2001/892/EC: Commission Decision of 25 July 2001 relating to a proceeding under Article 82 of the EC Treaty (COMP/C-1/36.915 — Deutsche Post AG — Interception of cross-border mail) (Text with EEA relevance) (notified under document number C(2001) 1934)

Article 5
This Decision shall be enforceable pursuant to Article 256 of the EC Treaty.
Done at Brussels, 25 July 2001.
For the Commission
Mario Monti
Member of the Commission
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.
(4) On 26 March 2001 the BPO changed its name to Consignia plc, which is a public limited company wholly owned by the UK Government. For the purposes of this Decision, however, the name "British Post Office (BPO)" is retained.
(5) The Deutsche Post group of companies now markets itself under the name Deutsche Post World Net. For the purposes of this Decision, the name Deutsche Post AG (DPAG) is used.
(6) DPAG Annual Report 2000, published on 2 May 2001. For the purposes of this Decision, the Commission consistently uses the irrevocable conversion rate adopted by the Council on 31 December 1998 when converting German marks into euro even in cases where the particular amount concerned a period of time prior to that date.
(7) The Mail Division of DPAG comprises the business divisions Mail Communication (letters, packages and parcels except express), Direct Marketing and Press Distribution. DPAG Annual Report 2000.
(8) Profit from operative activities before amortisation and goodwill (EBITA). DPAG Annual Report 2000.
(9) DPAG Annual Report 2000.
(10) Profit from operative activities before amortisation and goodwill (EBITA). DPAG Annual Report 2000.
(11) Postal Act (Postgesetz) of 22 December 1997, Bundesgesetzblatt 1997, Part I, No 88, 30 December 1997.
(12) Section 51 of the Postal Act.
(13) See Tarifvergleich Briefpost - Inlandstarife bis 20 g, June 1999, Referat 212, Regulierungsbehörde für Telekommunikation und Post (RegTP - the national regulatory authority in Germany). The present domestic tariff for a first class letter in the first weight step is EUR 0,56 (DEM 1,10).
(14) DPAG's monopoly was reduced as of 1 January 1998 when the monopoly threshold for identical bulk mailings was reduced from 100 grams to 50 grams. Section 51(4) of the Postal Act exempts certain value-added services from the postal monopoly.
(15) Section 47 of the Postal Act provides that RegTP shall, every two years, present a report to the legislative bodies of Germany. Inter alia, the report shall include RegTPs observations on the possible necessity of maintaining the exclusive licence under Section 51 beyond the date set forth therein (i.e. 31 December 2002).
(16) KEP Nachrichten, No 51/17, December 1999 (document 1146 in the Commission file).
(17) Mid-2000 Report of RegTP, p. 62, as published on its website (www.regtp.de).
(18) See Commission Decision 1999/695/EC REIMS II, Case COMP/36.748 (OJ L 275, 26.10.1999, p. 17). The REIMS II agreement entered into force on 1 April 1999. The Commission has adopted a decision pursuant to Article 81(3) of the Treaty which exempts the agreement until 31 December 2001. The PPOs of all Member States except TPG of the Netherlands are signatories to this agreement, in which terminal dues are expressed as a percentage of domestic tariffs in the receiving country. Terminal dues were increased annually, provided that the receiving PPO met certain quality of service standards. As of 1 January 2001, the terminal dues were increased to the level of 70 %.
(19) Liberalisation of Incoming and Outgoing Intra-Community Cross-border Mail, p. 25. In this study, seven Community PPOs were asked to estimate their own market shares in 1996. The estimated shares for outgoing cross-border mail varied between 80 and 100 %.
(20) See, for instance, Deutsche Post AG gegen TNT Mailfast GmbH, ref. 31 O 796/93, Cologne Regional Court, 14 April 1994; TNT Mailfast GmbH gegen Deutsche Post AG, ref. U (Kart) 31/94, Düsseldorf Higher Regional Court, 23 April 1996; DHL Worldwide Express GmbH gegen Deutsche Post AG, judgment of the Düsseldorf Higher Regional Court, 23 April 1996.
(21) Liberalisation of Incoming and Outgoing Intra-Community Cross-border Mail, pp. 22 and 38. Seven Community PPOs estimated that their market shares for incoming cross-border letter mail in 1996 varied between 95 and 100 %.
(22) OJ L 15, 21.1.1998, p. 14. The Directive opened some 3 % of PPOs total mail turnover to competition. In practice, PPOs have retained everything but a very small share of the business theoretically open to competition.
(23) [2000] ECR I-825, at paragraph 12. Preliminary ruling in response to questions referred to the Court of Justice by the Frankfurt am Main Higher Regional Court pursuant to Article 234 of the EC Treaty.
(24) Common position paper concerning the revision of Directive 97/67/EC published by DPAG, TNT Post Group NV and Sweden Post Ltd of 14 February 2000 (document 1146 in the Commission file).
(25) Deutsche Post Global Mail was previously called International Mail Services GmbH. DPAG brochure "Zum Beispiel - Oracle8 ConText Cartridge", annexed to DPAG's response to a Commission request for information of 23 April 1999 (document 1122 in the Commission file).
(26) Underlining by the Commission. DPAG promotional brochure 'We Deliver', published on 1 January 1999, p. 48 (document 1140 in the Commission file).
(27) DPAG "Unvollständiger Verkaufsprospekt" of 20 October 2000, p. 140.
(28) DPAG "Unvollständiger Verkaufsprospekt" of 20 October 2000, p. 146.
(29) Letter from American Express to the Commission of 15 April 1999 (document 975 in the Commission file).
(30) Article 65 UPU 1999.
(31) In UPU 1999, Article 25 has become Article 43.
(32) Sentence underlined by the Commission.
(33) Referring to a judgment of the German Federal Constitutional Court (BverfGE 63, 343, 354 ff.), the BPO maintains that UPU 1994 entered into force retroactively as of 1 January 1996.
(34) See footnote 22.
(35) DPAG refers to the following definition of the "materielle Absenderbegriff": the sender is "the person who, according to the overall impression, is to be perceived by a reasonable recipient as he who addresses himself with a direct, personal interest in communication to the addressee.", Frankfurt am Main Higher Regional Court, decision of 25 March 1999, NJW-RR 1997, pp. 162, 165.
(36) See judgment of the Berlin Regional Court ref. 97 O 252/98, DPAG/Franklin Mint GmbH of 27 November 2000; in its judgment the court concluded that a strict application of the material definition of sender, which does not take into account the actual origin of the mailing in question, was incorrect. Judgment of the Bonn Regional Court ref. 1 O 487/1999, Center Parcs NV/DPAG of 22 September 2000; the court concluded that DPAG's interpretation of the material sender was incorrect and concluded that Center Parcs NV of the Netherlands was the sender and not the German subsidiary Center Parcs GmbH & Co. KG. Judgment of the Düsseldorf Higher Regional Court ref. U (Kart) 17/1999, DPAG/Comfort Card of 20 September 2000; the court concluded that DPAG's interpretation of the material sender was incorrect and rejected DPAG's claims.
(37) DPAG reply to the Statement of Objections, p. 32.
(38) Identical apart from language and contact addresses on covering letters.
(39) DPAG notified the BPO of the interception by fax on 4 November 1996 but it did not state when the mailing was actually stopped (documents 38-41 in the Commission file).
(40) Fax from the BPO to DPAG of 8 November 1996, in which the BPO requests DPAG to "release the mail" and to "let [the BPO] know what the costs are" (document 47 in the Commission file).
(41) Fax from DPAG to the BPO of 14 November 1996 which states that the mail has been released, without saying when the release took place (document 52 in the Commission file).
(42) The agent trades under the name Framar International. However, the registered name of the company is Werbung und Dienstleistungen für Versandhandel GmbH.
(43) Fax from the BPO to DPAG of 12 November 1996 including the statement "Royal Mail International agrees to pay the cost for the release of Ideas Direct, from the Terminal Dues account" (document 49 in the Commission file). In its reply to the Statement of Objections, DPAG submitted a copy of a fax sent to the BPO on 12 December which seems to indicate that the mailings were forwarded that day.
(44) It should be noted that DPAG changed its view on this point during the course of the proceedings. In its initial response to the complaint, DPAG confirmed that the mailing was released on 14 November 1996 (DPAG response to the complaint of 20 July 1998, p. 10 - document 176 in the Commission file).
(45) The summons was incorrectly directed to Ideas Direct Ltd, Osterbekstrasse 90a, Hamburg, which is the address of Framar International. The summons was received by the Court on 5 January 1999. Despite the fact that no company trading under the name Ideas Direct is domiciled at that address, the summons was accepted by the German Court (documents 611-914 in the Commission file).
(46) Deutsche Post AG gegen Ideas Direct Ltd, ref. 416 O 2/1999, judgment of Hamburg Regional Court of 29 October 1999.
(47) Underlining by the Commission. Letter from DPAG to the BPO of 27 November 1998, including attached records of 19 mailings from Ideas Direct (documents 524-526 in the Commission file).
(48) Underlining by the Commission. Fax from DPAG to the BPO of 3 February 1999 (documents 927-928 in the Commission file).
(49) Commission request for information of 3 March 1999 (document 606 in the Commission file).
(50) DPAG response to request for information of 23 April 1999 (document 991 in the Commission file).
(51) DPAG submission to the Commission of 2 May 2001, p 2.
(52) DPAG letter to the Commission of 2 May 2001, p. 2 (... verfügte die Deutsche Post AG über Mustersendungen, so dass es keines Anhaltens zur Prüfung mehr bedurfte.)
(53) Communication from the BPO to the Commission of 10 May 2001.
(54) DPAG letter to the Commission of 18 May 2001, p. 1.
(55) DPAG Remail Case Control Form, fax from DPAG to the BPO of 7 April 1997 (document 60 in the Commission file).
(56) Documents 61-62 in the Commission file.
(57) Fax from the BPO to DPAG of 16 April 1997 (document 55 in the Commission file).
(58) Fax from DPAG to the BPO of 17 April 1997 (document 56 in the Commission file).
(59) Letter from the BPO to DPAG of 17 April 1997 in which the BPO maintains the following: "I understand from Fidelity UK that you are having a meeting today to decide whether to release the mailings or not. Why? I personally gave authorisation for the release of the mail several weeks ago under the normal process which was agreed by both our administrations" (document 58 in the Commission file).
(60) DPAG records of received mailings from Fidelity Investments in the UK as sent to the BPO on 11 December 1998 (documents 506-507 in the Commission file).
(61) Underlining by the Commission. Fax from DPAG to the BPO of 11 December 1998 (documents 493-494 in the Commission file). Sample mail items - including contents dated 9 October 1997 - were attached to the letter (documents 495-505 in the Commission file).
(62) Letter from DPAG to Fidelity Investments Services GmbH of 28 December 1998. Annex 9 of the BPO memorandum of 17 November 2000.
(63) Letter from DPAG to the BPO of 1 February 1999 (documents 931 and 932 in the Commission file).
(64) Letter from DPAG to the BPO of 3 February 1999 (documents 929 and 930 in the Commission file).
(65) Letters from Fidelity Investments to German customers dated 20 March 1997 and 15 June 1998 (documents 203-209 in the Commission file).
(66) Letter from DPAG dated 17 August 1998 to an addressee of a Fidelity Investments mailing (document 313 in the Commission file). ("... die Vermutung, dass der Absender dieser Sendungen internationale Regelungen missbräuchlich verwendet.")
(67) Letter from Fidelity Investments to the BPO of 12 October 1998 (documents 311-312 in the Commission file).
(68) Hearing held on 23 November 2000; BPO memorandum of 17 November 2000, p. 31.
(69) DPAG response to the complaint of 20 July 1998, p. 11 (document 177 in the Commission file).
(70) DPAG response to the complaint of 20 July 1998, p. 13 (document 179 in the Commission file).
(71) Commission request for information of 3 March 1999 (document 606 in the Commission file).
(72) DPAG response to request for information of 23 April 1999, p. 8 (document 991 in the Commission file).
(73) DPAG reply to Statement of Objections, 22 September 2000, p. 21.
(74) Documents 506 and 507 in the Commission file - submitted by the BPO - contain copies from a DPAG database which provides detailed information about each intercepted mailing from Fidelity Investments (e.g. case number, date of interception and number of items).
(75) Documents 55, 56 and 60 in the Commission file.
(76) DPAG reply to the Statement of Objections, 22 September 2000, p. 22. In the fax from DPAG to the BPO of 17 April 1997, DPAG states that the mail "will be released" (document 56 in the Commission file).
(77) DPAG submission to the Commission of 2 May 2001, p. 2. (Da die Informationen, die zur Durchsetzung des Zahlungsanspruches vor deutschen Gerichten benötigt wurden, vorhanden waren, bestand aus Sicht der Deutschen Post AG keine Notwendigkeit, weitere Ermittlungen darüber anzustellen, ob die Voraussetzungen des materiellen Absenderbegriffes erfüllt waren. [...] Die Sendungen waren zeitnah weitergeleitet worden. Es ging lediglich noch darum, die Zahlungsansprüche geltend zu machen.)
(78) Communication from the BPO to the Commission of 10 May 2001.
(79) DPAG letter to the Commission of 18 May 2001, p. 2.
(80) Fax from DPAG to the BPO of 16 September 1996 (documents 66-68 in the Commission file). In the fax DPAG claimed to have discovered an A-B-A remailing from Pyramid Sportswear GmbH containing 6076 items. DPAG did not indicate any case control number for this mailing. A copy of a sample envelope but not the catalogue itself was attached to the fax.
(81) Fax from the BPO to DPAG of 25 September 1996 (document 69 in the Commission file).
(82) Fax from DPAG to the BPO of 25 September 1996 (document 71 in the Commission file).
(83) Fax from DPAG to the BPO of 26 September 1996 (document 77 in the Commission file).
(84) Letter from Pyramid Sportswear GmbH to DPAG of 31 October 1996 (documents 64-65 in the Commission file). In the letter Pyramid Sportswear GmbH makes it clear that the distribution of Gant catalogues for all Gant Stores in Europe is done centrally from the UK.
(85) DPAG response to the complaint of 20 July 1998 pp. 15-16 (documents 181-182 in the Commission file).
(86) DPAG reply to the Statement of Objections of 22 September 2000.
(87) Copy of an internal DPAG record which was faxed within DPAG on 4 October 1996. In the fax, the forwarding of the mailing is approved following the BPO's agreement to pay the surcharge. The record does not indicate whether the mailing was actually released on that day. DPAG reply to the Statement of Objections of 22 September 2000, annex 12.
(88) DPAG letter and remail case control form of 17 September 1998 (documents 317-319 in the Commission file).
(89) DPAG letter and remail case control form of 17 September 1998 (documents 317-319 in the Commission file).
(90) Remail case control form of 17 September 1998 (document 317 in the Commission file).
(91) DPAG letter to the Commission of 2 May 2001, p. 3.
(92) DPAG letter to the Commission of 18 May 2001, p.3. DPAG did not, however, submit any supporting evidence confirming the date of release.
(93) DPAG reply to the Statement of Objections of 22 September 2000, annex 13.
(94) Remail case control form sent by DPAG to the BPO on 11 February 1999 (document 991, annex 2-1 in the Commission file).
(95) Underlining by the Commission. Remail case control form returned to DPAG by the BPO on 11 February 1999 (document 992 in the Commission file).
(96) DPAG reply to the Statement of Objections of 22 September 2000, pp. 25-26.
(97) DPAG reply to the Statement of Objections of 22 September 2000, pp. 25-26.
(98) DPAG submission of 23 April 1999 (document 991, p. 7, in the Commission file) and DPAG reply to the Statement of Objections of 22 September 2000.
(99) In this context the ender referred to by DPAG is the entity in Germany which DPAG considers to be the material sender. Fax from DPAG to the BPO of 18 February 1999 with the title Remailingfallbearbeitung (document 992, annex 2-3 in the Commission file).
(100) Underlining by the Commission. Fax from DPAG to the BPO of 20 February 1999 (document 992, annex 2-3, in the Commission file).
(101) DPAG submission to the Commission of 2 May 2001, p. 3.
(102) DPAG Magazine Post Forum Spezial, November 1999, p. 6 (document 1199 in the Commission file).
(103) Passages between brackets [...] indicate business secrets deleted.
(104) Passages between brackets [...] indicate business secrets deleted.
(105) Passages between brackets [...] indicate business secrets deleted.
(106) DPAG reply to the Statement of Objections of 22 September 2000, p. 31.
(107) Passages between brackets [...] indicate business secrets deleted.
(108) DPAG reply to the Statement of Objections of 22 September 2000, p. 24.
(109) DPAG response to Commission Article 11 request for information of 24 April 1999 (document No 991 in the Commission file). In addition, DPAG has addressed the same issue in its reply to the Commission's Statement of Objections of 22 September 2000 and at the hearing held on 23 November 2000.
(110) At the hearing on 23 November 2000, DPAG disclosed the approximate number of token addressees which is contacted after a mailing has been intercepted, something which DPAG had not done previously.
(111) Statement by DPAG at the hearing held on 23 November 2000 in response to a direct question. DPAG had not hitherto communicated this information to the Commission.
(112) Fax from DPAG to the BPO of 18 December 1996 concerning the company Super Foto (BPO memorandum of 17 November 2000, annex 1).
(113) The remail case control form was introduced in October 1996. BPO memorandum of 22 February 1999, p. 2 (document 548 in the Commission file).
(114) DPAG response to Commission request for information of 26 April 1999 (document 991 in the Commission file).
(115) DPAG response to Commission request for information of 26 April 1999 (document 991 in the Commission file).
NB:
by applying this procedure DPAG in fact puts the burden of proof on the sending PPO and the entity residing in Germany which DPAG considers to be the sender. DPAG will only deliver the mail at the international rate if they can prove the existence of a foreign sender.
(116) DPAG submission to the Commission of 2 May 2001, p. 2. NB: the remail case control forms used by DPAG do not mention the date of arrival but always "the date of interception".
(117) DPAG reply to the Commission's request for information of 23 April 1999, p. 8 (document 991 in the Commission file).
(118) BPO memorandum of 22 February 1999, p. 2.
(119) Passages between brackets [...] indicate business secrets deleted.
(120) DPAG response to Commission request for information of 26 April 1999 (document 991 in the Commission file). When asked by the Commission, the BPO stated the following: The BPO has eight sales staff operating in Germany marketing services to German based customers. The BPO only offers services permitted under German law. It does not knowingly allow German customers - whose mail is produced in Germany - to send mail via the UK back to Germany. It is company policy to refuse the provision of such mailings. The BPO refutes the allegation that it has encouraged German customers to engage in A-B-A remail activities.
(121) Undated Memorandum of Understanding between the BPO and DPAG. The provisions of this agreement took effect as of 1 October 2000. The parties have agreed to review after 12 months the terms and conditions of the agreement, which will cease to apply if the review does not lead to mutual consent.
(122) GBP [...]. Average exchange rate in 2000 as published by the European Central Bank. BPO letter to the Commission of 7 March 2001.
(123) DEM [...]. BPO letter to the Commission of 7 March 2001.
(124) Undated Memorandum of Understanding; letter from the BPO to the Commission of 17 October 2000.
(125) Communication from DPAG to the Commission of 1 June 2001.
(126) In the letter DPAG requested four months to provide its reply to the Statement of Objections.
(127) The Commission denied DPAG additional respite in addition to the 13 weeks already granted (i.e. the normal period of eight weeks plus the holiday month of August).
(128) In a letter addressed to the Director-General for Competition, DPAG requested the Commission to close the proceedings against DPAG owing to alleged procedural errors.
(129) The Commission responded to DPAG's allegations that procedural errors had been committed.
(130) In its letter, DPAG made further allegations of procedural errors, reiterated its request for closure of the proceedings and its request to be granted an additional respite to submit its reply to the Statement of Objections.
(131) In his response to DPAG the Hearing Officer granted DPAG an additional respite of three weeks (i.e. 16 weeks in total).
(132) The Commission responded to DPAG's allegations that procedural errors had been committed.
(133) The letter informed the Commission of the fact that DPAG and the BPO had reached a financial settlement.
(134) PTT Post BV participated in the hearing as an interested third party pursuant to the first sentence of Article 19(2) of Regulation No 17 and Article 9(3) of Regulation (EC) No 2842/98.
(135) Center Parcs NV participated in the hearing as an interested third party pursuant to the first sentence of Article 19(2) of Regulation No 17 and Article 9(3) of Regulation (EC) No 2842/98.
(136) A non-confidential version of DPAG's submission of 11 December 2000 was annexed to this letter.
(137) A non-confidential version of the BPO's submission of 17 November 2000 was annexed to this letter.
(138) Excerpts from the draft Commission decision - containing additional facts - were annexed to this letter.
(139) DPAG requested a total period of two months to submit its comments on the excerpts from the draft decision sent to DPAG on 2 March 2001.
(140) The Commission granted DPAG an additional period of two weeks (i.e. five weeks in total) to submit its comments on the excerpts from the draft decision.
(141) At DPAG's request, the Commission granted DPAG a second period of two weeks (i.e. seven weeks in total) to submit its comments on the excerpts from the draft decision.
(142) The submission contained DPAG's comments on the excerpts from the draft Commission decision sent to DPAG on 2 March 2001.
(143) The letter contained clarifications - requested by the Commission - to some issues mentioned in the submission of 2 May 2001.
(144) DPAG reply to Statement of Objections, p. 4.
(145) Commission notice on the internal rules of procedure for processing requests for access to the file in cases pursuant to Articles 85 and 86 of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No 4064/89, OJ C 23, 23.1.1997, p. 3.
(146) As described above, some mailings concerned were sent from another Member State to the UK where they were forwarded by the BPO to its German addressees (i.e. A-B-C remail). However, the second leg of this routing (from country B to country C) is no different from normal A-B cross-border mail.
(147) This market definition concurs with previous decisions by the Commission, e.g. REIMS II. See footnote 18.
(148) See e.g. Case C-179/90 Merci Convenzionali Porto di Genoa SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889, at paragraph 14; Case C-41/90 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979, at paragraph 14; Case C-320/91 Paul Corbeau [1993] ECR I-2533, at paragraph 9.
(149) The following market segments fall outside the scope of DPAG's exclusive licence: postal items weighing more than 200 grams, postal items whose postage exceeds five times the basic tariff, identical bulk mail items weighing more than 50 grams and value-added services. Section 51 of the Postal Act.
(150) DPAG reply to the Statement of Objections, pp. 27-28.
(151) KEP Nachrichten, No. 51/17, December 1999 (document 1146 in the Commission file).
(152) KEP Nachrichten.
(153) Mid-2000 Report of RegTP, p. 62, as published on its website (www.regtp.de).
(154) "Study on the Weight and Price Limits of the Reserved Area in the Postal Sector", study by CT Con, published by the Commission in November 1998, pp. 33-34.
(155) The relative portion of revenues derived from the heavier weight bands is greater than the corresponding portion of volume.
(156) Section 51(2) of the Postal Act.
(157) This conclusion is consistent with recent research. See Liberalisation of Incoming and Outgoing Intra-Community Cross-border Mail, 1998, p. 38.
(158) Case 322/81 Michelin [1983] ECR 3461, at paragraphs 102-104.
(159) DPAG reply to complaint of 20 July 1998 (documents 163-249 in the Commission file).
(160) DPAG reply to Commission request for information of 26 April 1999, pp. 5-6 (document 991 in the Commission file).
(161) Joined Cases C-359/95 and C-379/95 Commission and France v Ladbroke Racing [1997] ECR I-6225, at paragraph 33.
(162) Ladbroke Racing, at paragraph 34. See also Case T-228/97 Irish Sugar plc v Commission [1999] ECR II-2969, at paragraph 130.
(163) Article 25 UPU 1989 was adopted as domestic German law in 1992, Gesetz zu den Verträgen vom 14. Dezember 1989 des Weltpostvereins, 31 August 1992, Bundesgesetzblatt 1992, Part II, p. 749. This law was succeeded by the transposition of the 1994 UPU convention in 1998. Ratifizierungsgesetz, 26 August 1998, Bundesgesetzblatt 1999, Part II, No 4, 10 February 1999.
(164) See section I.D., subsection The Convention of the Universal Postal Union, above.
(165) Judgment of the Court of First Instance in Case T-83/91 Tetra Pak International SA v Commission (Tetra Pak II) [1994] ECR II-755, at paragraphs 114, 115 and 155, as confirmed by the Court of Justice in Case C-333/94 P [1996] ECR I-5951.
(166) DPAG reply to the Statement of Objections, pp. 30-31.
(167) See for instance, the factual sections on Fidelity Investments and Gant above.
(168) See DPAG reply to the Statement of Objections, pp. 12-13. In its reply, DPAG lists a large number of national court cases where the material definition of sender has been applied.
(169) Underlining by the Commission. GSS & Citicorp, at paragraph 54; see footnote 23.
(170) The UPU Convention has subsequently been revised twice, in 1994 and 1999.
(171) 70 % of the domestic tariff in 2001, 65 % in 2000, 55 % between April and December 1999. Before the entry into force of the REIMS II agreement on 1 April 1999 terminal dues were set according to a previous agreement concluded between PPOs - the CENT agreement of 1987. DPAG claims a surcharge corresponding to the full domestic tariff minus terminal dues. The total charge thus equals the domestic tariff.
(172) DPAG reply to the Statement of Objections, pp. 33-35.
(173) DPAG reply to the Statement of Objections, pp. 35-36.
(174) See Commission Decision 2000/12/EC 1998 Football World Cup, Case IV/36.888 (OJ L 5, 8.1.2000, p. 55), at paragraph 87.
(175) Underlining by the Commission. GSS & Citicorp, paragraphs 59 and 60; see footnote 23.
(176) DPAG's tender for the American Express contract is an example of this competitive relationship. See section on International Mailing Services provided by DPAG in section I.D. above.
(177) See Tetra Pak II: Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Beige Transport and Others v Commission [2000] ECR I-1365, at paragraph 112.
(178) Decision 2000/12/EC, loc. cit.
(179) See for instance the section on Gant (the delayed 1996 mailing) in section I.E. above.
(180) DPAG referred to the judgments in Case 311/84 CBE v CLOTTED and IAB [1985] ECR 3261, at paragraph 26, and Case 27/76 United Brands v Commission [1978] ECR 207, at paragraphs 163, 168 and 203.
(181) DPAG reply to the Statement of Objections, pp. 37-38.
(182) DPAG reply to the Statement of Objections, pp. 15-16.
(183) The reasoning of the Court concerned "non-physical" A-B-A remail and not ordinary A-B cross-border mail. The analysis regarding refusal to supply may still be applied in the case at hand, however.
(184) Underlining by the Commission. DP/GSS & Citicorp, paragraphs 59-60.
(185) See Commission Decision 1999/243/EC Trans-Atlantic Conference Agreement (TAC), Case COMP/35.134 (OJ L 95, 9.4.1999, p. 1), at paragraph 553.
(186) NB:
During the course of the proceedings DPAG gave in a number of cases conflicting information in its various submissions to the Commission. As regards the factual elements of this case (e.g. release and interception dates) the Commission has established the minimum delays that can be proven on the basis of the documentary evidence and DPAG's statements in the present case.
(187) See section on Ideas Direct in section IE above.
(188) See section on Ideas Direct in section IE above.
(189) DPAG letter to the Commission of 18 May 2001, p. 1.
(190) The number of mailings is not known to the Commission. These mailings were listed in an annex to DPAG's letter. The annex has not been submitted to the Commission.
(191) See section on Ideas Direct - Retroactive Claims in the factual part above.
(192) DPAG letter to the Commission of 18 May 2001, p. 1.
(193) See DPAG list of intercepted mailings from Fidelity Investments (documents 506 and 507 in the Commission file).
(194) DPAG reply to the Statement of Objections, p. 21.
(195) Fax from DPAG to the BPO of 7 April 1997 (document 60 in the Commission file).
(196) Fax from DPAG to the BPO of 11 December 1998 (documents 493-494 in the Commission file).
(197) DPAG letter to the Commission of 18 May 2001, p. 2.
(198) The number of mailings is not known to the Commission. These mailings were listed in an annex to DPAG's letter. The annex has not been submitted to the Commission.
(199) Fax from DPAG to the BPO of 3 February 1999 (documents 929-930 in the Commission file).
(200) DPAG letter to the Commission of 18 May 2001, p. 2.
(201) Fax from DPAG to the BPO of 1 March 1999 (documents 931-932 in the Commission file).
(202) DPAG letter to the Commission of 18 May 2001, p. 2.
(203) See section on Gant - The 1998 Autumn Catalogue in the factual section above.
(204) DPAG letter to the Commission of 18 May 2001, p. 3.
(205) See sections on Gant and Multiple Zones in section IE above.
(206) See section on Fidelity Investments in section IE above.
(207) DPAG letter to the Commission of 11 December 2000, p. 7.
(208) Case 26/75 General Motors v Commission [1975] ECR 1367.
(209) DEM 1,10.
(210) DEM 1,00. Source: DPAG press release of 1 August 1997 as published on DPAG's website.
(211) DEM 0,88.
(212) DPAG reply to the Statement of Objections, pp. 38-39.
(213) General Motors, loc. cit.; United Brands v Commission, loc. cit.
(214) REIMS II. The parties undertook to introduce, by the end of 1999, a transparent cost accounting system.
(215) REIMS II.
(216) REIMS II, paragraph 86.
(217) "Modelling and Quantifying Scenarios for Liberalisation", study carried out by FMD Ltd for the Commission, February 1999, p. 44.
(218) The Nordic agreement was notified to the Commission on 30 March 2000 (Case COMP/37.848. The bilateral agreement on terminal dues was notified by Sweden Post and PTT Post on 8 July 1998 (Case COMP/37.142). The case was closed subsequent to the Commission's sending to the parties, on 18 September 1998, an administrative letter indicating the non-applicability of Article 81 of the EC Treaty.
(219) REIMS II, paragraph 88.
(220) DEM 0,77.
(221) Höfner und Elser, loc. cit., paragraph 30.
(222) See Joined Cases 40-48, 50, 54-56, 111, 113 and 114-173 Coöperative Vereniging (Suiker Uni) UA and Others v Commission [1975] ECR 1663, at paragraphs 398, 526; Joined Cases C-241/91 P and C-242/91 P Radio Telefis Eirann (RTE) and Independent Television Publications Ltd (ITP) v Commission [1995] ECR I-743.
(223) DPAG reply to the Statement of Objections, p. 39.
(224) Suiker Uni, loc. cit., paragraph 526.
(225) Commission Decision 82/861/EEC British Telecommunications, Case COMP/29.877 (OJ L 360, 21.12.1982. p. 36), at paragraph 30.
(226) British Telecommunications, loc. cit., paragraph 34.
(227) Commission Decision 88/589/EEC London European/Sabena, Case COMP/32.318 (OJ L 317, 24.11.1988, p. 47), at paragraphs 29-30.
(228) Underlining by the Commission. GZS & Citicorp, loc. cit., paragraphs 59-60.
(229) DPAG reply to the Statement of Objections, p. 40.
(230) See section I.B. above.
(231) See section I.E., subsection "Gant - The 1996 autumn catalogue", above.
(232) See section I.F above.
(233) See section I.G - "Undertaking", above. According to point (iv) of DPAG's undertaking, the latter will enter into force three months after the Commission's decision has been notified to DPAG.
Cite this act
