"EasyPay" AD and "Finance Engineering" AD v Ministerski savet na Republika Bulgaria and Natsionalen osiguritelen institut.
Date: 2015-10-22
30. However, neither Article 2 nor any other provision of Directive 97/67 mentions financial services, including those provided as an additional service by the postal services providers (see, to that effect, judgment in Asempre and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería , C‑240/02, EU:C:2004:140, paragraph 31).
31. It must also be stated that, in the light of the precise and exhaustive character of that provision of Directive 97/67, a wide interpretation thereof, which would extend the scope of that directive to situations which do not in fact fall within its scope, cannot be accepted (see, to that effect, judgment in Asempre and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería , C‑240/02, EU:C:2004:140, paragraph 32).
32. It has thus been held that money order services, which consist in making payments through the public postal network to natural or legal persons on behalf of and on the order of others, are not within the scope of Directive 97/67 (see judgment in Asempre and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería , C‑240/02, EU:C:2004:140, paragraph 34).
35. As a preliminary point, it must be borne in mind that classification as State aid requires all the conditions laid down in Article 107(1) TFEU to be satisfied. First, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition (see judgment in Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 74 and the case-law cited).
36. Thus, for the purpose of a classification as State aid, Article 107(1) TFEU presupposes in particular that there is an advantage conferred on an undertaking.
37. In that regard, firstly, it must be pointed out, on the one hand, that, for the purposes of the application of EU competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. On the other, any activity consisting in offering goods and services on a given market is an economic activity (see judgment in Compass-Datenbank , C‑138/11, EU:C:2012:449, paragraph 35).
38. Furthermore, it has been held that the organisations involved in the management of the public social security system fulfil an exclusively social function. That activity is based on the principle of national solidarity and is entirely non-profit-making. The benefits paid are statutory benefits bearing no relation to the amount of the contributions (see, to that effect, judgment in Poucet and Pistre , C‑159/91 and C‑160/91, EU:C:1993:63, paragraph 18).
40. In that context, it must be recalled that, in order to avoid classification as an economic activity, that activity must, by its nature, its aim and the rules to which it is subject, be inseparably connected with the national pensions system (see, by analogy, judgment in Aéroports de Paris  v Commission , C‑82/01 P, EU:C:2002:617, paragraph 81). Thus, in the main proceedings, any inseparable connection thereto of the activity of money order operations must be taken into consideration.
45. In that regard, it must be borne in mind that a State measure regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them is not caught by Article 107(1) TFEU (see judgments in Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 84, and Altmark Trans and Regierungspräsidium Magdeburg , C‑280/00, EU:C:2003:415, paragraph 87).
46. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied (judgment in Altmark Trans and Regierungspräsidium Magdeburg , C‑280/00, EU:C:2003:415, paragraph 88).
47. Firstly, it is clear from paragraph 89 of the judgment in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) that the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined in order for such compensation to escape classification as State aid.
49. Secondly, it follows from paragraph 90 of the judgment in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) that it is for the referring court to determine whether the parameters on the basis of which the compensation is calculated are established in advance in an objective and transparent manner.
51. Similarly, it is for the referring court to ascertain if, on application of the third condition laid down in paragraph 92 of the judgment in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), the compensation exceeds what is necessary to cover all or part of the costs incurred in the payment by money order of retirement pensions, taking into account the relevant receipts and a reasonable profit for discharging those obligations.
52. Where the undertaking which is to discharge the service of general economic interests as in the main proceedings, is not chosen pursuant to a public procurement procedure, it is also for the referring court to make sure, in accordance with the fourth condition laid down in paragraph 93 of the judgment in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), that the level of compensation is determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.
53. Thirdly, while the referring court points out that the remuneration received by ‘Balgarski poshti’ represents compensation not exceeding the amount laid down in Article 2(1)(a) of the SGEI decision, it must none the less be stated that that decision concerns measures constituting State aid within the meaning of Article 107 TFEU (see, to that effect, judgment in Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 102). It is only if the criteria referred to in paragraphs 47 to 52 of the present judgment are not complied with and if the conditions for Article 107(1) TFEU to apply are satisfied that the referring court may apply that decision in order to determine whether the measure at issue in the main proceedings, which can be classified as State aid within the meaning of Article 107 TFEU, is compatible with the internal market, in accordance with Article 106(2) TFEU and may be exempt from the prior notification requirement provided for in Article 108(3) TFEU.