In the case of a service of general economic interest, postal dues must enable compensation to be paid for any losses that may result from operating the universal postal service
In Italy, the collection, carriage and delivery of mail are, in principle, services provided exclusively by the State. Any contravention is punishable by a fine (20 times the postage rate, subject to a minimum of 800 lire). Since 1998 the State has provided the service through a joint stock company - Poste Italiane SpA - in which the Ministry for the Treasury is the sole shareholder.
Under Italian legislation an undertaking providing an express mail service not forming part of the universal service must pay postal dues to the operator responsible for the universal service (in this case, Poste Italiane), amounting to the postage rate normally payable.
In February 1997, three employees of Poste Italiane inspected TNT Traco SpA's subsidiary in Genoa. Having ascertained that express mail had been collected, carried and delivered in breach of the regime conferring exclusivity, they imposed a fine on TNT Traco of more than 46 million lire.
TNT Traco brought an action before the District Court in Genoa, relying on the principles of free competition laid down in the Treaty on European Union.
The Italian court first ordered Poste Italiane to repay TNT Traco the 46 million lire. It considered that the supervisory, regulatory and disciplinary powers previously held by Poste Italiane had been transferred to the Ministry of Posts and Telecommunications by a 1994 Law.
It then referred questions to the Court of Justice concerning the compatibility of the Italian legislation with the Community competition rules.
The Court observes that Poste Italiane is, for the purposes of the Treaty, a public undertaking which has been granted special or exclusive rights, since it is not required to pay, as must any other operator, postal dues amounting to the postage rate normally payable. As such, it has a dominant position in Italy .
Italian law creates a situation in which the undertaking which has been granted special or exclusive rights cannot avoid abusing its dominant position since it is paid for services which it has not itself supplied.
The Court considers that the Italian court must ascertain whether that situation affects trade between Member States (as it would, for example, if the obligation to pay Poste Italiane the postal dues at issue also applied to economic operators supplying express mail services between the Italian Republic and another Member State). In that case, Italian law would be contrary to the Community rules on free competition.
Poste Italiane and the Italian Government submit that the obligation to pay the postal due is justified by the need to safeguard the economic stability of the undertaking entrusted with the operation of the universal postal service.
According to the case-law of the Court, the grant of special or exclusive rights to an undertaking entrusted with the operation of services of general economic interest may be justified by the need to ensure that the undertaking's special task is performed and provided that the development of trade between Member States is not affected to such an extent as would be contrary to the interests of the Community.
The Court acknowledges that an undertaking like Poste Italiane is responsible for operating a service in the general economic interest, since it secures the universal postal service, irrespective of the profitability of the sector being served.
In order to enable such an undertaking to perform that special task, it may prove necessary not only to permit it to offset its profitable sectors against its less profitable sectors, but also to require suppliers of postal services not forming part of the universal service to pay postal dues which contribute to the financing of the universal service and enable that service to be provided in conditions of economic stability.
The total proceeds from the postal dues, paid by all economic operators supplying an express mail service, may not, however, exceed the amount necessary to offset any losses in the universal postal service.
Furthermore, the Court considers that when the undertaking providing the universal postal service supplies an express mail service, it must also be required, under the same conditions, to pay the postal dues.
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