2002/344/EC: Commission Decision 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 (Text with EEA relevance.)(notified under document number C(2001) 3186)
Date: 2001-10-23
Institutions: European Commission
Subjects: France, complaint to the Commission, infringement of EU law, postal service, preferential price, provision of services, restriction on competition

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COMMISSION DECISION

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

(notified under document number C(2001) 3186)

(Text with EEA relevance)

(Only the French text is authentic)

(2002/344/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 86(3) thereof,

Having given the French authorities and La Poste the oppor-
tunity, by letters of 27 October 1999 and 30 November 1999
respectively, to make known their views on the objections
raised by the Commission with regard to French postal
legislation relating to mail preparation services,

Mail preparation is in all cases an activity upstream of
acceptance of the items by La Poste as part of the
services it provides within the reserved area. The very
nature of mail preparation involves use of the reserved
services. From a conceptual standpoint, and although in
practice the various tasks involved are interlinked (1) in
a continuum of services that are often provided by the
same firms, the term ‘mail preparation’ covers two
different types of activity (2).

Whereas:

1. THE FACTS

1.1. The relevant services

(1)

This Decision relates exclusively to the relations between
La Poste (the French postal service) and those of its
commercial partners which are mail preparation firms
operating in markets upstream of its own main activity,
namely basic postal services. These commercial partners
can be regarded both as:

1.1.1.

Services provided on behalf of originators of mail

(2) Mail preparation may firstly cover a service provided for
the benefit of a mail originator. In such cases, the activity
involves making up items (printing, enveloping or plastic
wrapping, labelling, addressing and franking), collecting,
bundling and sorting them and delivering them to the
offices of La Poste.

— users in so far as they act as a proxy for originators
of mail, who entrust them with the delivery of their
items to the offices of La Poste, and

— suppliers of La Poste, in so far as they provide
certain services in place of the public postal oper-
ator, upstream of the operations lying within the
scope of its reserved area.

(1) In their memo to the Commission dated 4 February 2000, p. 1,
the French authorities refer to ‘the real interlinking of the different
tasks necessary for the swift and cost-effective treatment of bulk
mail’.

(2) See memo from the French authorities dated 4 February 2000,
p. 1, and letter from La Poste dated 18 December 1998, p. 2; see
also L’Analyse des relations contractuelles entre La Poste et les routeurs,
Tera Consultants, 2 February 2000, p. 9, report forwarded to the
Commission by La Poste.

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(3)

Performing this type of activity for customers generating
mail items could be likened to operating a mail room on
behalf of larger companies (3). The Commission notice
on the application of the competition rules to the postal
sector and on the assessment of certain state measures
relating to postal services (4) points out
‘mail
rooms of larger companies are now often operated by
intermediaries, which prepare and presort mail before
handing it over to the postal operator for final distri-
bution’. Mail preparation firms engaged in this activity
can be treated as independent ‘intermediaries’ between
senders and La Poste. They alone are liable for the
prepayment of postage to the latter.

that

(4)

Performance of these activities on behalf of originators
of mail gives rise broadly to two types of remuneration,
which are usually combined:

— direct remuneration for services involving the mak-
ing up of mail items, the supply of address lists,
etc.,

— remuneration for the intermediating role played by
the mail preparation firms and for the benefit of
access to favourable postal charges. Mail prep-
aration firms can enter into ‘product contracts’ with
La Poste (and in particular the contract called
Postimpact) which allow access to favourable postal
rates (e.g. FRF 1,68 per item for 20 000 items
dispatched under the Postimpact contract, instead
of FRF 2,7 per item at the Ecoplis bulk rate);
broadly, the mail preparation firms pay La Poste
the postal charges at the favourable rates applicable
and then earn a margin by invoicing originators for
more than the total postal charges they have
actually paid to La Poste.

1.1.2.

Preparatory work performed in place of La Poste

(5) Mail preparation may secondly cover services performed
in place of La Poste. This activity involves making up
and placing items in mailbags complying with certain
standards, sorting to a greater or lesser degree by
destination and delivering items to offices of La Poste
designated by the latter for the purpose. In such an

(3) On this concept, see the Green Paper on the development of the
single market for postal services (COM(91) 476 final, 11.6.1992),
Glossary, p. 367, where mail preparation firms are described as
‘intermediaries’.

(4) OJ C 39, 6.2.1998, p. 2, points 1 and 2.5.

arrangement the mail preparation firms act as suppliers
of La Poste. By allowing certain preparatory tasks to be
externalised in this way, La Poste makes savings in
handling operations and efficiency gains (5).

Since 1990 La Poste has been remunerating mail
preparation firms directly by means of remuneration
‘per thousand’, in other words according to volumes
posted, for preparatory tasks performed on its behalf,
under ‘technical’ contracts. The nature of the remuner-
ation varies chiefly according to criteria to do with the
quality of preparation of the items and the degree of
sorting performed. Among these technical contracts, the
‘preparation’ contract (6) plays a strategic role: unlike the
other technical contracts, it enables the service provider
to bundle items of a different nature and of low volume
and thus to qualify for quality-based remuneration
(whereas the volume thresholds applied normally reserve
the benefit of quality-based remuneration solely for
identical
It should be noted
that technical contracts are accessible only to mail
preparation firms that have also entered into a product
contract with La Poste and attain a given volume
threshold in terms of the number of items posted.

items posted in bulk).

1.2. Mail preparation firms

(6)

total

Defined broadly (7),
turnover achieved on the
mail preparation market (measured by aggregating the
turnover generated by firms involved in mail prep-
aration) has been estimated (8) at FRF 6,4 billion in 1998,
broken down as follows:

(5) This type of arrangement cannot, however, be described as a
subcontracting relationship: La Poste does not in any way act as a
principal, and items are delivered to post offices at the initiative
of the mail preparation firms.

(6) There are also two other types of technical contract: a quality
contract, under which the quality of the work is remunerated
according to a number of criteria (adherence to specified posting
dates, accuracy of sorting, compliance with rules on filling of
postbags, etc.) and a presentation contract, which remunerates
quality, along the lines of the above, but also the degree of sorting
performed.

(7) Using a narrower definition, the abovementioned report L’Analyse
des relations contractuelles entre La Poste et les routeurs puts total
turnover on the mail preparation market at FRF 4,8 billion in
1998. The disadvantage of this estimate is that it completely
disregards the flow of business correspondence, some of which is
handled by mail preparation firms (see below).

(8) Source: Routeurs ou prestataires de services — Synthèse de l’étude
réalisée par le cabinet GBC à la demande de La Poste, June 2000.

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— FRF 3,5 billion generated by mail preparation firms

proper,

— FRF 2 billion generated by laser printing firms,

— FRF 0,9 billion generated by parcelling specialists.

The services provided by mail preparation firms have to
do mainly with the making up of postal items and the
performance of preparatory tasks in place of La Poste,
as described in sections 1.1.1 and 1.1.2. To a lesser
extent, some mail preparation firms also offer desktop
publishing services (see below), hire out address lists,
supply envelopes, etc. According to their predominant
activity, there are three main kinds of mail preparation
firms: those that make up postal items, those that bundle
different types of item and those that perform sorting.

Laser printing mail preparation firms are for their part
more specialised in desktop publishing activities, i.e. the
production of business correspondence using com-
puterised data on behalf of high-volume mail originators.
These firms offer desktop publishing services in addition
to mail preparation proper (9).

Parcelling is a specific mail preparation activity involving
the making up of parcels and often including ancillary
services (management of orders, storage, etc.). The
present Decision does not relate to this activity or to the
firms concerned.

The reality behind this simplified classification is in fact
more complex. Many mail preparation firms offer a
more or less extensive and sophisticated range of services
targeted more or less specifically at certain market
segments and are engaged in activities belonging to
all three categories outlined above. The analysis can

(9) Laser printing mail preparation firms, which have in fact integrated
message handling using computerised data into their traditional
mail preparation operation, should not be confused with laser
printing firms in the strict sense which are not engaged in any
mail preparation activity. According to the complainant, laser
printing mail preparation firms handle around one third of the
total flow of business correspondence entrusted to specialised
service providers, with ‘pure’ laser printing firms accounting for
the rest.

therefore be refined by assigning mail preparation firms
to a large number of subcategories according to the
nature of their activity and the profile of their cus-
tomers (10).

The following are active on the mail preparation market
in France: on the one hand, private, independent mail
preparation firms, such as the members of the Syndicat
national des entreprises de logistique de Publicité Directe
(hereinafter the SNELPD), a trade association, which
offer mail preparation services to any originator of large
volumes of mail and, on the other hand, La Poste,
which offers mail preparation services either directly or
indirectly via certain subsidiaries.

Private mail preparation companies and independent
laser printing firms are usually small or medium-sized
enterprises. Their average turnover is slightly more
than FRF 15 million. The sector is, however, quite
concentrated, with the 20 largest businesses accounting
for around 55 % of total turnover.

(7)

(8)

(9)

La Poste and some of its subsidiaries offer their business
customers services that compete directly with services
offered by the mail preparation companies described.

(10)

La Poste thus offers franking, making up and posting
services (11), in particular via the ‘Carré Pro’ facilities at
over 400 post offices. The turnover of the ‘Carré Pro’
service, albeit difficult to isolate, is estimated by La Poste
at some FRF 227 million in 1999 (12).

(11) The subsidiaries of La Poste that are active in the mail
preparation sector concerned by this Decision are chiefly
Datapost, Mikros and Dynapost. The activity of Data-
post, a company set up in 1994 and specialising in
desktop publishing services, overlaps with that of the
laser printing mail preparation firms. Datapost offers,

(10) In the abovementioned study carried out for La Poste, the IT
marketing surveys and advisory consultancy GBC draws the
following distinctions between mail preparation firms: bundling
firms, which perform exclusively mail sorting and preparation
tasks on behalf of La Poste; integrators, which offer a more or
less extensive range of services in the direct marketing field, from
market surveys to the management of mailings; parcelling firms
that are subsidiaries of the large mail-order companies; specialised
mail make-up firms that have developed know-how in fields
related to mail preparation (binding, finishing, glueing, address-
ing, enveloping or plastic wrapping, etc.); generalist mail prep-
aration firms operating at national or local level; laser printing
mail preparation firms; mail preparation firms dealing mainly in
parcels; etc.

(11) Such as the Mailev@ service launched in 2000, which performs
tasks ranging from the printing of documents and envelopes to
the introduction of the finished items into the postal network.
(12) Statement made at a meeting between La Poste and the Com-
mission’s Directorate-General for Competition held in Brussels
on 17 January 2000.

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among other things, pure desktop publishing services
(computerised sorting and preparation of mail pro-
duction, printing, etc.) but also the enveloping, making
up and delivery of items to the offices of La Poste.
The company has around 165 employees and over
250 customers. Its turnover trebled between 1996 and
1999, rising from FRF 32 million to FRF 107 million.
Datapost incurred heavy operating losses at least until
1999. In November 2000 La Poste acquired (13) the
company Mikros (14), another major player in the
desktop publishing and mail preparation business. That
acquisition was followed by the creation of a ‘common
pole’ linking together Mikros and Datapost. The subsidi-
ary Dynapost is for its part involved in the management
of companies’ internal mail but also provides collection,
franking and sorting services (15).
It has around
FRF
500 employees
275 million in 1999.

and generated turnover of

(12)

La Poste has not disputed the fact that it provides mail
preparation services, either itself or via the subsidiaries
described (16), whether acting as suppliers of La Poste or
as users of its monopoly network (17). All in all, La Poste,
both through its own products and via Datapost and
Mikros, on the one hand, and Dynapost, on the other, is
thought to have a share of at least 10 % of the mail
preparation and desktop publishing market (18).

(13) Via its holding company Sofipost (50 % of the shares in Mikros)
and jointly with Steria and the Italian company Postel (41 % of
the shares).

(14) Mikros employed 250 people and generated turnover of FRF
170 million in 1999. The company offers a number of services
ranging from document formating to the enveloping and making
up of postal items.

(15) In 1998 Dynapost was awarded ‘top quality mail preparation
firm’ status by La Poste. This quality label, which was created in
1994 but abandoned in 1999, rewarded mail preparation firms
meeting certain quality criteria and gave access to special
technical conditions and scales of charges, in particular remuner-
ation paid by La Poste for the provision of security in respect of
prepayment.

(16) In particular, in its letter of 18 December 1998 setting out its
comments on the content of the complaint, La Poste disputes
solely the existence of a ‘direct link’ between the mail preparation
business and, on the one hand, its ‘contrat Kiosque’ service and,
on the other hand, the activities of its subsidiary Médiapost. This
Decision does not include those two operations in the description
of the presence of the La Poste group on the mail preparation
market.

(17) See point 1 of this Decision.
(18) The turnover in the relevant services achieved by La Poste and
the subsidiaries concerned totalled nearly FRF 800 million in
1999. This is to be compared with the value of the mail
preparation market, estimated in the abovementioned studies at
between FRF 4,8 billion and FRF 6,4 billion.

(13) The services offered by mail preparation firms are
therefore supplied to originators of mail in competition
with La Poste and its subsidiaries. However, given La
Poste’s postal monopoly, mail preparation firms, in their
dual capacity as users of the postal network and suppliers
of services to the public operator, have no alternative
but to accept the financial and technical conditions laid
down by La Poste for the acceptance of mail processed
by them. La Poste is thus an unavoidable partner for the
satisfactory performance of the services offered by mail
preparation firms to their customers.

1.3. The applicable legislative and regulatory framework

1.3.1.

Principles governing relations between La Poste and
its users and commercial partners and the monitoring
of those relations

(14) The Law of 2 July 1990 on the organisation of the
public postal and telecommunications service (19) (here-
inafter the 1990 Law) and the service obligations of La
Poste, as approved by Decree No 90-1214 of 29 Decem-
ber 1990 (20) lay down the conditions in which the
services offered by the public operator are to be supplied
and the rules governing its relations with both its users
and its commercial partners.

(15) Article 25 of the 1990 Law stipulates generally that the
relations between La Poste and its users and suppliers
and third parties ‘shall be governed by ordinary law’.
Article 23 of the service obligations of La Poste confirms
that ‘relations between La Poste and users shall be
governed by contracts under ordinary law’.

(16) With regard more specifically to relations with users, it
is for La Poste, pursuant to Article 23(2) of its service
obligations, to determine ‘the conditions of supply of its
products and services’. Article 23 adds that ‘La Poste may
enter into contracts the terms of which are stipulated by
agreement between the parties on the basis of a specific
estimate of costs’. In such cases, La Poste is under the
additional obligation to distinguish between the reserved
and competitive activities comprising the services
offered: ‘in such cases, where La Poste provides a service
comprising the performance both of activities covered

(19) Law No 90-568 of 2 July 1990 on the organisation of the public
postal and telecommunications service (French Official Gazette
of 8 July 1990).

(20) Decree No 90-1214 of 29 December 1990 om the service
obligations of La Poste and the postal and telecommunications
services code (French Official Gazette of 30 December 1990,
p. 16578), as amended by Decree No 93-775 of 26 March 1993
(French Official Gazette of 30 March 1993, p. 5718), Decree
No 96-1022 of 27 November 1996 (French Official Gazette of
29 November 1996, p. 17336) and Decree No 2001-122 of
8 February 2001 (French Official Gazette of 10 February 2001,
p. 2203).

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by exclusive rights and of activities which are open to
competition, the contract shall distinguish between the
two categories of service in terms of both their supply
and invoicing’.

the general principle of cost orientation applies (22),
but the French rules do not spell out the impli-
cations of that principle or the arrangements for
checking whether it is complied with (23).

(17) Article 22 of the service obligations sets out the possible
arrangements for ‘opening up the network’ to users. La
Poste thus may, either within or outside its area of
activity: — ‘open up access to its network for its
subsidiaries, under agreements specifying in particular
the conditions in which La Poste is to be remunerated;
[and] — enter into agreements with other partners
concerning distribution or provision of services. Any
such agreements concluded shall be communicated to
the minister responsible for postal and telecommuni-
cations services.’

(19) On the subject of relations with suppliers, and in
particular the conditions in which they are remunerated,
the service obligations of La Poste do not contain any
detailed rule. Neither does Article 27 of the 1990 Law
go any further than to provide that ‘the procedures for
the conclusion and scrutiny of each public operator’s
contracts shall be laid down by its board of directors,
under the relevant arrangements established by the
service obligations (...)’. That Article therefore applies
only to contractual relations established in the context
of supply contracts concluded by the public operator.

(18) The conditions applied to users are not laid down in
the service obligations. The French authorities have
nevertheless drawn the Commission’s attention (21) to
the provisions of the service obligations which establish
general rules concerning the extent of the freedom given
to La Poste in setting scales of charges and contractual
conditions in its relations with its users. The provisions
mentioned by the French authorities allow a distinction
to be drawn between two situations:

(20) Having due regard to the above described regulatory
framework and the explanations provided by the French
authorities, and applying the conceptual distinctions set
out in section 1 of this Decision, the extent to which La
Poste is monitored in its relations with mail preparation
firms is determined as follows.

— Where the services concerned fall within the exclus-
ive area of activity of La Poste,
the scales of
in accordance with
charges it proposes must,
Article 33(1)(b) of its service obligations, be submit-
ted to the minister responsible for postal and
telecommunications services and the minister for
economic affairs and finance for approval. Likewise,
under Article 4 of the service obligations, where La
Poste enters into standard contracts with users as
part of the performance of the services which it has
the exclusive right
those standard
contracts must be submitted to the minister respon-
sible for postal and telecommunications services
for approval;

to provide,

— On the other hand, under Article 33(1)(c) and (2)(a)
of its service obligations, La Poste is free to set the
charges for the services it offers under competitive
conditions, whether or not they form part of the
universal service. These charges must be simply
transmitted to the relevant ministers for infor-
mation. As regards services open to competition
which fall within the scope of the universal service,

(21) Memo from the French authorities dated 4 February 2000,
points 2.12 and 2.1.4, and notification dated 23 February 2001
of Decree No 2001-122 of 8 February 2001 amending the
service obligations of La Poste.

Where mail preparation firms can be classed as users of
the network operated by La Poste, the charges they have
to pay for access to that network are either:

— subject to approval by the ministers responsible
where the service in question falls within the
scope of the monopoly (this is the case with the
Postimpact rates (24) and the ‘letter’ and ‘Ecopli’ (25)
rates), or

— simply communicated to the ministers for infor-
mation where the service in question is provided in
competition (this is the case with the ‘Catalogues’
or ‘Coliéco’ rates, for example).

(22) Under Article 33(1)(a) of the service obligations of La Poste as
amended by the Decree of 8 February 2001, ‘the charges for
services forming part of the universal service provided to users
must take account of costs’.

(23) In their letter to the Commission dated 17 July 2001, sec-
tion 2.1.1, p. 9, the French authorities regard sorting operations
as forming part of the universal service: ‘sorting is therefore an
activity that does form part of the universal service (...)’.

(24) The Postimpact rates chiefly concern direct mail

items and

account for the bulk of the business of mail preparation firms.
(25) As far as mail preparation firms are concerned, these rates apply
only to flows of business correspondence and are therefore less
important than the Postimpact rates.

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Where mail preparation firms can be classed as suppliers
of La Poste, the rates concerned, for example remuner-
ation ‘per thousand’, are simply communicated to the
ministers for information (26).

It is clear from the explanations given by the French
authorities that scrutiny never extends to the technical
standards or non-price aspects of relations between La
Poste and mail preparation firms.

(21) The relevant French legislation therefore makes La
Poste responsible for determining its own contractual
conditions in its relations with its commercial partners
by means of legal instruments governed by private law.
It circumscribes the freedom thus granted to La Poste
only in well defined cases. The scope of supervision by
the French State is narrow and furthermore limited
strictly to price aspects.

(22)

In these circumstances, La Poste is able itself to lay
down, in the absence of any supervision, a whole range
of technical standards that have a decisive impact on the
access of mail preparation firms to its network. La Poste
thus lays down the standards for the presentation of
mail and the arrangements for the delivery to post
offices of batches of prepared mail (types of mailbag
that must be
used, minimum volume posted, etc.)
complied with in order to qualify for specific conditions.
Those conditions are published in the form of ‘instruc-
tions’ in the Bulletin de La Poste.

(23) The fact that the rules adopted by La Poste in exercising
this freedom are classed as ‘contractual’ under French
law in no way alters the fact that it is La Poste which
takes the initiative and adopts the rules in their final
form. Neither does it affect
the impact which the
measures have on the access of firms independent of La
Poste to the postal network and the reserved services, and
therefore on the conditions in which mail preparation
business can be carried on.

1.3.2.

The official authorities responsible for monitoring La
Poste

(24)

French legislation assigns jointly to the minister respon-
sible for postal and telecommunications services and the
Minister for Economic Affairs and Finance the dual task

(26) According to the French authorities (letter to the Commission
dated 17 July 2001), ‘the sorting dimension of mail preparation
can be analysed as an activity forming part of the universal
service (...)’. They do not, however, maintain that in the case in
point the remuneration of the services concerned is monitored
from the standpoint of cost orientation.

of framing the policy of La Poste and of monitoring
compliance by La Poste with the applicable legislation
and with the competition rules. In practice, the Minister
responsible for postal and telecommunications services
is none other than the Minister for Economic Affairs and
Finance (hereinafter ‘the Minister’) (27).

(25) As far as postal rates are concerned, the Minister’s
powers derive from the above described provisions of
La Poste’s service obligations. The legislative instruments
relating to the organisation of the Ministry of Economic
Affairs, Finance and Industry supplement the description
of the responsibilities of the departments under his
authority.

(26) Article 4 of Decree No 93-1272 of 1 December 1993 (28)
provides that the directorates-general for industry, infor-
mation technology and postal services (DiGITIP) ‘shall
frame the Government’s policy in the postal and tele-
communications sectors and ensure that it is implement-
ed’; ‘shall ensure, in the postal and telecommunications
sectors (...), that fair competition is observed between
the different economic agents’; and has the task,
in
conjunction with the Treasury directorate, of looking
after the assets held by the State in La Poste: ‘with the
Treasury directorate, it shall frame and implement the
policy conducted with regard to La Poste and the
industrial enterprises within its field of responsibility in
which the State holds a stake’ (29).

(27) Under Article 1 of Decree No 97-710 of 11 June 1997 on the
powers of
the Minister for Economic Affairs, Finance and
Industry, the latter is ‘responsible for (...) — the policy on postal
and telecommunications services’. The Secretary of State for
Industry exercises the powers of the Minister for Economic
Affairs, Finance and Industry in the postal sector only by way of
a delegation of authority issued by the Minister to whom he
reports (see Article 1 of Decree No 2000-306 of 7 April 2000
on the powers delegated to the Secretary of State for Industry).
The departments of DiGITIP are furthermore clearly placed under
the authority of the Minister for Economic Affairs, Finance and
Industry by Article 2(II) of Decree No 97-710.

(28) Decree No 93-1272 of 1 December 1993 on the organisation of
the central administration of the Ministry of Industry, Postal and
Telecommunications Services and External Trade (French Official
Gazette of 2 December 1993), as amended by Decree No 98-
879 of 2 November 1998 (French Official Gazette No 255 of
3 November 1998, p. 16576).

(29) In their memo to the Commission dated 4 February 2000, pp. 5
and 6, the French authorities stress the role played in the Ministry
by the Treasury directorate in the management of the State’s
assets as a shareholder. Article 4 of the Order of 3 November
1998 organising the Treasury directorate into a number of
offices (French Official Gazette No 255 of 3 November 1998,
p. 16595) makes office D5 of the directorate’s holdings depart-
ment responsible for examining ‘issues relating to the financing
of other enterprises in which the State has an interest, in particular
(...) La Poste’ and for ‘relations between those enterprises and
the State as a shareholder, and transactions affecting their
capital’).

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(27) Article 6 of Decree No 93-1272 provides that, within
DiGITIP, the postal and telecommunications services
department ‘shall exercise supervision over La Poste’.
Article 4 of the Order of 2 November 1998 on the
organisation of DiGITIP (30) provides that, within the
postal and telecommunications services department,
the subdirectorate for postal activities ‘shall exercise
supervision over La Poste’. Among other things, that
subdirectorate ‘shall be responsible for economic and
financial monitoring, in particular preparation of the
public service contract, economic analyses, the adap-
tation of analytical accounting, the supply of services,
scales of charges, the quality of service, relations with
consumers and partners in the postal services field (...)’.
Also within the postal services department, the Order of
2 November 1998 provides that the subdirectorate for
legislation and international affairs is to be responsible
for ‘the preparation, follow-up and implementation of
legislation on and the regulation of postal activities’.
These provisions make it possible to identify within the
Ministry the departments responsible for analysing and
examining postal matters. The power to take decisions
on such matters lies with the minister and, by virtue of
a standing delegation of authority, the director-general
for industry,
information technology and postal ser-
vices (31).

regulatory

arrangements

(28) The French authorities have described to the Com-
mission how these
are
implemented in practice. They have stated that, as far as
postal rates are concerned, supervision is exercised
jointly by the postal services department and the direc-
torate-general for competition (32). With regard to more
general aspects of supervision, they have asserted that
the State’s supervisory powers are not entrusted exclus-
ively to the departments of DiGITIP, but that the budget
directorate and the Treasury directorate are also actively
involved. In practice, the supervisory powers conferred
on the minister are therefore exercised within DiGITIP,
the budget directorate, the Treasury directorate and the
directorate-general for competition, consumer affairs
and trading standards. These departments, placed under
the hierarchical authority of a single minister, therefore
exercise supervisory powers while at the same time
performing economic and financial monitoring func-
tions.

(29)

It is therefore clear from the relevant French legislation
that the minister responsible for supervising La Poste is

(30) French Official Gazette No 255 of 3 November 1998, p. 16583.
(31) Decree of 18 November 1998 (French Official Gazette No 269
of 20 November 1998, p. 17524). The head of the postal services
department, who has authority over the abovementioned two
subdirectorates, is authorised to sign on behalf of the minister
for economic affairs, finance and industry any instruments,
orders, decisions or agreements concerning postal matters, but
only in the event of
the director-general being absent or
prevented from attending to this duties (Decree of 19 April 2000
delegating authority to sign documents, French Official Gazette
No 95 of 21 April 2000).

(32) Memo from the French authorities dated 4 February 2000, p. 6,

able to influence its policies by virtue of his economic
and financial monitoring responsibility (33). On the other
hand, the French legislation does not establish any
institutional arrangement ensuring, thanks to a proper
separation of duties, that the tasks of economic and
financial monitoring, on the one hand, and of super-
vision of La Poste, on the other, are carried out
completely independently one of the other.

1.4. The complaint

(30) On 30 June 1998, the Syndicat national des entreprises
de logistique de publicité directe lodged a complaint
against the French State concerning La Poste’s mail
preparation activities. The SNELPD is a trade association
governed by French law which, according to its statutes,
defends the interests of its members, which are mail
preparation firms. The SNELPD represents 62 firms, i.e.
most of those present on this market.

(31) The complainant alleges that La Poste grants discounts
to its direct customers and to its own subsidiaries active
in the area of mail preparation services which are not
generally offered to mail preparation firms. Moreover,
the complaint alleges that La Poste lays down conditions
which, although in principle uniformly applicable, are
disadvantageous to firms competing with La Poste
and its subsidiaries. According to the complainant,
conditions such as the quantities of mail required to
qualify for advantageous scales of charges are fixed at
levels which effectively exclude small mail preparation
firms. The complainant alleges, for example, that the
threshold of 3 million mail items required to qualify for
so-called quantity and presentation (34) contracts with
La Poste is not based on cost savings for La Poste but is
fixed arbitrarily in a manner which limits the number of
eligible mail preparation firms.

(32) Moreover, the complainant claims that La Poste is less
rigorous in verifying compliance with the conditions for
handing over mail by its subsidiaries than by the firms
competing with them. In addition, rules which are not
intrinsically discriminatory are applied in a discriminat-
ory fashin by La Poste. In this context, the complainant
cites numerous examples of cases in which subsidiaries
of La Poste had not complied with the rules on
the quantities to be delivered to post offices, format,
presentation, handover times and places, and content
but in which they nevertheless received discounts.

(33) It will be remembered that, on the French authorities’ own
admission, this supervisory function involves the task of enhanc-
ing the value of the State’s assets and holdings (memo from the
French authorities dated 4 February 2000, p. 6, third paragraph).
(34) One of the technical contracts described above, which allows

fifth paragraph.

bundling.

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(33) According to the complainant, such practices form part
of a strategy aimed at squeezing rivals out of the market
or at least restricting competition. It points to a La Poste
document entitled ‘Challenge Dynatop’ (35), according to
which ‘the development of upstream services ... should
make it possible to prevent competitors from emerging
in those areas and even to promote the development of
our market shares for both franking and strategic
products’. On the more specific matter of desktop
publishing, it also cites a study on the bulk customers of
La Poste conducted shortly before the creation of
Datapost (36). According to that study,
‘a rapid and
massive market penetration should be organised’.
According to the complainant, such documents demon-
strate that La Poste’s objective is to promote its own
subsidiaries and its own activities in the areas of mail
preparation and desktop publishing.

(34)

Finally, the complainant alleges that, given La Poste’s
monopoly on the downstream market, it is able unilat-
erally to impose contract terms on its users and business
partners such as mail preparation firms. According to
the complainant, La Poste unilaterally lays down rules
concerning mail presentation and the handing-over of
postal preparations (types of mailbags to be used,
minimum volume, etc.), which are published in the form
of ‘instructions’ in the Bulletin de La Poste.

(35) According to the complaint, in view of the imbalance in
economic power created by the French legislation, La
Poste is able to impose rules on its competitors and to
regulate their activities even though it does not have any
such statutory power under domestic law. In conclusion,
the complainant considers that the French State has
infringed Community law, and more particularly:

1. Article 86 read in conjunction with Article 82 of
the EC Treaty, by adopting and maintaining in
force legislation which authorises La Poste (a public
operator with a statutory monopoly in respect of
postal services) to determine the conditions of
access by mail preparation firms to its reserved
services while it is itself active in that sector, and by

(35) This booklet addressed to La Poste’s commercial agents was

concerned with the development of Dynapost.

(36) E´ tude qualitative des grands émetteurs de courrier et de leur réaction
face à l’offre de courrier hybride de La Poste, 20 January 1993,
annexed to the SNELPD complaint lodged with the French
Competition Board.

granting La Poste exclusive rights the mere exercise
of which is liable to involve an abuse of a dominant
position;

2. Article 86 read in conjunction with Articles 10 and
82 of the EC Treaty, by not taking action to
eliminate the abuses of a dominant position actually
committed by La Poste on the mail preparation
market.

(36) The complainant called on the Commission to require

the French State:

1.

2.

to guarantee access by mail preparation firms to La
Poste’s network on conditions consistent with the
principle of equality between economic operators,
and

to confer on an authority independant of La Poste
the power to regulate the conditions of access by
mail preparation firms to La Poste’s network and
to confer on that authority the power to apply and
monitor compliance with those rules or, failing
that, to ensure that La Poste is not able to supply
mail preparation services
either directly or
indirectly.

(37) On 25 February 1998, the complainant lodged a parallel
complaint with the French Competition Board (Conseil
de la concurrence) against La Poste, alleging that the latter
breached Article 8 of French Order No 86-1243 of
1 December 1986 on price freedom and competition as
well as Article 82 of the EC Treaty. This complaint
accuses La Poste of cross-subsidising its mail preparation
subsidiaries, of directing and diverting customers, of
offering bundled services and non-market prices, of
applying discriminatory prices and conditions, of charg-
ing predatory prices and of abusively extending its
dominant position. A copy of
this complaint was
annexed to the complaint lodged with the Commission.

(38) By letter of 25 September 1998, the Commission sent
the French authorities a copy of the complaint received
from the SNELPD. By letter of 26 October 1998, it also
sent a copy to La Poste.

1.5. The comments of the French Government and the

undertaking concerned

(39) The French authorities replied to the abovementioned
letter by letter of 26 November 1998. They first
dealt with the applicable regulatory framework. On the
question of relations between La Poste and its supervis-
ory authority, they consider that the principle of the
structural separation of the functions of regulator and
operator has been met since 1 January 1991, the date

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on which La Poste was set up as an autonomous entity.
The French authorities state that no statutory power has
been conferred by the French State on La Poste and
that the complainant cannot invoke La Poste’s service
it has (37). The French
obligations as evidence that
authorities point out that La Poste merely drew up
standard contracts and that the nature of those contracts
does not give them any statutory status (38).

(40)

In its reply of 18 December 1998, La Poste starts
by refuting some of the factual points made in the
complaint (39). It disputes the allegation that it may be
considered to constitute a regulatory authority on the
grounds that its scales of charges (and, in this case, the
discounts granted) are subject
to assessment by its
supervisory authority in those areas in which it has a
monopoly (40). La Poste also points out that the partner-
ship contract between La Poste and the mail preparation
firms in force when the complaint was lodged provided
for a procedure for recognising firms as a ‘top quality
mail preparation firm for advertising, correspondence
and message distribution’. Possessing this status was a
pre-condition for obtaining a technical contract (41). La
Poste states that it did not itself award this status
unilaterally but that this was done by a joint committee
made up of three representatives of the mail preparation
firms and an independent member, and that La Poste’s
subsidiaires also had to be assessed by that committee.
It also claims that the SNELPD has not produced any
documents to substantiate its complaint. Moreover, it
suggests that the complainant has confused the grand of
its legal monopoly with that of a statutory power (42)
and that
this legal monopoly which
the complainant is contesting. It also claims that the
complainant has confused the existence of a dominant
position with the abuse of suche a position and that it
has not in any way demonstrated that abuse has taken
place. Without directly challenging the existence of a
conflict of
interest on its part, as alleged by the
complainant, La Poste nevertheless considers that the
mere fact of its supplying services on the mail prep-
aration market does not in itself constitute an abuse of a
dominant position (43).

is in fact

it

(41) By letter of 27 October 1999, the Commission asked
the French authorities to submit their comments on the
possibility that the French laws and regulations in this
area were incompatible with Community law. In this
regard, the Commission expressed reservations concern-
ing the absence of a truly independent regulatory
authority with powers to monitor
the contractual
relations between La Poste and mail preparation firms.
According to the Commission, the lack of such a body
was liable to be prejudicial to the activities of mail
preparation firms. It took the view that La Poste was
able to determine freely the conditions of access to its
network at the same time as itself being directly or
indirectly active in the mail preparation sector. More-
over, the official authority responsible for monitoring
La Poste was not separate from the authority which
framed its general policy, a fact which cast doubts on its
neutrality.

(42) This letter of

formal notice also indicated that,

if
the Commission’s interpretation proved correct,
the
Commission might adopt a decision under Article 86(3)
of the Treaty. A copy of the letter of formal notice was
sent to La Poste on 30 November 1999.

the points made in the letter of

(43) The French authorities submitted their comments by
letter of 4 February 2000, in which they disputed some
of
formal notice.
They stated that the Commission’s interpretation of the
requirement for independent regulation of La Poste
seemed to go beyond the Community provisions appli-
cable to the postal sector (44). In their reply, the French
authorities also described the role of the minister in
supervising La Poste and the nature of monitoring by
his departments. In this respect, they indicated that, in
their view, the minister’s departments did not play any
role in the day-to-day management of the institution or
in its commercial policy. On the contrary, they asserted
that the minister’s role‘is essentially concerned with
respect for La Poste’s public-service and social tasks, in
particular where the same staff is used’. The French
authorities also provided details of
the consistency
between the public service contract and the role of the
government commissioner who sits on the public
operator’s board. They also explained the procedures for

(37) Point 1.4 of the abovementioned reply from the French auth-

orities.

(38) Point 2.1 of the abovementioned reply from the French auth-

orities.

(39) In particular, the complainant’s statement that its ‘kiosque’ service
is a mail preparation service and the criticism of its Médiapost
subsidiary, which, according to La Poste, develops computer
systems for, inter alia, addressing and targeting of mail but does
not compete with mail preparation firms.

(40) Point I A) of the abovementioned reply from La Poste.
(41) See section 1.1.2.
(42) Page 6 of the abovementioned reply.
(43) Page 8 of the abovementioned letter.

(44) The French authorities claimed that the French legal and insti-
tutional balance was consistent with the spirit of Article 22 of
the Postal Directive (European Parliament and Council Directive
97/67/EC 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). This argument is not
discussed in this Decision since the Commission took the
opportunity to draw the French authorities’ attention to the
possible incompatibility of France’s existing regulatory and
institutional set-up with Article 22 of the Postal Directive by
letter of 3 August 2000 in separate proceedings.

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monitoring La Poste’s price decisions, as defined by La
Poste’s service obligations. The French authorities finally
announced statutory measures ‘to reassure the Com-
mission’,
including the creation of an ombudsman
responsible for the universal postal service and a step-
ping-up of the scrutiny of contracts concluded by La
Poste.

(44) By letter of 16 February 2000, La Poste itself replied to
the Commission’s questions. With its reply, it attached a
study by a consultant on relations between La Poste and
the mail preparation firms (45). This study aimed, inter
alia, to demonstrate that, for economic and financial
reasons, La Poste would not have any objective interest
in placing mail preparation firms in difficulties. More-
over, it traces the history of relations between La Poste
and the firms in the sector, explaining that the apparently
stricter nature of some of the clauses in the contracts
concluded in 1999 as compared to the previous situation
was the result of a desire on La Poste’s part to remedy
the shortcomings of the arrangements established in
1995, which it felt the mail preparation firms had
exploited to their benefit.

2. LEGAL ASSESSMENT

(47) Article 86(1) of the Treaty lays down that, in the case of
public undertakings and undertakings to which Member
States grant special rights, Member States shall neither
enact nor maintain in force any measure contrary to the
rules contained in the Treaty, in particular the rules on
competition. Under that provision, Member States must
not, by laws, regulations or administrative measures, put
public undertakings and undertakings to which they
grant special or exclusive rights in a position which the
said undertakings could not themselves attain by their
own conduct without infringing Article 82 (46). Where
the Commission identifies state measures which are
enacted or maintained in force
in violation of
Article 86(1), read in conjunction with Article 82,
Article 86(3) authorities it
to address appropriate
decisions to Member States.

2.1. The undertaking concerned

(45) On 9 March 2001, the Commission sent a further
letter to the French Government with the dual aim of
establishing what progress had been made with the
measures announced in February 2000 and of passing
on to the French authorities further information supplied
by the complainant at the end of 2000, including with
regard to the financial weakening of mail preparation
firms which had allegedly resulted from changes intro-
duced by La Poste into technical and product contracts.

(48)

La Poste is a public undertaking within the meaning of
Article 86(1) of the Treaty. This is because it is both a
public institution and it has a legal monopoly in respect
of some postal services (as determined by Article L(2)(2)
of the postal and telecommunications services code,
hereinafter referred to as the basic postal service).

(46) The French authorities replied by letter of 17 June 2001.
In this letter, they commented on the information passed
on by the Commission. They also indicated why it had
not been possible to implement the measures planned
at the start of 2000, annexing a draft decree establishing
a postal ombudsman, which they considered would
solve the difficulties highlighted by the Commission.
They also informed the Commission that the postal
and telecommunications services commission had been
consulted regarding this draft on 21 June 2001 and
expressed the hope that the ombudsman would be
established and his team set up before the beginning of
2002.

(45) Analyse des relations contractuelles entre La Poste et les routeurs, report

referred to above.

(49)

La Poste is a public institution of an industrial and
commercial nature established by Law No 90-658 of
9 July 1990 (47). It was accorded the status of indepen-
dent public operator, a sui generis legal category. It has
legal personality and is legally independent of the State.
Nevertheless, it is monitored by the minister responsible
for postal and telecommunications services (48). The
purpose of La Poste is to provide the public domestic
and international mail service. Its capital consists entirely
of State assets previously held by the Postal and Telecom-
munications Administration and transferred to it.

(46) See Case C-18/88 RTT v GB-Inno-BM [1991] ECR I-5941,
point 20, and Case C-320/91 Corbeau [1993] ECR I-2533,
point 12.

(47) Law No 90-568 of 2 July 1990 on the organisation of the public
postal and telecommunications service (French Official Gazette
of 8 July 1990, p. 8069), as last amended by Article 126 of the
1999 Finance Law of 30 December 1998 (French Official Gazette
of 31 December 1998, p. 20050).

(48) Article 1 of the 1990 Law.

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(50) The Law stipulates that La Poste’s general policy is
framed and conducted by its board of directors ‘within
the framework of the guidelines determined by the
Government’ (49). The chairman and most of the mem-
bers of La Poste’s board of directors are appointed by
decree. Moreover, a government commissioner, appoint-
ed to express the Government’s view, sits on the board
of directors in an advisory capacity and is able to have
the board convened. La Poste is thus a public undertaking
within the meaning of Article 86(1) of the Treaty.

(51)

(52)

Some of La Poste’s actions must be approved by the
minister responsible for postal and telecommunications
services and by the minister for economic affairs: these
include the setting of scales of charges for services
provided in the context of the postal monopoly and the
creation of subsidiaries or the acquisition of holdings by
La Poste above a certain threshold.

It is also the purpose of La Poste to provide the public
domestic and international mail service. To that end, it
has a postal monopoly pursuant to Article L(2)(2) of
the postal and telecommunications services code. This
monopoly does not cover mail preparation services.
Article L(2)(2) of the postal and telecommunications
services code, under which La Poste has a monopoly in
respect of the carriage of letters and of packages or
documents not exceeding a weight of 350 grams, thus
confers exclusive rights on La Poste within the meaning
of Article 86(1) of the Treaty.

2.3. The relevant markets

2.3.1.

The mail preparation or ‘upstream’ services market

(54) The market to which the state measures in question
relate is that in mail preparation services in respect of
mail items sent from the territory of France. The mail
preparation services described in section 1.2 above are a
market which is situated upstream of
the services
reserved for La Poste. These services are made up of a
series of operations which, in the process of handling
postal items, take place between the determination of a
content by the originator of the mail and the acceptance
of mail by La Poste in the context of its reserved services.

(55)

In concrete terms, these are operations which take place
upstream of mail clearance, i.e. before the mail enters
that part of the postal network concerned with reserved
operations (50). The collection and sorting activities of
mail preparation firms which take place before mail
items are handed over at the access points to the postal
network do not in any way encroach upon the area of
services reserved for La Poste.

(56)

For the sake of simplicity, these services may be collec-
tively described as ‘upstream’ operations.

2.2. The state measures in question

2.3.2.

The basic postal services market or the market in
‘downstream’ services, reserved for La Poste

(53) The applicable regulatory arrangements have been
described in detail. This Decision is concerned with
Article 25 of the 1990 Law and with Articles 22, 23 and
33 of La Poste’s service obligations, which determine the
extent
to which La Poste is free to determine the
conditions of access to its network and its relations with
its users, and which lay down the rules governing and
limits applicable to intervention by the minister in
monitoring La Poste’s pricing decisions. It is also con-
cerned with Articles 4 and 6 of Decree No 93-1272, as
amended, and Article 4 of the abovementioned Order of
2 November 1998, which indicate the breakdown of
powers with regard to regulation, supervision and
economic and financial monitoring of postal matters
within the ministry of economic affairs, finance and
industry.

(49) Article 10 of the 1990 Law.

(57)

to
La Poste has
Article L(2)(2) of the postal and telecommunications
services code (51). Its monopoly covers ‘domestic and

a postal monopoly pursuant

(50) Under Article 7(1) of European Parliament and Council Directive
97/67/EC 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, ‘clearance’ is the first
stage of those services which may be reserved for the universal
service provider. It is defined in Article 2(4) as ‘the operation of
collecting postal items deposited at access points’. Access points
are defined in Article 2(3) as ‘physical facilities, including letter
boxes provided for the public either on the public highway or at
the premises of the universal service provider, where postal items
may be deposited with the public postal network by customers’.
(51) As amended by Article 19(I) of Law No 99-533 of 25 June 1999
laying down guidelines for sustainable regional development and
amending Law No 95-115 of 4 February 1995 laying down
guidelines for regional development (French Official Gazette of
29 June 1999, p. 9515).

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cross-border services in respect of correspondence items,
whether by accelerated delivery or not, including direct
mail, provided the items weigh less than 350 grams, the
price of which is less than five times the public charge
for an item of correspondence in the first weight step of
the fastest standard category’ and ‘registered-mail ser-
vices the use of which is required by law or regulation’.

State may form a substantial part of the common
market (54).

(61) Consequently, La Poste holds a dominant position within
the meaning of Article 82 of the Treaty (55) by dint of its
statutory monopoly in the area of basic postal services.

(58) This monopoly does not cover the preparation of mail
prior to transport and distribution, i.e. the making up,
collection and sorting of mail handed over to La Poste.
Mail preparation services may therefore be provided by
firms other than La Poste, although, in the vast majority
of cases (52) such provision presupposes access to the
relevant services of the postal monopoly so that the mail
handled by mail preparation firms can be transported
and distributed and the services required by mail origin-
ators can be properly completed.

(59) This basic postal services market, for which La Poste has
a monopoly, must therefore be deemed, in the context
of this Decision, to constitute a related market situated
downstream of the market described.

2.4. Dominant position

(60) According to consistently confirmed case law, an under-
taking holding a statutory monopoly on a substantial
part of the common market may be considered to
occupy a dominant position within the meaning of
Article 82 of the Treaty (53). The territory of a Member

(52) These are of course cases in which the mail items in question fall
below the weight limits and prices laid down by the French rules.
According to the abovementioned GBC study carried out on La
Poste’s behalf, page 3, note 7, ‘20 to 30 % of items made up by
mail preparation firms are not distributed by La Poste’ because
they are not covered by its monopoly.

(53) See,

inter alia,

judgment of 23 April 1991 in Case C-41/90
Höfner v Macrotron [1991] ECR I-1979, point 28; judgment of
18 July 1991 in Case C-260/89 ERT [1991] ECR, I-2925,
point 31; judgment of 19 May 1993 in Case C-320/91 Criminal
proceedings against Paul Corbeau [1993] ECR I-2538, point 9;
judgment of 10 December 1991 in Case C-179/90 Merci
convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA
[1991] ECR I-5889, point 14; judgment of 17 July 1997 in Case
C-242/95 GT-Link A/S v De Danske Statsbaner (DSB) [1997]
ECR I-4453, point 35; judgment of 12 February 1998 in Case
C-163/96 Criminal proceedings against Silvano Raso and others
[1998] ECR, I-533, point 25.

2.5.

Infringements of the competition rules

2.5.1.

The conflict of interest facing La Poste

(62) Article 86(1) of the Treaty lays down that, in the case of
undertakings to which Member States grant special
rights, Member States shall neither enact nor maintain
in force any measure contrary to the rules contained in
the Treaty, in particular to those laid down by Articles 12
and 81 to 89.

(63) The Court of Justice has acknowledged in this respect
that a measure by which a Member State confers on an
undertaking present on a market the power to lay down
rules with which its competitors must comply results in
competition being distorted and the principle of equal
opportunities between different economic operators
being violated (56). The economic power which the
holder of the exclusive right has over the other undertak-
ings active on the upstream markets gives rise to a
conflict of interest. La Poste is led to give preference
directly or indirectly to its own subsidiaries to the
detriment of its competitors on the upstream market.
Such conduct gives rise to abuses within the meaning of
Article 82.

v

Commission

Banden-Industrie-Michelin

(54) Judgment of 9 November 1983 in Case 322/81 NV Nederland-
[1983]
sche
ECR 3461, point 28;
judgment of 5 October 1994 in Case
C-323/93 Société civile agricole du Centre d’insémination de la
Crespelle v Coopérative d’élevage et d’insémination artificielle du
département de la Mayenne [1994] ECR I-5077, point 17;
judgment of 26 November 1998 in Case C-7/97 Oscar Bronner
GmbH & Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag
GmbH & Co. KG and others [1998] ECR I-7791, point 36.
(55) Notice from the Commission on the application of the compe-
tition rules to the postal sector and on the assessment of certain
state measures relating to postal services, OJ C 39, 6.2.1998,
p. 7, point 2.6.

(56) Judgment of 13 December 1991 in Case C-18/88 RTT v GB-
Inno-BM [1991] ECR I-5941, points 24 and 25; judgment of
19 March 1991 in Case C-202/88 French Republic v Commission
[1991] ECR, I-1223, point 51; judgment of 27 October 1993 in
Joined Cases C-46/90 and C-93/91 Procureur du Roi v Lagauche
and others [1993] ECR I-5284, point 44.

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(64) The Court indicated in its judgment of 13 December
1991 in Case C-18/88 GB-Inno-BM (57) that a conflict of
interest constitutes an abuse in itself. In this Case, the
Court was called on to rule on legislation which gave
the dominant telephone operator, which also marketed
telephone equipment, the right to approve its competi-
tors’ telephone equipment. The Court stated that ‘a
system of undistorted competition, as laid down in the
Treaty, can be guaranteed only if equality of opportunity
is secured as between the various economic operators.
To entrust an undertaking which markets terminal
equipment with the task of drawing up the specifications
for such equipment, monitoring their application and
granting type-approval in respect thereof is tantamount
to conferring upon it the power to determine at will
which terminal equipment may be connected to the
public network, and thereby placing that undertaking at
an obvious advantage over its competitors’ (58).

(65)

In reply to RTT’s arguments, the Court also indicated (59)
that the fact that RTT had not in fact committed any
abuses could not be invoked to justify the legislation in
question.

(66) The Court’s reasoning in the GB-Inno-BM judgment is
applicable in this case. La Poste has a monopoly over
the transport of mail and packages not exceeding
350 grams in weight. It is therefore the only available
partner for firms in the mail preparation sector which
have to make use of its reserved services. It is therefore
in a position to impose on mail preparation firms
contractual clauses which contain price conditions and
technical standards unilaterally determined by itself,
despite apparently consulting the partners concerned in
some cases. In particular, technical standards governing
access to special scales of charges are laid down by
‘instructions’ drawn up by La Poste and published in the
Bulletin Officiel de La Poste.

(67)

La Poste referred (60) to the bipartite nature of the
procedure for awarding the status of ‘top quality mail
preparation firm for advertising, correspondence and
message distribution’, which since 1994 was a condition
for access to La Poste’s technical contracts, as evidence
that
in practice able to determine the
conditions of access to its network arbitrarily. The
Commission considers, however, that this status-recog-

it was not

nition procedure does not resolve the conflict of interest
identified in this case. This is because the abuse resides
not in any refusal of access but in the determination of
the financial and technical conditions offered to mail
preparation firms (61).

(68)

For their part, the French authorities maintain that La
Poste is monitored by the State, a fact which reduces its
freedom in the area of contracts and prices. On the
question of the procedures for monitoring the contracts,
technical conditions and scales of charges established by
the postal monopoly holder, they point out that some
of La Poste’s pricing decisions are required to be reviewed
and approved by the minister.

(69) The Commission considers, however, that La Poste’s
contractual freedom is, in reality, far from being com-
pletely contained by any ex ante or ex post scrutiny by
the minister. Thus, as far as the services and scales of
charges covered by this Decision are concerned, the
possible extent of intervention by the minister is in
fact restricted and the intensity of monitoring varies
considerably. Given the provisions with which this
Decision is concerned and the explanations provided
by the French authorities (62) three situations can be
identified with regard to the contracts and scales of
charges of concern to mail preparation firms, depending
on whether they are regarded as users or suppliers of La
Poste’s network. Firstly, the ‘product contract’ rates are
approved by the minister if they relate to services
reserved for the postal monopoly (e.g. the Postimpact
rates) (63). Secondly, the contracts for which mail prep-
aration firms are regarded as suppliers, in particular the
‘technical contracts’, remain outside the scope of any
scrutiny by the minister since they relate to services
falling outside the postal monopoly. Thirdly, the stan-
dards and technical conditions, and more generally the
non-price components of La Poste’s contracts, which are

(57) [1991] ECR I-5941, point 25.
(58) Points 25 and 26.
(59) Points 23 and 24.
(60) Letter of 18 December 1998, cited in section 1.5.

(61) It should also be pointed out that this procedure has not been in

force since 1999.

(62) See point 1.3.1.
(63) In practice, scrutiny of the Postimpact rates seems to relate
essentially to the absolute level of charges and not to the
relevance of the volume thresholds giving access to the levels in
this scale of charges.

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just as important to the operatin conditions of mail
preparation firms, are not subject
to any scrutiny
whether or not the services in question fall within the
scope of operations reserved for La Poste (64).

(70) The Commission takes the view that where the French
State authorises only one undertaking to provide
reserved postal services and allows that undertaking to
determine its technical and financial relations with
commercial partners reliant on services falling within
the scope of its reserved operations, without exhaustive
scrutiny of those relations, that undertaking is faced
with a conflict of interest by dint of the fact that it
becomes the sole partner of its own competitors on
markets upstream of its reserved operations. By virtue
of the imbalance in economic power created by the
relevant French rules, La Poste has the de facto power to
impose rules on its competitors and to regulate their
activities even if it does not have any statutory power
under domestic law (65). Moreover, La Poste is also
present on the mail preparation market both itself and
via subsidiaries. Such a presence on the mail preparation
market creates a conflict of interest for La Poste since it
is led as a result of this situation to give preference
directly or indirectly to its own subsidiaries and encour-
aged to abuse its dominant position.

(71)

In their reply to the Commission’s letter of formal notice,
the French authorities did not dispute the Commission’s
analysis concerning the existence of a conflict of interest
facing La Poste.
they announced measures
designed to meet the concerns expressed by the Com-
mission in this regard.

Indeed,

(72) Thus, by letter of 17 July 2001, the French authorities
sent the Commission, for information purposes, a copy
of a draft decree (66) creating an ombudsman for the
universal postal service (hereinafter referred to as the
‘ombudsman’), which they promised to ‘establish quick-
ly’. Although this draft had not become law by the date
on which this Decision was adopted, the nature of the
solutions planned by the French authorities should be
examined.

(64) The ‘catalogue’ rates, which also affect the operations of SNELPD
members, are also submitted to the minister for information
purposes only since they relate to mail items which are not
correspondence items covered by La Poste’s exclusive rights.
However, this Decision is not concerned with the procedures for
monitoring these rates since La Poste is not the only partner
available to mail preparation firms for the transport and distri-
bution of such mail items.

(65) See recital 23.
(66) This draft itself follows on from a preliminary draft decree
amending the service obligations of La Poste, a copy of which
had been sent in February 2001 and which was not developed
further.

(73) According to the French authorities, the creation of the
ombudsman will result in more thorough scrutiny of La
Poste in the area covered by this Decision. The decree,
they argue, will explicitly provide for the possibility of
intervention by the ombudsman in the initial drafting,
subsequent amendment and application of standard
contracts tying La Poste to organisations representing
homogenous business categories, at the request either of
one of the parties or of the minister. The ombudsman
will give views not only on aspects relating strictly to
the scales of charges, but also on ‘the appropriateness
and proportionality of the technical constraints’ con-
tained in the contracts. Following a hearings procedure,
the ombudsman will address a reasoned opinion to the
minister and the parties concerned, which he will have
the power to publish.

(74) The draft decree would represent significant progress
compared with the case at
issue and the present
legislative situation. First, it would give mail preparation
the financial and
firms the right to appeal against
technical conditions set by La Poste. Second, it would
allow for such an appeal
to take place after the
implementation of the contracts concerned, and thus for
ex post scrutiny of the contracts and their application,
while, under the present rules, intervention by a public
authority in relations between La Poste and the mail
preparation firms is confined to ex ante approval. Third,
the decree would explicitly subject non-price elements
of the contracts to the monitoring process.

(75) However, in the draft submitted to the Commission, the
decree instituting an ombudsman for the universal postal
service only partly meets the concerns set out above.
The investigation of a case by the ombudsman is of real
interest to the requesting party only if it is followed by a
decision issued by a body that is distinct from the parties.
However, under the draft, no authority independent of
La Poste is given the power to issue decisions or orders,
beyond the limited powers (67) currently conferred on
the official monitoring authority by the existing rules. In

(67) These are powers of ex ante scrutiny of price aspects of La Poste’s
commercial offers (especially standard contracts) for access to its
reserved services. The draft presented to the Commission does
not change the current profile of commercial offers that are
subject to scrutiny. Although it explicitly treats contracts nego-
tiated with homogenous business categories as standard con-
tracts, it does not change the current rule under which only
standard contracts relating to reserved services are subject to ex
ante scrutiny.

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practice, therefore, a combined reading of the provisions
of the draft decree on the ombudsman and the existing
rules would identify three possible situations, on which
the effectivenes of the right to refer cases accorded to La
Poste’s commercial partners and the extent of
the
scrutiny carried out would depend:

arise between La Poste and the mail preparation firms in
drawing up or amending the technical contracts (72),
even if the case were referred to the ombudsman, there
would be no guarantee that
the procedure would
conclude successfully and a final decision would be
taken by a body independent of La Poste (73).

(1)

the case would be referred to the ombudsman prior
to ministerial approval, and would cover services
within the scope of La Poste’s reserved area (68);

(76)

In these circumstances, and given the shortcomings of
the planned decree as described in point 75, the proposal
by the French authorities would not suffice to remove
the risk of the public operator’s conflict of interest in the
case at issue.

(2)

the case would be referred to the ombudsman prior
to the entry into force of the contract concerned,
but would cover services that were not part of La
Poste’s reserved activities (69); or

(3)

the case would be referred to the ombudsman after
the entry into force of the contract concerned, and
could cover reserved or non-reserved services (70).

(77)

In the first case, as regards the scales of charges and
contracts submitted to the minister for approval, the
ombudsman decree would represent progress compared
with the existing situation, as it would allow a requesting
party to refer the contract to the ombudsman and a
decision to be taken at the end of the procedure. In the
second and third cases, on the other hand, while the
mail preparation firms would have the right to appeal to
the ombudsman, the procedure would end with the
ombudsman’s opinion, with no power accorded to an
official authority to resolve a dispute between La Poste
and the mail preparation firms on services outside the
scope of La Poste’s exclusive rights or provided after
approval has been given (71). As a result, should a dispute

(68) In this situation, the mail preparation firms constitute users of

the postal network.

(69) In this situation, the mail preparation firms constitute suppliers

of La Poste.

(70) This situation could cover cases where mail preparation firms
constitue suppliers of La Poste or cases where they constitute
users of its network.

(71) In this respect, the draft decree presented in July 2001 does not
go as far as was announced by the French authorities in their
reply of 4 February 2000. At the time, the French authorities
expressly stated that, under the future decree, standard contracts
(whatever their subject matter) ‘would be subject to approval by
the ministery’; they also included technical contracts in the
concept of ‘standard contract’
(memo of 4 February 2000,
point 2.2.1).

2.5.2.

Lack of neutrality in ministerial supervision of La
Poste

Legislation that does not provide for an independent
monitoring authority with sufficient guarantees of neu-
trality in relation to a public undertaking placed in a
situation of a conflict of interest infringes Article 86(1)
read in conjunction with Article 82 of the Treaty. More
specifically, the absence of an authority providing such
guarantees leads to infringements of Article 82 of the
Treaty where the State does not effectively monitor how
the incumbent operator with an exclusive right conducts
itself on the upstream markets that are not covered by
the exclusive right and on which the operator with the
exclusive right is itself present.

(78) Where a public undertaking is faced with a risk of a
conflict of interest, it is the responsibility of the State to
ensure that an effective monitoring system is in place
such as will re-establish equal opportunities between
operators. This is the conclusion of the Court’s reasoning
‘the maintenance of
in its judgment in GB-Inno-BM:
effective competition and the guaranteering of trans-
parency require that the drawing up of technical specifi-
cations, the monitoring of their application, and the
granting of type-approval must be carried out by a body
which is independent of public or private undertakings
offering competing goods or services’ (74).

(72) These cover preparation and sorting services that fall partly
under La Poste’s universal service, but are in no way part of its
reserved area.

(73) For product contracts falling under the universal service (such as
Postimpact) on the other hand, the arrangements under the draft
decree do ensure that the ombudsman’s opinion is followed by a
decision by the supervisory authority.

(74) See also the judgment of 27 October 1993 in Case C-69/91
Criminal proceedings against Decoster [1993] ECR I-5335,
point 19.

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(79) The Commission has confirmed the application of this
principle to the postal sector. It has concluded that
Member States must entrust the monitoring of postal
service operators to an authority which is independent
of the public operator or operator granted special or
exclusive rights and of any entity linked to it.
In
particular, it has pointed out that Member States cannot
entrust such monitoring to the postal operator itself ‘or
to a body which is related (legally, administratively and
structurally) to that operator’ (75).

(80)

(81)

that

In its letter of 27 October 1999, the Commission
pointed out
the monitoring function and the
function of directing the policy of La Poste as a public
undertaking were performed within the same ministry.
It concluded that a conflict of interest existed within that
ministry (76).

In their reply of 7 February 2000, the French authorities
clarified a number of points regarding the nature of the
links between the minister and La Poste, and the content
of the supervisory and price monitoring function. In
their view, the supervisory role and the public service
contract imply the setting of general objectives for the
public operator, which do not entail the ministry’s
intervening in La Poste’s commercial policy, let alone its
taking any kind of position as regards the mail prep-
aration business. The French authorities end their expla-
nation by concluding that French legislation ensures
appropriate separation of the regulatory and operational
functions of the postal service. The minister and the
in the view of
ministerial departments,
the French
authorities, are legally,
functionally and structurally
separate from La Poste.

(82) The Commission takes note of these explanations but
cannot wholly endorse the analysis. However real the
degree of separation referred to by the French authorities,
it does not, under the current rules, guarantee indisput-
able neutrality in the monitoring of relations between
the public operator and mail preparation firms. The
French authorities themselves point out that ‘the budget
directorate and the Treasury directorate responsible for
managing the State’s assets are actively involved’
in
setting La Poste’s objectives (77). The same official auth-
ority responsible for monitoring La Poste is therefore

also clearly in charge of ensuring its profitability and
financial soundness. The fact that these powers are
divided between various departments of a service
answerable to the same minister is by no means sufficient
proof of the independence of the scrutiny carried out.
Furthermore, within DiGITIP itself, the postal services
department is responsible both for regulation and for
economic and financial supervision (78). The minister’s
supervision of La Poste, and in particular the scrutiny of
its contracts and scales of charges,
is likely to be
influenced by considerations relating to the State’s
financial interest unrelated to the concerns of equity that
should prevail in the monitoring of relations between La
Poste and its users and commercial partners.
is
therefore clear that, under current French legislation, the
minister cannot be considered to constitute an authority
providing sufficient guarantees of independence of La
Poste for its monitoring to be effective.

It

(83) Given the existing legislative framework,

the Com-
mission finds that the separation between the economic
and financial supervision function and the regulatory
function as described by the French authorities is not
such as to provide sufficient guarantees of neutrality and
independence in the monitoring of relations between La
Poste and mail preparation firms. In these circumstances,
the public authority, itself placed in a situation of conflict
of interest, is not in a position to carry out effective
scrutiny of La Poste in such a way as to counteract the
conflict of interest previously identified within the public
postal operator.

(84)

In their letter of 17 July 2001, the French authorities
assert that, in the near future, the introduction of an
ombudsman alongside the minister will resolve the issue
of the neutrality of scrutiny. They argue that the decree
lay down a number of solutions to ensure the
will
ombudsman’s independence. Appointed by decree on
the proposal of the minister from a list of three put
forward by the chair of the postal and telecommuni-
cations services commission, the ombudsman will be
appointed irrevocably for a non-renewable term of five
years and will have his own resources and budgetary
appropriations, without coming under the authority of

(75) Point 6.4 of the notice cited in footnote 55.
(76) See Commission letter of 27 October 1999, p. 9.
(77) Memo from the French authorities dated 4 February 2000, p. 6,
third paragraph. In the third paragraph on p. 5 of the same
memo,
it is also stated that ‘the budget directorate and the
Treasury directorate responsible for managing the State’s assets
are also involved, each where it is concerned and within the
limits of its mandate’.

(78) In points 16, 17 and 22 of Decoster, cited above, the Court
found that the different directorates of a single authority could
not be regarded as independent of each other for the purposes
of Articles 82 and 86 of the Treaty. It is all the more true that
the mixing within the same directorates under the authority of
one and the same minister of monitoring and state asset
management tasks prevents these tasks being performed indepen-
dently of one another.

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the ministry’s departments. While the minister will retain
decision-making power (especially the power to give
prior approval), with the ombudsman’s role being
consultative only, the latter’s opinions will give reasons
and be made public, making it difficult for the minister
to deviate from the decision recommended by the
ombudsman without giving objective reasons for doing
so.

(85) The Commission takes note of the existence of this draft
decree, which, by assigning an ombudsman to work
alongside the minister and giving him certain investiga-
tive powers, resources and statutory guarantees of
independence, reflects a concern to introduce a number
of elements of independence, transparency and effective-
ness into the exercise of scrutiny by the supervisory
authority in the area covered by the present Decision. In
this connection, the power to publish reasoned opinions
may take on particular importance in the resolution of
disputes and difficulties such as those cited by the
complainant in the case at issue. In relation to the
specific problem that is the subject of the complaint,
this power is capable of counteracting the bias that
might influence a discretionary decision by the minister.

(86) However, solving the conflict of interest within the
authority responsible for monitoring and regulating
the postal sector presupposes the ombudsman’s total
independence of the public postal operator.
In this
connection, the Commission notes that, in its present
form, the draft decree does not provide for sufficient
distance between the ombudsman, together with his
colleagues, and the public postal operator (79). In these
circumstances, establishing the ombudsman could prove
to be inadequate as a means of ensuring the satisfactory
independence of the supervisory authority, despite the
powers conferred on him by the planned decree.

(79) According to point 1.2.1 of the French authorities’ memo of
17 July 2001, ‘the ombudsman and his immediate colleagues
fall expressly under the legislative and regulatory provisions
restricting and submitting to a check for regularity their possibilit-
ies for employment in private firms at the end of their terms of
office’ (emphasis added). The French authorities are probably
referring to Decree No 95-168 of 17 February 1995 on the
carrying on of private activities by civil servants who have been
released from active service or have definitively ceased their
duties (French Official Gazette No 43 of 19 February 1995,
p. 2717). However, this decree does not cover activities in a
public undertaking. No provision seems to be made as regards
the possibility of the ombudsman or his colleagues joining La
Poste at the end of their terms of office, which could affect their
neutrality in the performance of their tasks.

2.5.3.

Possible effect of the conflict of interest on the conduct
of La Poste

(87) The conflict of interest itself constitutes an abuse. It is
not necessary to wait for the undertaking concerned
actually to commit an abuse before finding that there is
an infringement. It is sufficient that the undertaking is
placed by the legislation itself in a situation that leads it
to commit an abuse as soon as it is in its interest to do
so. The creation and maintenance of a dual conflict of
interest as described above must be considered in itself
contrary to Article 86(1) read in conjunction with
Article 82 of the Treaty, even in the absence of evident
abuses (80).

(88) However, there is some value in entering into further
detail as to the nature of the conduct contrary to
Article 82 in which La Poste could engage in or might
have been tempted to engage in as a result of the dual
conflict of interest described above.

(89)

First, La Poste has the power to impose on its mail
preparation partners technical and financial conditions
unrelated to the relevant economic reference point. La
Poste could set technical and financial conditions that,
while apparently applicable equally, would in fact put
competitors of La Poste and its subsidiaries at a disadvan-
tage. There is nothing to show, for example, that the
volume thresholds set by La Poste for access to certain
types of technical contract, or the remuneration ‘per
thousand’ granted to mail preparation firms for prep-
aration and sorting work, are based on indisputable
economic and technical data (saving on processing for
La Poste, economies of scale, value added, etc.). On the
contrary, there is a risk that La Poste is using its position
as an unavoidable partner to conduct the negotiations
leading to the conclusion of these contracts as it chooses.
It is therefore possible that the terms set by La Poste,
while apparently non-discriminatory, result in difficulties
for mail preparation competitors or certain categories of
mail preparation competitor.

(90) Certain technical and price decisions taken by La Poste
in July 1999 illustrate the public operator’s room for
manoeuvre and its potential effects on the conditions in
which mail preparation firms operate. Without needing
to comment on the appropriateness or equity of the
thresholds set by La Poste, or on their justification, the

(80) Judgment of 13 December 1991 in Case C-18/88 RTT v GB-
Inno-BM [1991] ECR I-5941, points 23 and 24; Case C-163/96
Criminal proceedings against Silvano Raso and others [1998]
ECR I-533, points 27 and 31.

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Commission confines itself to observing, for example,
that the sudden and significant (81) increase in the annual
volume of envelopes delivered to post offices required
of mail preparers for access to the preparation contract
excluded from this type of contract (82) around half (83)
of the mail preparation firms that had benefited from it
previously, thus dramatically changing the conditions in
which they operated. However, this decision had no
effect on the conditions of operation of the La Poste
subsidiaries concerned, which, for their part, remained
in any event above the critical threshold, given their size
and volume of activity.

(91)

Likewise, as regards the remuneration ‘per thousand’
granted to mail preparers for certain preparation and
sorting work, La Poste amended the applicable terms in
July 1999, leading to a 16 % reduction in the payments
made to mail preparation firms. Admittedly,
this
reduction was ultimately compensated for by La Poste
at the end of the year, by way of an ‘exceptional
bonus’ paid to the mail preparation firms. However,
the initiative of the reduction in July 1999 and the
compensation at the end of the year demonstrates the
scope of the public operator’s discretion to determine
the financial terms of access to its network. Remuner-
ation ‘per thousand’ is far from neutral as regards the
economic equilibrium of mail preparation firms, whose
margins are traditionally small. According to the com-
plainant, this remuneration accounts for some 9 % of
their turnover. These means that (taking as an example
what was observed in 1999) by varying this remuner-
ation by 16 %, La Poste can decide to influence 1,5 % of
the turnover of mail preparation firms. This figure must
be compared with the conclusions of the study carried
out by GBC on behalf of La Poste, according to which
the net margins of mail preparation firms vary between
0 % and 2 % (84). Therefore, mere variation in the
conditions of access to the network by La Poste can
mean that mail preparation firms see their profitability
fall considerably. They thus find themselves in a position

(81) From 6 million to 30 million.
(82) This type of contract is considered by mail preparation firms to
be the most advantageous of the technical contracts, as it allows
the bundling of mailshots.

(83) There were only 27 preparation contracts at the end of 1999

compared with 58 prior to the decisions described.

(84) Routeurs ou prestataires de services — Synthèse de l’étude réalisée par
le Cabinet GBC à la demande de La Poste, June 2000. On p. 2, we
read:
‘If we exclude from the financial analysis mail order
preparers, which come out best, operating margins in other mail
preparation segments fluctuated in 1998 between 2 % and 4 %,
and net margins between 0 % and 2 %’.

of particular structural vulnerability vis-à-vis the public
operator, while neither La Poste nor its mail preparation
subsidiaries, which have other sources of revenue and
support from a major group (85), find themselves in a
similar situation of financial dependence.

(92)

Second, in applying the technical standards referred to
previously, La Poste may also be tempted to be less strict
with its own subsidiaries and with major originators of
mail with which it deals directly than with competing
mail preparers. La Poste could thus apply in a discrimi-
natory fashion standards which themselves comprise no
discriminatory element. The complainant gave examples
of cases where subsidiaries of La Poste had not complied
with the rules on quantity, format, presentation, and
times and places of delivery, or with rules on the nature
of the mail, but had none the less benefited from
contractual discounts and access to preferential rates.
This situation had also been identified by La Poste’s
general management (86).

(93) Whatever and whoever is at the origin of La Poste’s
alleged conduct (87), the simple fact that such conduct
exists or even is likely to exist is evidence of the
shortcomings in the scrutiny exercised over La Poste’s
setting of its technical standards and scales of charges,
and of their application.

2.6. Applicability of Article 86(2)

(94) Under Article 86(2) of the Treaty, undertakings entrusted
with the operation of services of general economic
interest are subject to the competition rules laid down
in the Treaty, insofar as the application of such rules
does not obstruct the performance, in law or in fact, of
the particular tasks assigned to them.

(85) Datapost’s large deficit over a number of successive years is

evidence of the reality of this advantage.

(86) A letter to department managers from La Poste’s director of mail
dated 17 September 1999 is evidence of the awareness of these
problems: ‘The various audits conducted recently on conditions
of operation and billing for services related to the mail service
(collection and delivery, franking on behalf of third parties,
enveloping, addressing) clearly identified inconsistencies between
national and local instructions, resulting in a certain lack of
uniformity of operating arrangements or even pricing. This
situation means that La Poste is running serious risks with regard
to competition law (...)’.

(87) Certain forms of behaviour described by the SNELPD in its 1998
complaint, in particular the discrimination practised, seem to
have originated in initiatives by certain department managers at
La Poste with a view to optimising volumes. The abovementioned
letter of 17 September 1999 was written precisely to discipline
such practices.

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(95) The French authorities did not rely on Article 86(2). In
any event,
it would not be possible to demonstrate
that removing conflicts of interest or eliminating the
potentially discriminatory practices of La Poste which
are their corollary would be likely to obstruct
the
performance of the services of general economic interest
entrusted to the public postal operator.

stances, the French Government has allowed a situation
to persist in which La Poste finds itself led to commit
abuses in the form of discrimination against its mail
preparation competitors,

HAS ADOPTED THIS DECISION:

2.7. Effect on trade between Member States

Article 1

(96) The state measures set out above are likely to affect
trade between Member States. Mail entrusted to mail
preparation firms may originate from companies based
in other Member States of the Community, whose cross-
border activities may thus be affected by the distortion
of competition, as could the business of mail preparation
firms based in Member States other than France which
might want to establish themselves in France or provide
their services there (88).

Article 25 of Law No 90-568 of 2 July 1990 and Articles 22,
23 and 33 of La Poste’s service obligations, together with
Articles 4 and 6 of Decree No 93-1272 of 1 December 1993
as amended and the Order of 2 November 1998 on the
organisation of DiGITIP, are contrary to Article 86(1), read in
conjunction with Article 82 of the EC Treaty, to the extent
that they allow only limited scrutiny of the non-discriminatory
nature of the scales of charges and technical conditions applied
by La Poste to mail preparation firms, and to the extent that
this partial scrutiny is furthemore exercised by a public
authority that is insufficiently independent and neutral
in
relation to La Poste.

(97)

In conclusion, La Poste has a monopoly on the basic
postal service and thus constitutes an unavoidable
partner for mail preparation firms, which are active on
a market upstream of the basic postal service on which
La Poste and some of its subsidiaries are also present.
French legislation gives La Poste the power the set the
scales of charges and technical conditions applied to
mail preparation firms for access to its reserved services.
These
im-
plementing them are subject only to partial scrutiny,
accompanied by limited decision-making powers. In
addition, the public authority responsible for this scru-
tiny does not offer sufficient guarantees of independence
and neutrality in relation to La Poste. In these circum-

conditions and the arrangements

for

Article 2

France shall inform the Commission, within two months of
being notified of this Decision, of the measures it has taken to
put an end to the infringements identified in Article 1.

Article 3

This decision is addressed to the French Republic.

Done at Brussels, 23 October 2001.

(88) See judgment of 1 February 1978 in Case 19/77 Miller v
Commission [1978] ECR 131, point 15, and paragraph 48 of
the opinion of Advocate General Jacobs prior to the judgment of
23 April 1991 in Case C-41/90 Höfner v Macrotron [1991]
ECR I-1979.

For the Commission

Mario MONTI

Member of the Commission