Nexive Commerce Srl and Others v Autorità per le Garanzie nelle Comunicazioni and Others (C-226/22)

Contents

Judgment of the Court (Fifth Chamber)7 September 2023^note(Reference for a preliminary ruling — Postal services in the European Union — Directive 97/67/EC — Fourth indent of the second subparagraph of Article 9(2) and Article 9(3) — Article 22 — Undertakings in the postal sector — Contribution to the operational costs of the regulatory authority for the postal sector — Obligation — Financial burden borne exclusively by market participants, without distinction according to the type of services provided — Principles of proportionality and non-discrimination)In Case C‑226/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 22 March 2022, received at the Court on 31 March 2022, in the proceedingsNexive Commerce Srl,Nexive Scarl,Nexive Services Srl,Nexive Network Srl,Nexive SpA,General Logistics Systems Enterprise Srl,General Logistics Systems Italy SpAvAutorità per le Garanzie nelle Comunicazioni,Presidenza del Consiglio dei Ministri,Ministero dell’Economia e delle Finanze,Ministero dello Sviluppo economico,andBRT SpAvAutorità per le Garanzie nelle Comunicazioni,Presidenza del Consiglio dei Ministri,Ministero dell’Economia e delle Finanze,andAICAI – Associazione Italiana Corrieri Aerei Internazionali,DHL Express (Italy) Srl,TNT Global Express Srl,United Parcel Service Italia Srl,Fedex Express Italy Srl,Federal Express Europe Inc. Filiale ItalianavAutorità per le Garanzie nelle Comunicazioni,Presidenza del Consiglio dei Ministri,Ministero dell’Economia e delle Finanze,Ministero dello Sviluppo economico,intervening parties:Nexive SpA,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, D. Gratsias (Rapporteur), M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– BRT SpA, by E. Fumagalli, A. Manzi, and L. Scambiato, avvocati,– AICAI – Associazione Italiana Corrieri Aerei Internazionali, DHL Express (Italy) Srl, TNT Global Express Srl, Federal Express Europe Inc. Filiale Italiana, United Parcel Service Italia Srl, by M. Giordano, avvocato,– General Logistics Systems Enterprise Srl and General Logistics Systems Italy SpA, by M. Giordano, avvocato,– the Italian Government, by G. Palmieri, acting as Agent, and by E. De Bonis and de B.G. Fiduccia, avvocati dello Stato,– the Belgian Government, by P. Cottin and J.-C. Halleux, acting as Agents,– the Greek Government, by V. Baroutas and K. Boskovits, acting as Agents,– the Lithuanian Government, by K. Dieninis and S. Grigonis, acting as Agents,– the Portuguese Government, by P. Barros da Costa, A. Pimenta, J. Ramos, acting as Agents, and by S. Gonçalves do Cabo, advogado,– the Norwegian Government, by I. Collett, V. Hauan and L. Tvedt, acting as Agents,– the European Commission, by L. Malferrari and M. Mataija, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 23 March 2023,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 9(2) and (3) and of Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3; ‘Directive 97/67’), and of the principles of proportionality and non-discrimination.

2The request has been made in proceedings between Nexive Commerce Srl and other economic operators providing express mail services (‘Nexive Commerce and Others’), on the one hand, and the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) (‘AGCOM’), the Presidenza del Consiglio dei Ministri (President of the Council of Ministers, Italy), the Ministero dell’Economia e delle Finanze (Ministry of Economic Affairs and Finance, Italy) and the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy), on the other, as regards Decisions Nos 182/17/CONS, 427/17/CONS and 528/18/CONS, by which AGCOM established, for the years 2017 to 2019, the amount and manner of payment of the contribution payable by entities operating in the postal services sector for the purposes of financing its operational costs (‘the contested decisions’).

Legal context

European Union law

Directive 97/67

3Recital 39 of Directive 97/67 states:‘Whereas, in order to ensure the proper functioning of the universal service and to ensure undistorted competition in the non-reserved sector, it is important to separate the functions of the regulator, on the one hand, and the operator, on the other; whereas no postal operator may be both judge and interested party; whereas it is for the Member State to define the statute of one or more national regulatory authorities [(“the NRAs”)], which may be chosen from public authorities or independent entities appointed for that purpose’.

4Article 1 of the directive provides:‘This Directive establishes common rules concerning:…– the creation of independent [NRAs].’

5Article 9 of that directive provides:1. For services which fall outside the scope of the universal service, Member States may introduce general authorisations to the extent necessary to guarantee compliance with the essential requirements.2.For services which fall within the scope of the universal service, Member States may introduce authorisation procedures, including individual licences, to the extent necessary in order to guarantee compliance with the essential requirements and to ensure the provision of the universal service.The granting of authorisations may:– be made subject to universal service obligations,– if necessary and justified, impose requirements concerning the quality, availability and performance of the relevant services,– where appropriate, be subject to an obligation to make a financial contribution to the sharing mechanisms referred to in Article 7, if the provision of the universal service entails a net cost and represents an unfair burden on the universal service provider(s), designated in accordance with Article 4,– where appropriate, be subject to an obligation to make a financial contribution to the national regulatory authority’s operational costs referred to in Article 22,– where appropriate, be made subject to or impose an obligation to respect working conditions laid down by national legislation.Obligations and requirements referred to in the first indent and in Article 3 may only be imposed on designated universal service providers.…3. The procedures, obligations and requirements referred to in paragraphs 1 and 2 shall be transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, made public in advance and based on objective criteria. Member States shall ensure that the reasons for refusing or withdrawing an authorisation in whole or in part are communicated to the applicant and shall establish an appeal procedure.’

6Article 22(1) and (2) of that directive is worded as follows:1. Each Member State shall designate one or more [NRAs] for the postal sector that are legally separate from and operationally independent of the postal operators. Member States that retain ownership or control of postal service providers shall ensure effective structural separation of the regulatory functions from activities associated with ownership or control.…2. The [NRAs] shall have as a particular task ensuring compliance with the obligations arising from this Directive, in particular by establishing monitoring and regulatory procedures to ensure the provision of the universal service. They may also be charged with ensuring compliance with competition rules in the postal sector.…’

Directive 2008/6

7Recital 47 of Directive 2008/6 is worded as follows:‘The role of [NRAs] is likely to remain crucial, in particular in those Member States where the transition to competition still needs to be completed. In accordance with the principle of separation of regulatory and operational functions, Member States should guarantee the independence of the [NRAs], thereby ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States and to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article 295 of the Treaty. [NRAs] should be provided with all necessary resources, in terms of staffing, expertise and financial means, for the performance of their tasks.’

The Authorisation Directive

8Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (JO 2002 L 108, p. 21), repealed as from 21 December 2020 by Article 125 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Recast) (OJ 2018 L 321, p. 36; ‘the European Electronic Communications Code’), provided, in Article 12(1), that article being entitled ‘Administrative charges’:‘Any administrative charges imposed on undertakings providing a service or a network under the general authorisation or to whom a right of use has been granted shall:(a) in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; and(b) be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges.’

The European Electronic Communications Code

9Under Article 16(1) of the European Electronic Communications Code, that article being entitled ‘Administrative charges’:‘Any administrative charges imposed on undertakings providing electronic communications networks or services under the general authorisation or to which a right of use has been granted shall:(a) cover, in total, only the administrative costs incurred in the management, control and enforcement of the general authorisation scheme and of the rights of use and of specific obligations as referred to in Article 13(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; and(b) be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges.Member States may choose not to apply administrative charges to undertakings the turnover of which is below a certain threshold or the activities of which do not reach a minimum market share or have a very limited territorial scope.’

Italian law

10Directive 97/67 was transposed into Italian law by Decreto legislativo n. 261 – Attuazione della direttiva 97/67/EC concernente regole comuni per lo sviluppo del mercato interno dei servizi postali comunitari e per il miglioramento della qualità del servicio (Legislative Decree No 261 transposing 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) of 22 July 1999 (GURI No 182 of 5 August 1999), Article 2(1) of which provided that the NRA for the postal sector was the Ministry of Communications.

11That provision was amended by Article 1 of Decreto legislativo n. 58 – Attuazione della direttiva 2008/6/EC che modifica la direttiva 97/67/EC, per quanto riguarda il pieno Completamento del mercato interno dei servizi postali della Comunità (Legislative Decree No 58 transposing Directive 2008/6/EC amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services) of 31 March 2011 (GURI No 98 of 29 April 2011).

12It is apparent from Article 2(1) of that legislative decree that the National Agency for regulating the Postal Sector was designated as NRA for that sector, within the meaning of Article 22 of Directive 97/67. According to Article 2(12) of that decree, the relevant tasks, formerly carried out by the competent ministry, ‘with the relevant human, financial and operational resources’ were to be transferred to that agency. The operating costs of that agency were to be financed, in part, by a specific fund included into the budget of the Ministry of Economic Development and, in part, by a contribution paid by all operators in the sector.

13The powers of the agency mentioned in the preceding paragraph were transferred to AGCOM by Article 21(13) and (14) of Decreto-Legge n. 201 – Disposizioni urgenti per la crescita, l’equità e il consolidamento dei conti pubblici (Decree-Law No 201 on urgent provisions relating to growth, fairness and the consolidation of public accounts) of 6 December 2011 (GURI No 284 of 6 December 2011), converted into Law No 214 of 22 December 2011.

14According to Article 1(65) and (66) of Legge n. 266 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2006) (Law No 266 on provisions for drawing up the annual and multiannual State budget (Finance Law 2006)) of 23 December 2005 (GURI No 302 of 29 December 2005; ‘Law No 266/2005’):65. From 2007 onwards, the operating expenses of the Communications Regulatory Authority shall, in so far as they are not covered by funding from the State budget, be financed by the relevant sector in the manner laid down in the rules in force. The amount of the contributions shall be determined by decision of the Authority, within the limits provided for by law. The contributions shall be paid directly to that Authority; …66. For the first year of application, 2006, the amount of the contribution to be paid by operators in the communications sector … shall be set at 0.15% of earnings as recorded in the last set of approved company accounts approved before the entry into force of this law. For subsequent years, [AGCOM] may vary the amount and manner of payment of the contribution in accordance with Article 1(65), up to a maximum of 0.2% of earnings as recorded in the last set of approved company accounts before the adoption of the decision.’

15Article 65 of the Decreto-Legge n. 50 convertito con modificazioni dalla L. 21 giugno 2017, n. 96 – Disposizioni urgenti in materia finanziaria, iniziative a favore degli enti territoriali, ulteriori interventi per le zone colpite da eventi sismici e misure per lo sviluppo (Decree-Law No 50 converted, with amendments, by Law No 96 of 21 June 2017 on urgent provisions in terms of finance, initiatives in favour of territorial bodies, additional assistance in favour of areas affected by earthquakes and development measures) of 24 April 2017 (GURI No 95 of 24 April 2017; ‘Decree-Law No 50/2017’) states:‘With effect from 2017, the operating expenses of the [AGCOM] in relation to the tasks of the [NRA] for the postal sector shall be covered exclusively by the detailed rules referred to in the second sentence of Article 1(65) and (66) of Law [No 266/2005], referring to revenue generated by operators in the postal sector. …’

The dispute in the main proceedings and the questions referred for a preliminary ruling

16By the contested decisions, AGCOM identified the persons liable for payment and the method of calculating the contribution referred to in Article 1(65) and (66) of Law No 266/2005 for 2017 to 2019 respectively.

17It is clear from those decisions that ‘the universal postal service provider and persons holding a licence or general authorisation’ for the purposes of the Legislative Decree which transposed Directive 97/67, are liable to pay that contribution. Next, those decisions designate the basis of assessment for the contribution as being the earnings of the undertakings liable for payment. Finally, the applicable rate was 0.14% for 2017 and 2018 and 0.135% for 2019. According to the referring court, the application of that rate would make it possible to cover all the annual expenditure which AGCOM planned to incur for the purposes of the regulation of that market during each of those years.

18Nexive Commerce and Others, which are mainly companies providing express mail services within the Italian market, brought actions before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) seeking annulment of the contested decisions.

19Those actions having been dismissed at first instance, Nexive Commerce and Others brought appeals against the judgments at issue before the referring court. In support of their appeals, they submit (i) that it is apparent from Article 9(2) and Article 22 of Directive 97/67 that the operational costs of that authority attributable to its activities relating to the postal sector must be co-financed by market operators and from the State budget; (ii) that Article 9(2) of the directive allows only ‘operational costs’ to be charged to those operators, that is to say, only direct costs strictly linked to the performance of the regulatory tasks for that sector falling within the universal service; and (iii) that the contested decisions do not comply with Article 9(2) of the directive in that they are not based on a specific assessment and do not take account of the earnings situation of the operators liable to pay the contribution, or of the market situation or, finally, of the fact that the activity of certain undertakings does not require any regulatory involvement.

20For its part, before the referring court, AGCOM contends, first, that the provisions applicable in the present case did not in any way require co-financing and that the part of the operational costs of that authority covered by the State could, for each year under consideration, be equal to zero. By contrast, it argues that the system is based on the need to guarantee the necessary independence and autonomy of NRAs vis-à-vis the government. The requirement, laid down in Article 22(1) of Directive 97/67, that those NRAs must be operationally independent of regulated operators, concerns not the financing of those authorities but the performance of their tasks. Secondly, with regard to the scope of Article 9(2) of that directive, it claims that the Court held that the possibility for a Member State to make the granting of the authorisations which it issues subject to the obligation to make a financial contribution to the operational costs of the competent NRA concerns authorisations to provide postal services falling within both the universal service and express mail services. Thirdly and lastly, it argues that the costs of ‘cross-sector’ services borne by the NRAs must be regarded as falling within the concept of ‘operational costs’ within the meaning of Article 9(2) of that directive.

21In those circumstances, the Consiglio di Stato (Council of State, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must the fourth indent of the second subparagraph of Article 9(2), Article 9(3) and Article 22 of Directive [97/67] be interpreted as meaning that they preclude national legislation, such as that laid down in Italian law (in Article 1(65) and (66) of [Law No 266/2005] and Article 65 of Decree-Law [No 50/2017]), that makes it possible to place the obligation to contribute financially to the operating costs of the [NRA] for postal services exclusively on postal service providers, including those not providing services falling within the scope of the universal service, thereby allowing the possibility of excluding any form of public co-financing from the national budget?(2) Must the fourth indent of the second subparagraph of Article 9(2) and Article 22 of Directive [97/67] be interpreted as meaning that they make it possible to include, in the costs that can be financed by postal service operators, costs to be incurred for regulatory activities concerning postal services outside the scope of the universal service, and costs for administrative and policy-making structures (“cross-sector” structures) whose activity, although not directly aimed at regulating the postal services markets, nevertheless contributes to the performance of all [AGCOM]’s institutional tasks, with the consequent possibility that they might be indirectly and partially (pro rata) allocated to the postal services sector?(3) Do the principles of proportionality and non-discrimination, the fourth indent of the second subparagraph of Article 9(2), Article 9(3) and Article 22 of Directive [97/67] preclude national legislation, such as the Italian provisions (laid down in Article 1(65) and (66) of [Law No 266/2005] and Article 65 of Decree-Law [No 50/2017]), imposing an obligation on postal sector providers to contribute to the financing of the [NRA] for the postal sector, without any possibility of distinguishing the position of express courier service providers from that of universal service providers and, therefore, without any possibility of appreciating the different intensity of the regulatory activities carried out by the [NRA] in relation to the different types of postal services?’

Consideration of the questions referred

22The fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 allows Member States, ‘where appropriate’, to make the granting of authorisations to operators in the postal sector ‘subject to an obligation to make a financial contribution to the … operational costs’ of the NRAs in the sector. All of the present questions concern, in essence, the scope of that obligation to contribute to the financing of the ‘operational costs’ of the NRAs in that sector. The latter concept is the subject of the second question referred for a preliminary ruling, which should therefore be examined first.

The second question

23By its second question, the referring court asks, in essence, whether the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, read in conjunction with Article 22 of that directive, must be interpreted as meaning that the concept of ‘operational costs’ in the first of those provisions include, in the first place, the costs incurred by the NRAs in the postal sector for the purposes of their regulatory activities relating to postal services which fall outside the scope of the universal service and, in the second place, the costs generated by the activities of those NRAs which, while not directly linked to their regulatory task, contribute to the performance of the institutional powers of those authorities as a whole, namely the costs incurred by those NRAs as a result of their administrative and institutional activities, which are preparatory or necessary for the performance of their regulatory activities (‘the cross-sector costs’).

24In that regard, it should be noted that, in accordance with the wording of the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, the obligation which Member States may introduce under that provision relates to the financing of the operational costs of the NRA referred to in Article 22 of that directive, namely the NRA that each Member State must designate for the postal sector, in particular to ensure compliance with that directive.

25That said, that directive does not define the concept of ‘operational costs’. In particular, the fourth indent of the second subparagraph of Article 9(2) of that directive is, in that regard, drafted in particularly general terms. It should also be noted, as the Advocate General did in point 31 of his Opinion, that recourse to the different language versions of that directive does not provide any guidance capable of shedding further light on the interpretation of that concept.

26According to the case-law, where the wording of a provision of a directive does not in itself settle a question referred by the referring court, it is necessary, for the purposes of interpreting that provision, to have regard to its context, the general scheme and the aim of that directive (see, to that effect, judgment of 12 November 2019, Haqbin, C‑233/18, EU:C:2019:956, paragraph 42 and the case-law cited).

27As regards, more specifically, the first part of the second question, the Court has already had occasion to state that the activities incumbent on the NRAs in the postal sector concern that sector as a whole and not solely the provision of services falling within the scope of the universal service. Therefore, given that the activities of NRAs, which are responsible, as is apparent from Article 22(2) of Directive 97/67, for ensuring compliance with the obligations arising from that directive and with competition rules in the postal sector, concern that sector as a whole and given that the EU legislature intended the role and tasks of those authorities as having to be of benefit to all operators in the postal sector, the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 must be interpreted as meaning that all postal service providers, including those which do not provide postal services falling within the scope of the universal service, may, in return, be made subject to the obligation to contribute to the financing of those authorities (judgment of 16 November 2016, DHL Express (Austria), C‑2/15, EU:C:2016:880, paragraphs 29, 31 and 32).

28According to the Court’s case-law, haulage, freight-forwarding and express mail undertakings providing services involving the clearance, sorting, transport and distribution of postal items constitute ‘postal service providers’ within the meaning of that directive, except where their business is limited to the transport of postal items (judgment of 31 May 2018, Confetra and Others, C‑259/16 and C‑260/16, EU:C:2018:370, paragraph 41). Although express mail services are distinguished from the universal postal service through the added value which they bring to the customers, for which the customers agree to pay more, in the absence of any indication to the contrary and having regard to the obligation at issue, the fourth indent of the second subparagraph of Article 9(2) of that directive cannot be interpreted as excluding operators of those services from its scope ratione personae (see judgment of 15 June 2017, Ilves Jakelu, C‑368/15, EU:C:2017:462, paragraph 24 and the case-law cited).

29Thus, in the light of that overall conception of the tasks devolved to the NRAs in the postal sector and the advantages which may be derived therefrom for all operators in that sector, the concept of ‘operational costs’ must be interpreted as including, among the costs which may be financed by postal service providers, the costs incurred by the NRAs responsible for the sector for the purposes of their tasks relating to the regulation of services falling within the scope of the universal service and those relating to services outside that scope.

30As regards the second part of the second question, it should be noted, first, that, in the light of what has been stated in paragraph 25 above, there is nothing in either the context or the general scheme of Directive 97/67 that is capable of restricting the scope of the concept of ‘operational costs’, referred to in the fourth indent of the second subparagraph of Article 9(2) of that directive, to the effect that that concept does not include cross-sector costs.

31As the Advocate General observes, in essence, in points 34 to 41 of his Opinion, the interpretation of that concept cannot, moreover, be guided by the interpretation of the concept of ‘administrative costs’ referred to in the regulatory framework governing electronic communications, mentioned in the order for reference.

32In that regard, Article 16 of the European Electronic Communications Code identifies the costs associated with regulating the electronic communications market that may be covered by administrative charges imposed on undertakings providing electronic communications networks or services. More specifically, under Article 16(1)(a), the charges referred to therein cover, in total, only the administrative costs incurred in the management, control and enforcement of the general authorisation scheme and of the rights of use and of specific obligations that may be imposed on those undertakings, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection.

33It is with regard to Article 12(1) of the Authorisation Directive, the scope of which is essentially identical to that of Article 16(1)(a) of its successor, the European Electronic Communications Code, that the Court held that it did not preclude national legislation pursuant to which undertakings operating in the telecommunications sector were liable to pay a charge intended to cover all the costs incurred by the NRA responsible for the sector which are not financed by the State, provided that that charge was exclusively intended to cover the costs relating to the activities mentioned in that provision, and that the totality of the income obtained in respect of that charge did not exceed the total costs relating to those activities (see, to that effect, judgment of 18 July 2013, Vodafone Omnitel and Others, C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12, EU:C:2013:495, paragraph 43, and order of 17 October 2013, Sky Italia, C‑376/12, EU:C:2013:701, paragraph 34 and the case-law cited).

34First, it must be stated that, unlike the provisions referred to in the two preceding paragraphs, which list precisely the costs which may be covered by the charges imposed on undertakings operating in the sectors concerned, the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 is drafted in general terms without distinguishing according to the origin or nature of the costs involved in the operation of NRAs.

35Secondly, that literal interpretation is consistent with the objective pursued by Directive 2008/6, from which the current wording of the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 stems, to ensure that NRAs are provided with ‘all necessary resources, in terms of staffing, expertise and financial means, for the performance of their tasks’.

36Accordingly, in the light of the foregoing considerations, the answer to the second question is that the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, read in conjunction with Article 22 of that directive, must be interpreted as meaning that the concept of ‘operational costs’ in the first of those provisions includes, in the first place, the costs incurred by the NRAs in the postal sector for the purposes of their regulatory activities relating to postal services which fall outside the scope of the universal service and, in the second place, the costs generated by the activities of those NRAs which, while not directly linked to their regulatory task, contribute to the performance of their function of regulating the postal sector.

The first question

37By its first question, the referring court asks, in essence, whether the fourth indent of the second subparagraph of Article 9(2) and Article 9(3) of Directive 97/67, read in conjunction with Article 22 of that directive, must be interpreted as precluding a system for financing NRAs responsible for the postal sector which relies solely on the contributions imposed on operators in that sector under Article 9, to the exclusion of any public funding.

38In that regard, first, it cannot be inferred from the mere use of the verb ‘contribute’ in the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67 that that provision provides only for the possibility of requiring operators in the postal sector merely to participate in the financing of the operational costs of the NRAs in that sector. Although the verb ‘contribute’ may be understood as referring to the action of participating in a joint project, it does not necessarily imply financing from the State budget. On the contrary, in view of the very general wording of that provision, it must be inferred that the Member States are given broad discretion in that provision as regards the identification of the sources of the system for financing the NRAs responsible for the postal sector.

39As the Advocate General observes, in essence, in point 53 of his Opinion, Article 9 of Directive 97/67 leaves it to the Member States to choose between a system of financing based exclusively on the charges imposed on postal operators, a system of financing from the State budget or, lastly, a hybrid system of co-financing NRAs in the postal sector, both by means of contributions from operators in that sector and from the budget of the Member State concerned. Paragraph 3 of that article merely states, in that regard, that the obligations referred to in paragraph 2 of that article are to be transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, made public in advance and based on objective criteria.

40Secondly, as regards the context of the provision referred to in the preceding paragraph, it must be noted that Article 1 of Directive 97/67, while stating that it establishes common rules concerning, inter alia, the creation of the NRAs for the sector concerned, does not provide any further details as to the rules governing their method of financing.

41No other provision of that directive calls into question the conclusion reached in paragraph 39 above or, more specifically, the compatibility with Directive 97/67 of a system of financing NRAs responsible for the postal sector funded exclusively by means of contributions from operators in that sector.

42It is true that Article 22 of the directive requires the Member States to designate NRAs that are operationally independent of the postal operators. However, it must be noted, as the Advocate General did in point 58 of his Opinion, that, in so far as an NRA actually has the financial resources to enable it to carry out its tasks and shield itself from any undue influence from both market players and State authorities, the method and sources of its funding are not, as such, decisive.

43Thirdly and lastly, the aim of the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, as referred to in paragraph 35 above, does not preclude that article from being interpreted as allowing Member States to opt for a method of financing NRAs in the postal sector exclusively by means of contributions from operators in that sector, provided that it is ensured that those NRAs have the necessary resources for their proper functioning and, therefore, the legal means to require payment thereof from those operators.

44In the light of the foregoing considerations, the answer to the first question is that the fourth indent of the second subparagraph of Article 9(2) and Article 9(3) of Directive 97/67, read in conjunction with Article 22 of that directive, must be interpreted as not precluding a Member State from opting for a mechanism of financing the NRA responsible for the postal sector funded exclusively by means of contributions imposed on operators in that sector under the fourth indent of the second subparagraph of Article 9(2) of that directive, to the exclusion of any funding from the State budget, provided that that system ensures that the NRA concerned will actually have the necessary resources to ensure its proper functioning and the performance, in complete independence, of its tasks relating to the regulation of the postal sector or the legal means to acquire those resources.

The third question

45By its third question, the referring court asks, in essence, whether EU law, in particular the principles of proportionality and non-discrimination as well as the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, must be interpreted as precluding the imposition of a financial contribution obligation on all operators in the postal sector, including on providers of express mail services, in a uniform manner, without taking into account the allegedly varying degree of intensity of the regulatory activity of the NRA to which they are subject, depending on whether or not the services which they provide fall within the scope of the universal service.

46In that regard, it must be noted that Directive 97/67 does not lay down any specific method for calculating the amount of the contribution at issue. However, as observed in paragraph 39 above, such a contribution obligation, imposed under the fourth indent of the second subparagraph of Article 9(2) of that directive, must, in accordance with paragraph 3 of that article, not only be transparent, accessible, precise, unambiguous, made public in advance and based on objective criteria, but also comply with the principles of non-discrimination and proportionality.

47As regards, in the first place, the proportionality of a contribution obligation imposed under the fourth indent of the second subparagraph of Article 9(2) in a uniform manner on all operators in the postal sector, it must be borne in mind that it is for the referring court to determine, when carrying out an overall assessment of all the relevant facts and legal issues, whether that obligation is appropriate for the purpose of ensuring the attainment of the objectives pursued and does not go beyond what is necessary to attain them. Nevertheless, it is for the Court to provide the referring court with all the points of interpretation of EU law that will enable it to rule in the case (judgment of 31 May 2018, Confetra and Others, C‑259/16 and C‑260/16, EU:C:2018:370, paragraph 49 and the case-law cited).

48As regards, first, whether such an obligation is appropriate for the purpose of attaining the objective pursued, it is the Court’s settled case-law that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (judgment of 31 May 2018, Confetra and Others, C‑259/16 and C‑260/16, EU:C:2018:370, paragraph 50 and the case-law cited).

49That being said, in the present case, it is not disputed that the measure at issue, consisting of imposing in a uniform manner, on all operators in the postal sector, the same financing obligation and, in particular, the same contribution rate, without account being taken of the degree of intensity of the NRA’s regulatory activity with regard to the services provided by each operator, is appropriate for the purpose of attaining the objective pursued or that the national legislation pursues that objective consistently. Moreover, since the objective of that national measure is, in essence, to ensure that the NRA concerned has a financial basis that is as broad as possible, such as to enable it to fulfil its tasks in complete independence, that measure must, in principle, be regarded as appropriate for attaining that objective.

50Secondly, that measure cannot be regarded as going beyond what is necessary to attain the objective pursued merely because, for the purposes of calculating the contribution at issue, no account is taken of, as the case may be, the higher degree of intensity of that NRA’s activity as regards services falling within the scope of the universal service.

51It is true that, as the European Commission states in its observations, the regulation of the universal service involves taking specific measures and, in certain contexts, intense monitoring by the NRA concerned. The fact remains that that activity is no different from the other activities of such an NRA aimed at regulating the market concerned as a whole and must therefore be considered in the overall context of the liberalisation of the postal sector. In that regard, in view of the development of that sector, it cannot be ruled out that the various operators are likely to carry out increasingly similar activities and that, as the Portuguese Government points out in its written observations, postal services are interchangeable.

52Thus, in the light of the discretion referred to in paragraph 38 above, the principle of proportionality and the fourth indent of the second subparagraph of Article 9(2) and Article 9(3) of Directive 97/67 cannot be interpreted as meaning that there must be a precise correlation between the amount of the contribution imposed on an operator and the costs actually incurred by the NRA concerned as a result of its regulatory activity vis-à-vis that operator.

53As regards, in the second place, the prohibition of discrimination, it is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (judgment of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 41 and the case-law cited).

54Although, as noted in paragraph 28 above, express mail services are distinguished from the universal postal service through the added value they provide to customers, it cannot be inferred from this that the providers of such services are, from the point of view of their possible obligation to contribute to the financing of the operating costs of the NRAs responsible for the postal sector under the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, in a situation which justifies treatment different from that accorded to other operators in that sector.

55That is the case, more generally, in the light of the considerations set out in paragraph 51 of the present judgment, for operators who do not provide services falling within the scope of the universal service, whose situation does not, in itself, justify treatment different from that accorded to those who provide such services. In view of the benefits that all operators in the postal sector derive from the overall activity of such an NRA, it must be considered that they are, as a rule, in comparable situations, irrespective of the nature of the services provided by each operator.

56It should, in any event, be pointed out that the comparability of two situations must be assessed in the light, inter alia, of the purpose of the measure which makes a distinction between them or, inversely, treats them in the same way (see, by analogy, judgment of 1 March 2011, Association belge des Consommateurs Test-Achats and Others, C‑236/09, EU:C:2011:100, paragraph 29).

57In the light of the objective pursued by the measure at issue in the main proceedings, as identified in paragraph 49 of the present judgment, operators who do not provide services falling within the scope of the universal service and those who provide such services must be regarded as being in a comparable situation.

58Accordingly, and subject to an overall assessment of all the relevant legal and factual circumstances, which it is for the referring court to carry out, legislation such as that at issue in the main proceedings cannot be regarded as being contrary to the principle of non-discrimination.

59In the light of the foregoing considerations, the answer to the third question is that EU law, and in particular the principles of proportionality and non-discrimination and the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, must be interpreted as not precluding national legislation which, in order to ensure that the NRA responsible for the postal sector has financing such as to enable it to perform its tasks relating to the regulation of that sector in complete independence, imposes, in a uniform manner, on all operators in that sector an obligation to contribute to the financing of the operating costs of that NRA without taking account of the intensity of the regulatory and monitoring tasks carried out according to the different types of postal services and without making a distinction, to that end, between universal postal service providers and express mail operators, provided that the obligation imposed by that legislation on those operators is, in addition, transparent, accessible, precise and unambiguous, that it is made public in advance and that it is based on objective criteria.

Costs

60Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fifth Chamber) hereby rules:

1.The fourth indent of the second subparagraph of Article 9(2) and Article 9(3) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, read in conjunction with Article 22 of Directive 97/67, as amended,must be interpreted as not precluding a Member State from opting for a mechanism of financing the national regulatory authority responsible for the postal sector funded exclusively by means of contributions imposed on operators in that sector under the fourth indent of the second subparagraph of Article 9(2) of that directive, as amended, to the exclusion of any funding from the State budget, provided that that system ensures that the national regulatory authority concerned will actually have the necessary resources to ensure its proper functioning and the performance, in complete independence, of its tasks relating to the regulation of the postal sector or the legal means to acquire those resources.

2.The fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, as amended by Directive 2008/6, read in conjunction with Article 22 of Directive 97/67, as amended,must be interpreted as meaning that the concept of ‘operational costs’ in the first of those provisions includes, in the first place, the costs incurred by the national regulatory authorities in the postal sector for the purposes of their regulatory activities relating to postal services which fall outside the scope of the universal service and, in the second place, the costs generated by the activities of those authorities which, while not directly linked to their regulatory task, contribute to the performance of their function of regulating the postal sector.

3.EU law, and in particular the principles of proportionality and non-discrimination and the fourth indent of the second subparagraph of Article 9(2) of Directive 97/67, as amended by Directive 2008/6,must be interpreted as not precluding national legislation which, in order to ensure that the national regulatory authority responsible for the postal sector has financing such as to enable it to perform its tasks relating to the regulation of that sector in complete independence, imposes, in a uniform manner, on all operators in that sector an obligation to contribute to the financing of the operating costs of that authority without taking account of the intensity of the regulatory and monitoring tasks carried out according to the different types of postal services and without making a distinction, to that end, between universal postal service providers and express mail operators, provided that the obligation imposed by that legislation on those operators is, in addition, transparent, accessible, precise and unambiguous, that it is made public in advance and that it is based on objective criteria.