2002/180/EC: Commission Decision of 5 December 2001 relating to a proceeding under Article 82 of the EC Treaty (COMP/37.859 — De Post-La Poste) (notified under document number C(2001) 3644 CORR.) (Text with EEA relevance)

Article 2

In view of the infringement referred to in Article 1, a fine of EUR 2,5 million is hereby imposed on La Poste.
The fine shall be paid in euro, within three months of the date of notification of this Decision, into bank account No 642-0029000-95 (IBAN code: BE 76 6420 0290 0095; SWIFT code: BBVABEBB) held by the European Commission at the Banco Bilbao Vizcaya Argentaria BBVA, Avenue des Arts 43, B-1040 Brussels.
After the expiry of that period, interest shall automatically be payable at the rate applied by the European Central Bank to its repo operations on the first day of the month in which this Decision is adopted, plus 3,5 percentage points, namely 6,77 %.

Article 3

This Decision is addressed to De Post-La Poste, Centre Monnaie, B-1000 Brussels.
This Decision shall be enforceable pursuant to Article 256 of the EC Treaty.
Done at Brussels, 5 December 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) DX is the generic name of the document exchange service provided by Hays DX.
(5) See Hays's comments of 25 January 2001, p. 2.
(6) Moniteur Belge ed. 2 of 18 August 1999, 30697(30713).
(7) See profit and loss account in La Poste's Annual Report, 1999.
(8) Agreement between La Poste and Key Mail of 24 January 2000, Annex 11 to La Poste's comments of 21 November 2000.
(9) Business secrets.
(10) See Article 7 of the agreement between La Poste and Key Mail, Annex 11 to La Poste's comments of 21 November 2000.
(11) The term "business-to-private mail" is used in this Decision to designate the general letter post service market as defined in recital 37.
(12) This fact is not contested by La Poste and ABB; see, for example, the agreement between La Poste and Key Mail under "Rétroactes".
(13) See Annex 2 to Hays's comments of 4 April 2001 (agreement of 14 June 1982).
(14) See Annexes 3 and 4 to Hays's comments of 4 April 2001.
(15) The Hays DX service is the successor to a network set up by the UPEA for the mutual exchange of documents between large insurance companies in Belgium; hence the leading part played by large insurance companies in the maintenance of the Hays DX system: according to Hays's comments of 25 January 2001, point 54, the large insurance companies are the DX system's main customers, the 11 largest accounting for 40 % of the total turnover achieved with the 167 companies subscribing to the system.
(16) See in Annex 2 to the complaint of 7 April 2000 the 1997/1998 and 2000 directories of the DX service in Belgium.
(17) As stated in Article 1(7) of the membership rules, the exact timetable is forwarded once the DX account is opened (this concerns the 17.30 limit, which may be extended to, say, 18.00 depending on the exchange). Friday's mail is collected on Saturday and distributed on Monday.
(18) See Article 3(1) of the DX membership and use rules in Annex 2 to the complaint of 7.4.2000. According to Hays, 99 % of items deposited between 17.30 and 18.00 arrive before 09.00 the next day and are therefore delivered within 12 to 15 hours of deposit. Again according to Hays, this speed of service is regularly tested by users of the network.
(19) See the complaint of 7 April 2000, p. 3.
(20) A reduction in the universal postal service tariff is authorised under Article 12 of Directive 97/67/EC of the European Parliament and of the Council provided it is transparent and non-discriminatory.
(21) Annex 1 to La Poste's comments of 21 November 2000. According to La Poste the letter of 19 April 1997 from the UPEA to La Poste was the first document in which the UPEA made this request; see La Poste's comments of 17 August 2001, point 5.
(22) Item 2 of La Poste's reply of 12 July 2001 to the statement of objections; see also Annex 8 to La Poste's comments of 21 November 2000.
(23) See the annexes to the UPEA's fax message to Hays dated 19 November 1997, Annex 2 to Hays's comments of 16 October 2000.
(24) See the description of the "main elements" of a "business mail exchange network" in the UPEA's fax message to Hays of 19 November 1997, Annex 2 to Hays's comments of 16 November 2000 and Annex 3 to Hays's comments of 24 July 2001. In its comments of 9 August 2001, at point 4, La Poste disputes the claim that the document entitled "Main elements of the business mail exchange network" emanated from La Poste. According to La Poste, it "would appear that this page has been taken from the original proposal which Key Mail presented on its own". However, La Poste does not deny that the UPEA, be it the author of this document or not, used the document in order to clarify its expectations and the requirements of the insurance companies vis-à-vis Hays.
(25) See the agreement between La Poste and ABB under "Rétroactes": Key Mail, a company specialising in the reposting and delivery of small parcels within 24 hours, became interested in the sector and made proposals to the insurers and brokers concerned. At the same time La Poste also proposed to take over this business for its own account. See also separate offer by La Poste of 11 August 1997, Annex 1 to La Poste's comments of 21 November 2000.
(26) Letter of 9 February 1998 from La Poste to the UPEA, Annex 4 to Hays's comments of 24 July 2001. This document was submitted by La Poste as an annex to its comments of 14 February 2001.
(27) See document in Annex 7 to Hays's comments of 16 October 2000.
(28) See Article 9 of the 2026 agreement: "The agreement shall be concluded for an initial period of two years. It shall enter into force on 9 April 1998 and shall be renewed tacitly each year starting from the expiry date, 8 April 2000."
(29) Source: UPEA newsletter Assurinfo No 7 of 24 February 2000, p. 4 of Annex to Hays's fax of 13 October 2000.
(30) UPEA letter of 19 May 1998, Annex to La Poste's comments of 14 February 2001.
(31) By its letter of 28 May 1998 La Poste communicated a "joint reply from La Poste and Key Mail" containing "our best tariff offer". The offer related to business-to-business mail "from the insurance industry in the broad sense (companies, brokers and such like)" and did not yet talk of a minimum volume of items (Annex 6 to Hays's comments of 16 October 2000). See also Annex 2 to La Poste's comments of 21 November 2000.
(32) Letter from La Poste dated 28 May 1998, p. 2.
(33) Annex 7 to Hays's comments of 16 October 2000.
(34) Document submitted by La Poste on 14 February 2001. The French version was submitted by Hays in Annex 8 to its comments of 16 October 2000.
(35) The letter of 21 October 1998 was submitted by La Poste as an annex to its comments of 14 February 2001.
(36) The UPEA calls the business-to-business network 'business mail'.
(37) The letter of 30 October 1998 was submitted by La Poste as an annex to its comments of 14 February 2001.
(38) The letter of 12 November 1998 was submitted by La Poste as an annex to its comments of 14 February 2001.
(39) Document submitted by La Poste in Annex 1 to its comments of 14 February 2001.
(40) Document submitted by La Poste in Annex 1 to its comments of 14 February 2001.
(41) See Annex 5 to Hays's comments of 4 April 2001.
(42) With La Poste acting as prime contractor; see La Poste's comments of 21 November 2000, point 15.
(43) See Article 17 of, and Annex 1 to, the 10000-1 agreement between the UPEA and La Poste.
(44) Annex 5 to La Poste's comments of 9 August 2001: "The Assurmail service will therefore cease to exist on 27 June 2001. Consequently, the 2026 and 3026 agreements will continue normally."
(45) La Poste's comments of 9 August 2001, point 33.
(46) Letter from La Poste dated 14 June 2001.
(47) La Poste's reply of 12 July 2001 to the statement of objections, point 58. However, the structural separation of the reserved area and the new business-to-business service offered by eXbo, though creating total transparency in financial relations between the reserved area and the services open to competition, cannot ensure in the long run that La Poste will in future refrain from any tying between monopoly services and services open to competition.
(48) Judgment of the Court of Justice of 23 April 1991 in Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, paragraphs 21 et seq.
(49) The general letter post service concerns the delivery of items of correspondence to the addresses shown on the items; see the Commission notice on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services (OJ C 39, 6.2.1998, p. 2, at point 2.3).
(50) According to the Commission notice on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services (OJ C 39, 6.2.1998, p. 2, at point 2.4), a document exchange does not include the collection and the delivery to the addressee of the postal items transported.
(51) Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraphs 39 and 40, Case 27/76 United Brands [1978] ECR 207, paragraphs 11 and 12, and Case T-30/89 Hilti [1991] ECR II-1439, paragraph 64.
(52) Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 37, and Case T-83/91 Tetra Pak v Commission [1994] ECR II 755, paragraph 63.
(53) See the complaint of 7 April 2000, p. 3.
(54) For the first weight tranche of up to 20 g the formula produces a tariff that is [...] % lower than the ordinary postal tariff: BEF 17 - [...] % = BEF [...] + [VAT] = BEF [...] - [...] % = BEF [...].
(55) See the description of the "main elements" of such a network in the UPEA's fax to Hays dated 19 November 1997, Annex 2 to Hays's comments of 16 October 2000.
(56) On the other hand, pursuant to Article 5(3) of the 10000-1 agreement, La Poste committed itself contractually vis-à-vis the UPEA to comply with certain predetermined times for the distribution and withdrawal of mail covered by the business-to-business agreement. La Poste has therefore made a contractual commitment concerning two additional services within the meaning of the judgment in Case C-320/91 Corbeau [1993] ECR I-2533, at paragraph 19, namely collection from the sender's address and more reliable distribution.
(57) La Poste's reply of 12 July 2001 to the statement of objections, point 79. See also La Poste's comments of 14 February 2001, p. 3.
(58) La Poste's reply of 12 July 2001 to the statement of objections, point 79. See also La Poste's comments of 17 May 2000, point 20, La Poste's comments of 9 August 2001, point 67, the comments of 21 November 2000, points 25, 35 and 150; see also the agreement between La Poste and Key Mail of 24 January 2000, Annex 11 to La Poste's comments of 21 November 2000.
(59) The agreement between La Poste and Key Mail of 24 January 2000, under "Rétroactes", Annex 11 to La Poste's comments of 21 November 2000.
(60) La Poste's comments of 9 August 2001, point 67.
(61) La Poste's reply of 17 May 2000, point 20.
(62) La Poste's comments of 21 November 2000, point 25.
(63) La Poste's comments of 21 November 2000, point 25.
(64) La Poste's comments of 21 November 2000, point 35.
(65) La Poste's comments of 21 November 2000, point 150.
(66) See the UPEA's list of 19 November 1997, Annex 2 to Hays's comments of 16 October 2000; "Pick-up and delivery schedules will be delimited and defined in the light of the desiderata of the parties concerned".
(67) La Poste's reply of 12 July 2001 to the statement of objections, point 76, and its comments of 17 August 2001, point 19.
(68) According to La Poste, 80000 addresses in Belgium which receive on average 15 mail items or more a day in rural areas and 25 mail items or more a day in urban areas benefit daily from an "advance delivery" between 07.00 and 09.00; La Poste's comments of 9 August 2001 in reply to letters from the Commission dated 17 and 31 July 2001 (hereinafter called "La Poste's comments of 9 August 2001"), points 60 and 61.
(69) As indicated clearly by La Poste itself in its reply of 17 May 2000 to the Commission's request for information of 17 April 2000, point 20.
(70) See Hays's comments of 5 March 2001, p. 9, under "schedules compatible with the organisation of the mail".
(71) See Article 19 of the 10000-1 agreement of 27 January 2000 and the description of the back-up under point 6 of the offer by La Poste and Key Mail of 28 May 1998. See also Article 6 of the agreement between La Poste and ABB: "Should La Poste be unable to perform the tasks it has undertaken to perform under the attached agreement (the 10000-1 agreement), Key Mail shall take its place in accordance with the following procedures:...".
(72) Annex 1 to La Poste's comments of 21 November 2000.
(73) La Poste's reply of 12 July 2001 to the statement of objections, point 76.
(74) La Poste's reply of 12 July 2001 to the statement of objections, point 76.
(75) Michelin (see footnote 51), paragraphs 102 to 104.
(76) Michelin (see footnote 51), paragraphs 92 et seq.
(77) See the definition of the relevant market.
(78) La Poste's reply of 12 July 2001 to the statement of objections, points 43 and 110.
(79) La Poste's reply of 12 July 2001 to the statement of objections, point 110: "under the terms of Article 10(2) of the 2026 Agreement, the termination would have taken effect only on 8 April 2001, i.e. two and a half years later, 12 months' notice being applicable as from the end of the initial period" (emphasis added by the Commission).
(80) La Poste's reply of 12 July 2001 to the statement of objections, point 164: "However, the Commission has not established any 'practice' of linkage on the occasion of resumption of the negotiations between La Poste and the UPEA in 1999 or, at least, after La Poste's letter to the UPEA of 5 January 2000...". In its comments of 17 August 2001, point 47, La Poste simply states that "after the letter of 30 October 1998, the lack of any link between the agreements [business-to-business and business-to-private] was stated by La Poste on several occasions, both to the insurance companies and to the brokers" (emphasis added by the Commission). The Commission would emphasise that, since this Decision relates to La Poste's conduct vis-à-vis the UPEA, any clarifications vis-à-vis the companies are not relevant.
(81) La Poste's reply of 12 July 2001 to the statement of objections, point 100.
(82) La Poste's reply of 12 July 2001 to the statement of objections, point 117.
(83) UPEA letter to La Poste of 22 December 1999.
(84) UPEA letter of 12 November 1998, annexed to La Poste's comments of 14 February 2001.
(85) In reply to clear and direct questions put by the Commission in this respect, La Poste confined itself to stating that it did not wish to enter into speculation as to the motives of the staff responsible at La Poste at the material time.
(86) La Poste's reply of 12 July 2001 to the statement of objections, point 163, and La Poste's comments of 17 August 2001, point 41.
(87) La Poste's reply of 12 July 2001 to the statement of objections, point 163; see also La Poste's additional comments of 17 August 2001, point 37.
(88) La Poste's reply of 12 July 2001 to the statement of objections, points 68 to 71, and La Poste's comments of 3 July 2000, points 28 and 29.
(89) Item 12 in La Poste's reply of 12 July 2001 to the statement of objections.
(90) See Hays's complaint of 7 April 2000, p. 4.
(91) See the description of the "principal elements" of a business mail exchange network in the UPEA's fax to Hays of 19 November 1997, Annex 2 to Hays's comments of 16 October 2000.
(92) Article 6 of the agreement between La Poste and Key Mail, Annex 11 to La Poste's comments of 11 November 2000.
(93) La Poste's comments of 14 February 2001, p. 3, La Poste's reply of 12 July 2001 to the statement of objections, point 81, and La Poste's comments of 17 August 2001, point 23.
(94) La Poste's reply of 12 July 2001 to the statement of objections, points 81, 173 and 178.
(95) Economic report submitted by Hays on 24 July 2001, Annex 11 to Hays's comments of 24 July 2001, p. 15.
(96) See footnote 14 in the economic report submitted by Hays as Annex 11 to the comments of 24 July 2001.
(97) See La Poste's comments of 21 November 2000, pp. 7 and 8.
(98) Hays notes that, since the departure of the large accounts, i.e. the 11 largest insurance companies, the "chain reaction" accelerated since there was less and less incentive to remain in a system which has fewer and fewer correspondents to whom documents may be sent and who are likely to send documents back.
(99) See Hays's comments of 25 January 2001, point 55.
(100) See Hays's comments of 25 January 2001, point 54.
(101) See Hays's comments of 25 January 2001, point 54.
(102) See Hays's comments of 25 January 2001, point 54.
(103) See La Poste's letter to the UPEA of 15 July 1998, Annex 2 to La Poste's comments of 21 November 2000. See also Article 17 of the 10000-1 and 10000-2 agreements.
(104) Commission Decision 96/546/EC of 17 July 1996 (Case IV/35.337 - Atlas), OJ L 239, 19.9.1996, p. 23, recital 60.
(105) See Decision 96/546/EC (see footnote 103), paragraph 60.
(106) Michelin (see footnote 51), paragraph 104.
(107) La Poste's reply of 12 July 2001 to the statement of objections, point 86.
(108) La Poste's reply of 12 July 2001 to the statement of objections, point 85.
(109) Case 45/85 Verband der Sachversicherer e.V. v Commission [1987] ECR 405, paragraph 48.
(110) Verband der Sachversicherer (see footnote 108), paragraph 50.

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