bpost SA v Institut belge des services postaux et des télécommunications (IBPT).
Date: 2015-02-11
20. It is apparent from the order for reference that the parties to the main proceedings disagree on the scope of the fifth indent of Article 12 of Directive 97/67 and on the interpretation which the Court has made of that provision in the judgment in Deutsche Post and Others (C‑287/06 to C‑292/06, EU:C:2008:141).
27. In the context of that assessment, it is necessary only to ascertain whether the practice in question follows the established case-law of the Court, pursuant to which the principle of equal treatment, which is one of the fundamental principles of EU law, requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (judgments in Ruckdeschel and Others , 117/76 and 16/77, EU:C:1977:160, paragraph 7, and Almer Beheer and Daedalus Holding , C‑441/12, EU:C:2014:2226, paragraph 47).
42. Indeed, in the judgment in Deutsche Post and Others  (EU:C:2008:141, paragraph 44), the Court has held that Article 12 of Directive 97/67 precludes refusal to apply to consolidators of postal items from various senders the special tariffs which the national universal postal service provider grants to the senders themselves.
43. In the context of the reasoning underlying that decision, the Court dismissed in particular the argument of Deutsche Post AG and the German Government that permitting consolidators to benefit from certain discounts would threaten the financial stability of Deutsche Post AG (judgment in Deutsche Post and Others , EU:C:2008:141, paragraph 36).
45. The case which gave rise to the judgment in Deutsche Post and Others  (EU:C:2008:141) did not involve quantity discounts, but operational discounts. In that regard, the Court considered, in paragraph 37 of that judgment, that, in so far as the special tariffs, which take account of the avoided costs, as compared to the standard service, can therefore be set in such a way that they do not differ from the normal tariffs except due to the fact that the costs actually avoided are deducted from the latter tariffs, with the result that the grant of special tariffs does not affect the financial stability of Deutsche Post AG, as the universal postal service provider.
46. The Court concluded therefrom that, if it were to turn out that the grant to the intermediaries of the discounts currently agreed only for the business customers of Deutsche Post AG meant that those discounts were excessive compared with the avoided costs, it would be open to the company to reduce those discounts to the extent necessary for all recipients (judgment in Deutsche Post and Others , EU:C:2008:141, paragraph 38).
47. Thus, although the bulk mailers and consolidators could be in comparable situations as regards operational discounts, as follows from the judgment in Deutsche Post and Others  (EU:C:2008:141), that is not necessarily the case as regards quantity discounts, such as those at issue in the main proceedings. The quantity discounts per sender are such as to encourage the senders to hand on more mail to bpost, enabling it thereby to make economies of scale. However, the activity carried out by the consolidators does not contribute, of itself, as has been noted in paragraph 38 of this judgment, to an increase in the mail handed on to bpost and, accordingly, to bpost achieving those savings.