As from 2005, the Belgian Competition Council received a number of complaints against Bpost for abuse of its dominant position in the Belgian postal sector. On 10 December 2012, the Competition Council condemned Bpost for having applied between January 2010 and July 2011 an abusive rebate system called “model per sender”. Through that system, Bpost awarded rebates to its largest clients (i.e., direct clients and intermediaries) based on the volume of the mail or on the degree to which the mail was prepared for further treatment by Bpost. However, that system did not apply in the same way to direct clients and intermediaries (i.e., companies working between Bpost and the senders, offering themselves a wide variety of services, such as the preparation, collecting, sorting, transporting and distribution of the mail). Indeed, the intermediaries were not allowed to consolidate the mail they treated for their clients, unless they passed on to Bpost their clients’ identity. When they did so, they received the same rebates as Bpost’s direct clients, but retroactively. This led several intermediaries to lodge complaints with the Competition Council.
One of the particularities of this case is that the intermediaries are not only customers but also competitors of Bpost. Another particularity is that on 20 July 2011, the Belgian postal and telecom regulator(“IBPT”) considered that rebate system incompatible with postal regulations and imposed a fine of EUR 2,300,000 on Bpost. Consequently, one of the arguments invoked by Bpost before the Competition Council was the lack of competence of the Council to apply postal regulations, which fall within the exclusive competence of the IBPT. The Council rejected that claim, considering that competition law fully applies within the postal sector as in any other sector.
The Council found that Bpost had a very high market share on the market for national industrial mail and concluded that Bpost was dominant on this market. It then went on to analyse the alleged abuse. In this context the Council observed that Bpost’s direct clients and intermediaries are both Bpost’s commercial partners and that the services provided to them by Bpost are mainly identical. Then, the Council indicated that within the framework of the contested system, the conditions awarded to the direct clients were more advantageous than those applicable to the intermediaries. Accordingly, the Council identified the existence of a different treatment between Bpost’s direct clients and the intermediaries. In view of the fact that the intermediaries are also Bpost’s competitors, the Council considered that the different treatment identified was not only discriminatory, but also that it had exclusionary effects towards Bpost’s competitors or potential competitors.
Accordingly, the Council considered that the “model per sender” system disadvantaged the intermediaries which were not able to offer the large senders the same conditions as Bpost. It therefore concluded that Bpost abused its dominant position. In view thereof, the Council imposed a fine of EUR 37,399,786 on Bpost. It is noteworthy that the Council reduced the fine in view of the fact that the French competition authority validated a quite similar rebates system applicable in France. The Council also deduced the amount of the fine already imposed by the IBPT since it related to the same rebates system (even though the IBPT’s decision was based on postal regulations and not on competition law).