The actions seeking the annulment of three Commission decisions concerning an agreement on fixing postal rates and the practice of certain public postal operators of intercepting "remailed" post have been upheld in part

1. Remail

The International Express Carriers Conference (IECC) is an organisation representing the interests of certain undertakings which provide express mail services. Its members offer, inter alia, 'remail’ services, consisting in the transportation of mail originating in Country A to the territory of Country B to be placed there with the local public postal operator for final transmission by the latter on its own territory or to Country A or Country C.

Depending on the country for which the mail is destined, three categories of remail services may be distinguished: 'ABC remail’ (where mail originating in Country A is transported by private companies to Country B and put into the postal system there for forwarding via the traditional international postal system to Country C), 'ABB remail’ (where mail originating in Country A is transported by private companies to Country B and put into the postal system there for delivery to final addressees in Country B), and 'ABA remail’ (where mail originating in Country A is transported by private companies to Country B and put into the postal system there in order to be sent via the traditional international postal system back to Country A). To these three types should be added 'non-physical remail’, which involves information from Country A being sent electronically to Country B, in which it is printed, transported and put into the postal system of Country B or Country C for forwarding to the final addressee.

2. The applicable provisions

The Universal Postal Union (UPU) Convention, to which all Member States of the European Community (EC) have acceded, specifies, inter alia, that no country which has acceded to the Convention is bound to forward or deliver remailed items to addressees and that, in those circumstances, the administration concerned may either return the items to origin or charge postage on them at its internal rates.

Article 85 of the EC Treaty prohibits all agreements between undertakings which may affect trade between Member States and which have the object or effect of distorting competition.

Article 86 of the EC Treaty prohibits abuses of a dominant position affecting trade between Member States.

3. The four actions brought

On 13 July 1988 the IECC lodged a complaint with the Commission. The IECC took the view, in particular, that a number of public postal operators established in the EC had infringed Article 85 of the Treaty by concluding in 1987 a price-fixing agreement in regard to the terminal dues which they charged each other when delivering international mail (the CEPT Agreement). In addition, a number of public postal operators (more particularly, the 'Post Office’, 'La Poste’ and 'Deutsche Post’) had, it was alleged, attempted to dissuade commercial companies and other public postal operators from working with private remail operators and had intercepted remailed post by invoking the UPU Convention. In 1989 a number of those public postal operators undertook no longer to rely on application of the UPU Convention in certain circumstances. In January 1995 the public postal operators adopted a preliminary agreement (the REIMS Agreement) designed to lead to a system under which the receiving public postal operator would charge the originating public postal operator a fixed percentage of the former's domestic tariff for any post received.

In 1994 the IECC called on the Commission to define its position on the complaint. Failing to elicit any reaction on the Commission's part, the IECC brought an action for a declaration of failure to act on 15 February 1995 (Case T-28/95).

On 17 February 1995, the Commission adopted a decision rejecting the first part of the complaint concerning application of Article 85 of the Treaty to the CEPT Agreement. The Commission took the view that there was no longer any Community interest in continuing the investigation into that part of the complaint inasmuch as the REIMS Agreement met the objections which the complainant had raised since it provided a link between the terminal dues imposed among public postal operators and their domestic tariff structures. That decision was challenged by the applicant in Case T-110/95.

On 6 April 1995, the Commission addressed to the IECC a decision rejecting the second part of its complaint, in so far as it concerned the interception of commercial ABA remail, non-commercial ABA remail, so-called 'non-physical’ ABA remail and normal cross-border mail. Regarding the last three types of mail, the Commission took the view that the express mail companies belonging to the IECC were not engaged in activities concerning these types of mail. For that reason, they had no legitimate interest in bringing a complaint before the Commission in regard to such matters. Concerning commercial ABA remail, the Commission found that interception of this type of mail did not constitute an abuse of a dominant position within the meaning of Article 86 of the Treaty in so far as this type of interception resulted from the public postal operators' need to protect themselves against circumvention of their national monopolies for mail delivery. The applicant brought an action seeking annulment of that decision (Case T-133/95).

On 14 August 1995, the Commission adopted a final decision concerning the interception of ABC remail by a number of public postal operators. Since it formed the view, in substance, that the public postal operators had forsaken the possibility of relying on the UPU Convention for the purpose of intercepting ABC remail, and in the absence of evidence of fresh interceptions, the Commission rejected this final part of the complaint. It took the view that, in those circumstances, it was no longer necessary to adopt a prohibition decision. The applicant brought an action seeking the annulment of that decision, which forms the subject-matter of Case T-204/95.

4. The position taken by the Court of First Instance

(a) The judgment in Case T-28/95

In view of the Commission's adoption of the above three decisions after the action for a declaration of failure to act had been lodged, that action no longer served any purpose. The Court accordingly held that there was no longer any need for the case to proceed to judgment.

(b) The judgment in Case T-110/95

The Court dismissed the action for annulment in Case T-110/95 as being unfounded.

In the applicant's opinion, the Commission erred in forming the view that there was no further Community interest in pursuing its investigation into the first part of the complaint, a fortiori since it had accepted that the CEPT Agreement infringed Article 85 of the Treaty. The applicant further considered that the Commission had failed to establish that the draft REIMS Agreement Ä a provisional text the content of which was still the subject of negotiations Ä would necessarily put an end to the alleged infringement.

The Court rejected this argument, holding that the Commission was not obliged to continue investigation of the case until the adoption of a final decision. The Commission was entitled to rely on the existence of the draft REIMS Agreement as a ground for the absence of Community interest in continuing its investigation, since that document in fact met the objections which the Commission and the applicant itself had raised.

The Court also held that the stage reached by the public postal operators in the negotiation process provided sufficient guarantees for success within a reasonable period.

(c) The judgment in Cases T-133/95 and T-204/95

The Court annulled in part the decision of 6 April 1995 in so far as it concerned commercial physical ABA remail. The action brought against the decision of 14 August 1995 was dismissed in its entirety.

According to the applicant, the Commission failed, in its decision of 6 April 1995, to take account of the fact that the interception of commercial ABA mail constituted an abuse of the statutory monopoly enjoyed by the public postal operators which infringed Article 86 of the Treaty.

The Court took the view that the Commission could not consider that a practice did not constitute an abuse by referring simply to the need to protect a dominant position. The Court found, in other words, that, contrary to the Commission's contention, the interceptions in dispute could not be justified solely by the fact that the terminal dues did not enable the public postal operators to cover the costs which they incurred in delivering mail. Moreover, although there was an imbalance between the costs which a public postal operator bore in delivering incoming mail and the remuneration which it received, that imbalance was the result of the agreement concluded among the public postal operators themselves. Finally, it did not appear from the contested decision that the Commission had examined whether other measures might be regarded as less restrictive than the interceptions in dispute. Accordingly, the Court annulled the decision of 6 April 1995 in so far as it stated that interceptions of commercial ABA remail by public postal operators did not constitute an abuse of their postal monopoly.

With regard to ABC remail, which was the subject of the decision of 14 August 1995, the applicant took the view, in substance, that the Commission had infringed Articles 85 and 86 of the Treaty and committed errors in its assessment of the relevant facts. The Court found in this regard that the Commission was lawfully entitled, in the case at issue, to decide that it was not appropriate to pursue a complaint denouncing practices which were subsequently discontinued. The Commission was entitled to take the view that, where operators against which a complaint had been made had given undertakings and the applicant had failed to provide any evidence that those undertakings had been disregarded, it was unnecessary for it to examine that complaint any further.

N.B.: an appeal, limited to questions of law, may be lodged before the Court of Justice of the European Communities against these decisions of the Court of First Instance within two months of the date of notification.