On 10 November 2016, the Brussels Court of Appeal annulled a decision of the Competition Council which condemned bpost's "per sender" pricing model. The Court of Appeal considered that this was in breach of the ne bis in idem principle, since bpost had already been prosecuted by the Belgian postal regulator in relation to identical facts.
From January 2010 to July 2011, bpost applied, for direct mail and administrative mail, a pricing system consisting of calculating volume rebates on the total volume per sender (rather than on the aggregate volumes handled by intermediaries). This "per sender" model was first condemned by the Belgian Institute for Postal Services ("BIPT") in a decision of 20 July 2011, which considered the pricing model to be discriminatory for intermediaries. In a decision dated 10 December 2012, the Competition Council also condemned bpost's "per sender" model, considering that it constituted an abuse of dominant position within the meaning of Article 102 TFEU and article 3 of the Act on the protection of economic competition. These decisions were both appealed before the Brussels Court of Appeal in two separate actions.
In a judgment dated 10 March 2016, the Brussels Court of Appeal annulled the BIPT decision, ruling that the "per sender" model was not discriminatory for intermediaries.
Given that final judgment regarding the BIPT decision, the Court of Appeal held, in the context of the appeal against the Competition Council decision, that, in accordance with the general principle of law ne bis in idem, bpost could not be prosecuted a second time in relation to the same facts.
In view of that finding, the Brussels Court of Appeal, in its judgment of 10 November 2016, annulled the decision of the Competition Council and ordered repayment of the fine which bpost had paid.