9 March 1978, Simmenthal, 106/77 (EU:C:1978:49, paragraph 16).

( 44 ) In accordance with the judgment of 10 April 2008, Marks & Spencer (C‑309/06, EU:C:2008:211, paragraph 61).

( 45 ) The Commission refers to the judgments of 10 December 1991, Merci convenzionali Porto di Genova (C‑179/90, EU:C:1991:464, paragraph 23), and of 19 May 1993, Corbeau (C‑320/91, EU:C:1993:198, paragraphs 16 to 19).

( 46 ) According to the referring court, the accrual of that advantage to other postal operators is based on ‘rules corresponding to those arising from the judgment delivered by the Court of Justice of the European Union on 21 June 2007 in Jonkman and Others (C‑231/06 to C‑233/06, EU:C:2007:373)’, that is, rules relating to the prohibition of discrimination.

( 47 ) In paragraphs 31 to 33 of the order for reference, the national court explains that, according to the predominant line case-law, it is not possible ‘to interpret that article in conformity with EU law’.

( 48 ) In reply to the Court’s questions, the Polish Government stated that the Postal Law (Article 17) only confers the ‘force of an official document’ on the certificate of posting issued by the designated operator and that ‘the use of registered mail is the established and usual method of posting procedural documents via the designated operator. That method (unlike ordinary mail) ensures that it will be possible to prove that the sender complied with the procedural time limits’.

( 49 ) See the judgment of 27 June 2018, Diallo (C‑246/17, EU:C:2018:499, paragraphs 58 and 59 and the case-law cited).

( 50 ) Judgment of 6 September 2012, Philips Electronics UK (C‑18/11, EU:C:2012:532, paragraph 38 and the case-law cited).

( 51 ) Judgment of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 31).

( 52 ) Judgment of 6 September 2012, Philips Electronics UK (C‑18/11, EU:C:2012:532, paragraph 38 and the case-law cited).

( 53 ) The Commission refers to the judgments of 13 November 1990, Marleasing (C‑106/89, EU:C:1990:395, paragraph 8); of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 38); and of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 33).

( 54 ) Referring to the judgments of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 39), and of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 32).

( 55 ) Judgment of 26 September 1996, Arcaro (C‑168/95, EU:C:1996:363, paragraph 42).

( 56 ) Judgment of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 36).

( 57 ) In accordance with recital 41 in the preamble to Directive 97/67, which applies without prejudice to the provisions of the Treaty.

( 58 ) The Commission refers, inter alia, to the judgment of 26 September 2000, Unilever (C‑443/98; EU:C:2000:496, paragraph 51).