On 11 February 2015, the Court of Justice of the EU rendered an important decision in response to a preliminary question submitted by the Brussels Court of Appeal in the context of a dispute between bpost and the Belgian Institute for Postal Services and Telecommunications (“BIPT”) on the admissibility of the "per sender" tariff model.
The “per sender” tariff model, as applied by bpost, entails calculating commercial discounts to be granted to clients (both direct customers and mail handlers) on a “per sender” basis (meaning that the separate volumes of various senders of the mail handlers are taken into account instead of the total volumes deposited with bpost).
On 20 July 2011, the BIPT ruled that the “per sender” tariff model gave rise to discrimination between bpost's direct customers and the mail handlers and constitutes an infringement of Directive 97/67/EC on the development of the internal market of Community postal services. The BIPT extensively relied on the judgment rendered by the Court of Justice in 2008 in the Deutsche Post case.
Bpost applied to the Cour d’appel de Bruxelles (Brussels Court of Appeal) for the annulment of BIPT’s decision. On 12 June 2013, the Brussels Court of Appeal decided to refer the case to the Court of Justice and asked three preliminary questions in order to verify whether the “per sender” model complies with the tariff provisions of the European Postal legal framework.
In its judgment of 11 February, the Court of Justice took a diverging view from that in the Deutsche Post case by ruling that the non-discrimination principle from the European Postal Directive does not preclude a postal operator from applying a system of discounts per sender, as applied by Bpost.
The Court considered that the “per sender” model did not entail any discrimination between direct customers and mail handlers as these two categories are not in a comparable situation “as regards the objective pursued by the system of quantity discounts per sender, which is to stimulate demand in the area of postal services, since only bulk mailers are in a position to be encouraged, by the effect of that system, to increase the volume of their mail handed on to bpost and, accordingly, the turnover of that operator”. Consequently, the different treatment given to those two categories of client which follows from the application of the system of quantity discounts per sender does not constitute discrimination.