2007/169/EC: Commission Decision of 16 March 2007 establishing that Article 30(1) of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors applies to certain courier and parcel services in Denmark (notified under document number C(2007) 840) (Text with EEA relevance )
Date: 2007-03-16
Institutions: European Commission
Subjects: Denmark, award of contract, carriage of goods, competition, market access, postal service

L 78/28

EN

Official Journal of the European Union

17.3.2007

COMMISSION

COMMISSION DECISION

of 16 March 2007

establishing that Article 30(1) of Directive 2004/17/EC of the European Parliament and of the
Council coordinating the procurement procedures of entities operating in the water, energy,
transport and postal services sectors applies to certain courier and parcel services in Denmark

(notified under document number C(2007) 840)

(Only the Danish text is authentic)

(Text with EEA relevance)

(2007/169/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

unrestricted if the Member State has implemented and
applied the relevant Community legislation opening a
given sector or a part of it.

Having regard to the Treaty
Community,

establishing the European

Having regard to Directive 2004/17/EC of
the European
Parliament and of the Council of 31 March 2004 coordinating
the procurement procedures of entities operating in the water,
energy, transport and postal services sectors (1), and in particular
Article 30(4) and (6) thereof,

Having regard to the request submitted by the Kingdom of
Denmark by e-mail of 20 November 2006, and to the addi-
tional information requested by Commission staff by e-mail of
8 December 2006 and submitted by the Danish authorities by
e-mail of 22 December 2006,

Having regard to the conclusions of the independent national
authority, Konkurrencestyrelsen
(the Danish Competition
Authority), that the conditions for the applicability of Article
30(1) of Directive 2004/17/EC would be met,

Whereas:

(1)

Article 30 of Directive 2004/17/EC provides
that
contracts intended to enable the performance of one of
the activities to which the Directive applies shall not be
subject to the Directive if, in the Member State in which
it is carried out, the activity is directly exposed to compe-
tition on markets to which access is not restricted. Direct
exposure to competition is assessed on the basis of
objective criteria, taking account of the specific charac-
teristics of the sector concerned. Access is deemed to be

(2)

(3)

(4)

legislation is

in the case of postal

listed in Annex XI of Directive
This
2004/17/EC, which,
services,
refers to Directive 97/67/EC of the European Parliament
and of the Council of 15 December 1997 on common
rules for the development of
the internal market of
Community postal services and the improvement of
quality of service (2).

Under Article 62(2) of Directive 2004/17/EC, Title III of
that Directive setting out
the rules on service design
contests does not apply to contests organised for the
in the Member State concerned, of an activity
pursuit,
the
to which the applicability of Article 30(1) of
a Commission
Directive has been established by
decision or has been deemed applicable under
the
second or third subparagraph of Article 30(4) or the
fourth subparagraph of Article 30(5).

certain

courier

The request submitted by the Kingdom of Denmark
concerns
in
Denmark. More precisely, the services concerned can be
described as Business to Business (BtB) parcel services,
domestic and international;
light goods/pallet goods
services, domestic and international; as well as courier

services

parcel

and

(1) OJ L 134, 30.4.2004, p. 1. Directive as last amended by Council

(2) OJ L 15, 21.1.1998, p. 14. Directive last amended by Regulation

Directive 2006/97/EC (OJ L 363, 20.12.2006, p. 107).

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

17.3.2007

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Official Journal of the European Union

L 78/29

and express services, domestic and international. In line
with previous Commission decisions (1), a distinction can
be made between the above services and therefore each
of
these services can be considered to constitute a
separate market. The Danish request thus concerns six
to Article 6 of Directive
different markets. Pursuant
2004/17/EC,
such as courier and
services,
express services, are covered by the Directive to the
extent that such services are provided by entities which
also provide postal services within the meaning of its
Article 6(2)(b).

logistics

(8)

(9)

(5)

(6)

(7)

As a public enterprise within the meaning of Article
2(1)(b) of Directive 2004/17/EC exercising several of
the activities mentioned in Article 6 of that Directive,
Post Danmark, on whose behalf the request has been
introduced,
is a contracting entity for the purposes of
Directive 2004/17/EC. According to the available infor-
mation, it would seem to be the sole contracting entity
operating in the markets concerned by the present
decision, the other operators being private companies
not operating on the basis of special or exclusive rights.

These assessments, and any other contained in this
Decision, are made solely for the purposes of Directive
2004/17/EC and are without prejudice to the application
of the rules on competition.

implemented

Denmark has
applied Directive
97/67/EC. Consequently, and in accordance with the
to the
access
subparagraph of Article 30(3),
first
market should be deemed not to be restricted.

and

(1) Commission Decision of 2 December 1991 declaring a concen-
(Case No
tration to be compatible with the common market
IV/M.102 — TNT/CANADA POST, DBP POSTDIENST, LA POSTE,
PTT POST & SWEDEN POST) according to Council Regulation (EEC)
No 4064/89: points 19 et
seq.; Commission Decision of 8
November 1996 declaring a concentration to be compatible with
(Case No IV/M.843 — PTT Post/TNT/GD
the common market
Express Worldwide) according to Council Regulation (EEC) No
4064/89, points 10 et seq.; Commission Decision of 1 July 1999
declaring a concentration to be compatible with the common
(Case No IV/M.1513 — DEUTSCHE POST/DANZAS/
market
NEDLLOYD) according to Council Regulation (EEC) No 4064/89
points 8 et seq.; Commission Decision of 20 March 2001 relating
to a proceeding under Article 82 of the EC Treaty (Case COMP/35
141 — Deutsche Post AG): point 26 et seq.; Commission Decision
of 21 October 2002 declaring a concentration to be compatible
(Case No IV/M.2908 — DEUTSCHE
with the common market
POST/DHL
to Council Regulation (EEC) No
according
(II))
4064/89: point 10 et seq.

Direct exposure to competition should be evaluated on
the basis of various indicators, none of which are, per se,
decisive.

One parameter to take into account is the market shares
of the main players on a given market and another is the
degree of concentration. Whether measured in terms of
turnover or in terms of number of dispatches, Post
Danmark’s market share on any of
the six markets
concerned varies, according to the information given,
between less than 1 % (2) up to 35-40 % (3), which are
acceptable levels, considering also the degree of concen-
tration on these markets. Post Danmark is the largest
single operator on just two of these markets, respectively
that
services and the one for
domestic courier and express services (4). On both of
these markets,
share of Post
the combined market
Danmark’s two biggest competitors is comparable to or
greater than that of Post Danmark (5). On those markets
on which Post Danmark does not have the largest market
its two biggest
share, the aggregate market shares of
than Post
competitors
Danmark’s market share. These factors should therefore
be taken as an indication of direct exposure to compe-
tition.

for domestic parcel

times greater (6)

several

are

(10)

In view of the abovementioned indicators, the condition
of direct exposure to competition laid down in Article
30(1) of Directive 2004/17/EC should be considered to
be met in respect of the parcel and courier services in
Denmark which are specified in Recital 4 (7). As noted
above in recital 7, the further condition of free access to
the activity must be deemed to be met. Consequently,
Directive 2004/17/EC should not apply when contracting
entities award contracts intended to enable the parcel and
courier services concerned by this request to be carried
out in Denmark nor when they organise design contests
for the pursuit of such an activity there.

(2) On the market

for

international courier and express

services

in 2005.
(3) 2005 market
Denmark).

for domestic parcel

services BtB (from and to

(4) In 2005, Post Danmark’s market share in terms of turnover was
16-19 % for domestic courier and express services and 35-40 %
in terms of turnover for domestic BtB parcel services.

(5) In 2005, the aggregate market shares of the two largest competitors
on the market for domestic parcel services BtB amounted to 36-
44 % in terms of turnover, whereas their combined market share,
also in terms of turnover, was 23-29 % on the market for domestic
courier and express services.

(6) E.g. on the market for domestic light goods/pallet goods, where Post
Danmark has a market share in terms of turnover of 3-5 %, whereas
the aggregate share of the two biggest operators amount to 69-83 %
in terms of turnover. The difference is even more marked on the
market for international courier and express services, where Post
Danmark’s share in terms of turnover was up to 1 % in 2005,
when the aggregate share of
the two largest actors on that
market, also in terms of turnover, amounted to 65-80 %.

(7) The services concerned are described as Business to Business (BtB)
parcel services, domestic and international; light goods/pallet goods,
domestic and international; as well as courier and express services,
domestic and international.

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Official Journal of the European Union

17.3.2007

(11)

(12)

This Decision is based on the legal and factual situation
as of November and December 2006 as it appears from
the information submitted by the Kingdom of Denmark.
It may be revised, should significant changes in the legal
or factual situation mean that the conditions for the
applicability of Article 30(1) of Directive 2004/17/EC
are no longer met.

The measures provided for
accordance with
Committee for Public Contracts,

the

opinion

in this Decision are in
the Advisory

of

(e) Domestic courier and express services; and

(f)

International courier and express services.

Article 2

This Decision is based on the legal and factual situation as of
November and December 2006 as it appears from the infor-
It may be
mation submitted by the Kingdom of Denmark.
factual
revised,
situation mean that
the conditions for the applicability of
Article 30(1) of Directive 2004/17/EC are no longer met.

should significant changes

in the legal or

HAS ADOPTED THIS DECISION:

Article 1

Directive 2004/17/EC shall not apply to contracts awarded by
contracting entities and intended to enable them to carry out
the following parcel and courier services in Denmark:

(a) Domestic Business to Business (BtB) parcel services;

(b) International Business to Business (BtB) parcel services;

(c) Domestic light goods/pallet goods services;

(d) International light goods/pallet goods services;

Article 3

This Decision is addressed to the Kingdom of Denmark.

Done at Brussels, 16 March 2007.

For the Commission

Charlie McCREEVY
Member of the Commission