On 23 August 2017, it was made public that the European Commission will request the Belgian Supreme Court (Hof van Cassatie/Cour de cassation) to make a request for a preliminary ruling to the Court of Justice of the European Union (“ECJ”) on whether distinct fines imposed for the same facts by a postal regulatory authority and a competition authority can amount to double jeopardy contrary to the “ne bis in idem” principle.
This is a new and interesting development in a protracted legal battle between bpost, the Belgian incumbent postal company, and the Belgian Competition Authority (Belgische Mededingingsautoriteit/Autorité belge de la Concurrence) (“BCA”) concerning the impact of bpost’s quantitative rebate scheme on so-called “consolidators”, i.e., intermediaries offering postal services such as preparing, processing and transporting mail to bpost’s distribution points.
On 10 December 2012, further to a complaint filed by consolidators, the BCA imposed a fine of EUR 37.4 million on bpost for abusing its dominant position by applying a discriminatory rebate system. From January 2010 until July 2011, bpost had applied a “model per sender” rebate system, which awarded rebates to large clients on the basis of the volume of the mail or the degree of preparation of the mail for further treatment. bpost’s discount applied to both senders and consolidators but was calculated on the basis of the turnover generated by each sender individually. As a result, this rebate system did not allow consolidators to aggregate all the mail they processed for different senders. In practice, a sender which provided a large volume of mailings to bpost benefited from a higher rebate than that obtained by a consolidator which handed over an equivalent volume of mail on behalf of several senders. The BCA found that this system was discriminatory (see VBB on Belgian Business Law, Volume 2012, No. 12, p. 3, available at www.vbb.com).
However, in July 2011, bpost had already been given a EUR 2.3 million fine by the postal regulator, the Belgian Institute for Postal Services and Telecommunications (“BIPT”), when BIPT decided that this rebate system was incompatible with postal regulations. The BCA reduced the amount of its own fine to take into account the prior fine imposed by BIPT.
bpost appealed both decisions to the Brussels Court of Appeal. As regards the BIPT decision, the Court of Appeal requested the ECJ to issue a preliminary ruling on the case. In a judgment of 11 February 2015, the ECJ held that bpost’s quantity discount scheme did not discriminate against consolidators. The difference in treatment between senders and consolidators would constitute a form of discrimination prohibited by Article 12 of Directive 97/67/EC on common rules for the development of the internal market of Community postal services and the improvement of quality of service only if (i) senders and consolidators were in comparable situations on the postal distribution market; and (ii) there was no objective justification for the difference in treatment. The ECJ found that senders and consolidators were not in comparable situations, since quantity discounts aim to increase the volume of mail handled by bpost in order to achieve economies of scale, which consolidators cannot do since they only consolidate mail, rather than sending it, and thus have no impact on actual volumes sent (see VBB on Belgian Business Law, Volume 2015, No. 2, p. 3, available at www.vbb.com). Following this preliminary ruling, the Brussels Court of Appeal annulled BIPT’s decision on 10 March 2016.
Subsequently, the Brussels Court of Appeal also annulled the decision of the BCA, but for an entirely different reason: the Court of Appeal found that the decision infringed the “ne bis in idem” principle, pursuant to which one cannot be tried or punished for an infringement for which it has already been convicted or acquitted. The Court found that the BCA infringed this principle as BIPT had already fined bpost for the same rebate scheme. Although BIPT had based its reasoning on a different legal ground (the postal regulation and not competition law), the Court of Appeal found that the three conditions for the application of the “ne bis in idem” principle were satisfied: (i) both the BIPT’s and the BCA’s fines were of a criminal nature; (ii) both proceedings concerned the same facts (the rebate scheme); and (iii) the judgment of the Court of Appeal of 10 March 2016 had made the BIPT decision final. As a result, the Brussels Court of Appeal annulled the BCA’s decision (see VBB on Belgian Business Law, Volume 2016, No. 12, p. 5, available at www.vbb.com).
The BCA filed a further appeal against this latter judgment before the Belgian Supreme Court (appeal limited to points of law only). The BCA argued that the Brussels Court of Appeal did not properly assess whether the BCA’s fine amounted to a breach of the “ne bis in idem” principle. It is in the context of these ongoing proceedings before the Supreme Court that the European Commission intends to request the Court to refer the case to the ECJ for a preliminary ruling, which would lead the highest European Court to review this case for the second time.
The impact of this preliminary ruling is expected to be significant as it will help shape the relationship between decisions adopted by antitrust authorities and regulatory bodies across the European Union.
