The Court of Justice confirmed in a preliminary ruling on 11 February 2015 that bpost's "per sender" price model is compatible with the requirement for non-discrimination in Article 12 of the Postal Directive (97/67/EC).
The "per sender" model, which was applied by bpost in 2010, consisted of quantity discounts – the rate of which changed according to the volume of mailings generated during a reference period – calculated on the basis of the turnover generated individually by each sender and not on the basis of all mailings collected by an intermediary (also known as a consolidator) from several senders. These quantity discounts aim to stimulate demand for postal services and make senders opt for delivery of their (commercial) messages by post rather than via electronic mail. In its decision of 20 July 2011, the BIPT concluded that this price model treated intermediaries and senders differently and therefore violated the requirement for non-discrimination in Article 12 of the Postal Directive.
As part of the appeal proceedings initiated by bpost against the decision of the BIPT, the Brussels Court of Appeal referred a number of questions regarding the precise scope of the non-discrimination requirement of Article 12 (fourth and fifth indent) of the Postal Directive to the Court of Justice for a preliminary ruling.
In its judgment of 11 February 2015 (case C-340/13), the Court of Justice concluded that the "per sender" calculation of quantity discounts does not violate the non-discrimination requirement. The Court maintains, referring to its established case law concerning the principle of equal treatment (which is one of the fundamental principles of EU law), that there can only be a violation of the non-discrimination requirement if (1) the senders and the intermediaries are in comparable situations on the postal distribution market, and (2) there is no objective justification for the difference in treatment.
The Court of Justice concludes that the senders and the intermediaries are not in comparable situations as regards the legitimate objective pursued by the quantity discounts (except to the limited extent that those intermediaries are themselves senders). The Court points out that the senders are the only ones in a position to increase the demand for postal services, since they are responsible for originating postal items. By contrast, according to the Court, the activity of an intermediary does not, of itself, contribute to an increase in the volume of mailings handed on to the postal operator.
The Court further established that when the quantity discounts awarded to an intermediary were calculated on the basis of the total volume of mail which the intermediary had collected from several senders, the legitimate objective of increasing the demand for postal services could be compromised. This could eventually even have a negative impact on the demand for postal services in general and on the financial stability of the postal operator. The Court of Justice therefore concluded that, since the senders and the intermediaries are not in a comparable situation, the "per sender" model does not violate the non-discrimination requirement.