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The bpost Ruling: An ‘Unsuccessful’ Attempt to Square the Circle. The ne bis in idem Principle Standing Between Regulatory and Competition Law

Georgios Malos


This article provides an assessment of the recent preliminary ruling of the Court of Justice of the European Union (CJEU) in the bpost case (C-340/13) issued on 11 February 2015. The CJEU had been asked to rule on the implementation of the principle of non-discrimination laid down in Article 12 of the Directive 97/67/EC on common rules in the market for postal services. The author displays the highly significant aspects and the specific framework of the ruling while highlighting the distinctive features of the main proceedings. Further, the author assesses the approach of the CJEU towards the implementation of allegedly discriminatory rules by the Belgian postal incumbent through the lens of regulatory law and its impact – if any – on a potential competition law related assessment. On this basis the application of the ne bis in idem principle is also examined in the light of the interplay between regulatory and competition law as reflected in the relevant decision of the Belgian Competition Council (BCC) that assessed the same market conduct of bpost as the Belgian regulator IBPT did in the main proceedings. Last, the scope of the binding effect of the bpost ruling is put under scrutiny. The article concludes that the CJEU moved within the boundaries of its jurisdiction; therefore, it was not entitled to provide a ruling based on considerations distinct to those already enshrined in the regulatory framework established by the Directive 97/67/EC. Any competition law assessment was rightfully granted a secondary role.

Attorney-at-law, Athens Bar, Mayer Brown, Brussels.

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