IP/08/1467
Brussels, 7th October 2008
Antitrust: Commission requests Slovakia to re-open competition in the hybrid mail sector
The European Commission has decided that recent amendments to Slovakia's postal legislation infringe EC Treaty rules on dominant market positions (Article 82) in conjunction with Article 86. These rules require Member States to ensure that measures concerning public companies or companies to which Member States confer special or exclusive rights comply with all Treaty rules, including the antitrust rules. The Commission's decision is directly legally binding on Slovakia, which must inform the Commission within one month of the measures undertaken to ensure that hybrid mail services remain open to competition. The amendment in question extended the monopoly of the incumbent operator, Slovenská Pošta, to the delivery of hybrid mail services, while this activity had until then been open to competition. As a consequence, Slovak postal operators which had already entered this market are prevented from continuing their activity and their economic viability is endangered. On 18 June 2008, the Commission asked Slovakia to clarify the amendments in question because it had doubts as to their compatibility with EU competition law (see IP/08/969). However, the replies have not dispelled these doubts.
Commissioner Neelie Kroes commented: "To re-monopolise a business activity that had already been successfully liberalised is a step in the wrong direction. Such attempts to benefit incumbent operators by re-monopolising liberalised services harm consumers and businesses, who depend on efficient postal services, and will not be tolerated by the Commission".
Infringement of the competition rules
In the Slovak Republic, the delivery of hybrid mail items was open to competition and several private companies were active on that market. However, on 15 February 2008, the Slovak Republic adopted an amendment to its postal law, reserving the delivery of hybrid mail to the incumbent postal operator, Slovenská Pošta. Since the entry into force of that amendment on 1 April 2008, the delivery of hybrid mail has been re-monopolised to the benefit of Slovenská Pošta. Private operators are prevented from exercising their activity in this field and, as a consequence, incur losses that endanger their viability. Indeed, as a result of the previous liberalisation, hybrid mail services had developed strongly in Slovakia. The re-monopolisation of these services is harming consumers and businesses as they risk losing the advances already achieved.
The European Court of Justice has previously ruled that the extension of a statutory monopoly into neighbouring but competitive markets is as such incompatible with Article 86 in conjunction with Article 82 of the EC Treaty.
However, as foreseen in the Postal Directive, certain postal services may continue to be reserved to the universal service provider if such reservation is necessary for the maintenance of universal service. In this case, the Commission's investigation found that neither the Slovak Republic nor Slovenská Pošta have been able to demonstrate that the restriction of competition is justified. In particular, neither the Slovak Republic nor Slovenská Pošta has been able to demonstrate that the reservation of hybrid mail services to the benefit of Slovenska Posta is necessary to finance the universal postal service.
The Commission has therefore concluded that the return from a liberalised Slovak hybrid mail service market to a monopoly violates Article 82 EC Treaty in conjunction with Article 86 and needs to be undone.
Background on hybrid mail
Hybrid mail is a specific form of postal service where the content is electronically transferred from the sender to the postal service operator who then prints, envelopes, sorts and delivers the postal items. Hybrid mail is an important feature for such companies as banks, insurances and telecommunications undertakings who regularly have to send large amounts of mail (for example invoices).
