COMMISSION IMPLEMENTING DECISION (EU) 2023/1228

26.6.2023 | EN | Official Journal of the European Union | L 160/33 ---|---|---|--- * * * COMMISSION IMPLEMENTING DECISION (EU) 2023/1228 of 7 June 2023 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to the award of contracts for the activity related to express parcel delivery services in Lithuania (notified under document C(2023)3641) (Only the Lithuanian text is authentic) (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (1), and in particular Article 35(3) thereof, After consulting the Advisory Committee for Public Contracts, Whereas: 1\. FACTS (1) | The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee for Public Contracts. ---|--- (2) | On 6 January 2023 Lietuvos paštas, AB (‘the applicant’) submitted a request to the Commission pursuant to Article 35(1) of Directive 2014/25/EU (‘the request’). The request complies with the formal requirements set out in Article 1(1) of Commission Implementing Decision (EU) 2016/1804 (2) and in Annex I to that Implementing Decision. ---|--- (3) | The applicant is a postal service provider in Lithuania and a contracting entity within the meaning of Article 4(2) of Directive 2014/25/EU. The applicant is the only contracting entity in Lithuania providing postal services within the meaning of Article 13(2), point (b), of Directive 2014/25/EU. The request concerns certain postal services, as referred to in Article 13(1)(a) of Directive 2014/25/EU, provided by the applicant in the territory of Lithuania, in particular, express parcel delivery services (3). Standard parcel delivery services are not subject matter of the Request. The applicant provides express parcel delivery services under brand name ‘LP Express’, which include delivery of parcels from a pick-up point (e.g., clients’ home, business place, pick-up parcel locker) to a delivery point specified by the client (home, office, post office or pick-up parcel lockers) (4). ---|--- (4) | The request was not accompanied by a reasoned and substantiated position adopted by an independent national authority that is competent in relation to the activity concerned, which thoroughly analyses the condition for the applicability of Article 34(1) of Directive 2014/25/EU to the activity concerned, in accordance with paragraphs 2 and 3 of that Article. In accordance with point 1(a) of Annex IV to Directive 2014/25/EU, considering that free access to the market can be presumed on the basis of Article 34(3), first subparagraph, of that Directive, the Commission is to adopt an Implementing Decision on the request within 105 working days. ---|--- (5) | Following a request by the Commission on 13 February 2023, the applicant submitted additional information on 20 February 2023. On 23 February 2023, the Commission submitted an additional request for information to the applicant. On the same day, the Commission sent a request for information to the Lithuanian authorities. The applicant submitted additional information on 9 March 2023 and the Lithuanian authorities replied to the request for information on 14 March 2023. ---|--- 2\. LEGAL FRAMEWORK (6) | Directive 2014/25/EU applies to the award of contracts for the pursuit of activities related to postal services referred to in Article 13(2), point (b), of that Directive. ---|--- (7) | Pursuant to Article 34(1) of Directive 2014/25/EU, contracts intended to enable the performance of an activity to which that Directive applies are not to be subject to that Directive if, in the Member State in which it is carried out, the activity is directly exposed to competition on markets to which access is not restricted. ---|--- (8) | Direct exposure to competition is to be assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned. This assessment is, however, limited by the short deadlines applicable and by the need to rely on the information available to the Commission. That information originates either from already available sources or from the information obtained in the context of the request pursuant to Article 35 of Directive 2014/25/EU and cannot be supplemented by more time-consuming methods, including, in particular, public inquiries addressed to the economic operators concerned. ---|--- (9) | Direct exposure to competition in a particular market should be evaluated on the basis of various criteria, none of which are by themselves decisive. ---|--- (10) | For the purposes of assessing whether the relevant activities are subject to direct competition in the markets concerned by this decision, the market share of the main players and the number of market players is to be taken into account. ---|--- 3\. ASSESSMENT (11) | The aim of this Decision is to establish whether the activities concerned by the request are, in markets to which access is not restricted within the meaning of Article 34 of Directive 2014/25/EU, exposed to a level of competition which ensures that, also in the absence of the procurement discipline brought about by the detailed procurement rules laid down in Directive 2014/25/EU, procurement for the pursuit of the activity concerned will be carried out in a transparent and non-discriminatory manner based on criteria allowing purchasers to identify the solution which overall is the economically most advantageous one. ---|--- (12) | This Decision is based on the legal and factual situation as of January 2023 and on the information submitted by the applicant, the authorities of Lithuania and the information that is publicly available. It may be revised, should significant changes in the legal or factual situation mean that the conditions for the applicability of Article 34(1) of Directive 2014/25/EU are no longer met. ---|--- 3.1. Unrestricted access to the market (13) | Access to a market is deemed to be unrestricted if the Member State concerned has implemented and applied the relevant Union legal acts opening a given sector or a part of it. Those legal acts are listed in Annex III to Directive 2014/25/EU, which includes, as regards postal services, Directive 97/67/EC of the European Parliament and of the Council (5). ---|--- (14) | As confirmed by Lithuania (6), and on the basis of the information available to the Commission, Lithuania has transposed (7) and applies Directive 97/67/EC. Consequently, access to the relevant market is deemed to be unrestricted in accordance with Article 34(3) of Directive 2014/25/EU. ---|--- 3.2. Competition assessment 3.2.1. Relevant product market definition (15) | According to the applicant, the relevant product markets could be segmented as follows: (a) domestic express delivery (courier) services; and (b) international express delivery (courier) services (international outgoing and international incoming) (8). ---|--- (16) | The Commission has held in previous decisions (9) that the market for mail delivery services can be segmented into express and standard (also referred to as ‘deferred’) delivery services. This segmentation takes into account that express services are faster and more reliable than a standard service, that each of those services requires a different infrastructure and that express services comprise additional value added service features, such as track and trace services, and are usually also more expensive. ---|--- (17) | The Commission has also made in previous decisions (10) a distinction between domestic and international parcel delivery services. The Commission held that domestic parcel delivery services are provided by companies operating national distribution networks whereas international parcel delivery consists in collecting parcels to be transported and delivered abroad. ---|--- (18) | The applicant takes the view that the relevant product markets for express parcel delivery services correspond to the two types of postal services regarding parcels which are covered by the Request and are set out in points (a) and (b) of recital 15. This approach is in line with Commission previous practice. ---|--- (19) | Narrower market definitions might be envisaged in certain cases (i.e. domestic express parcel delivery services Consumer to consumer/business (C2X) and domestic express parcel delivery services Business to consumer/business (B2X)). However, the precise definition of the relevant market can be left open for the purposes of this Decision. The result of the analysis remains unchanged whether it is based on a narrow or a broader definition (11). ---|--- 3.2.2. Relevant geographical market definition (20) | According to the applicant, relevant geographic market for both domestic express delivery services and international express delivery services should be defined as national, comprising the territory of the Republic of Lithuania (12). ---|--- (21) | As regards the geographical market, in its previous practice (13), the Commission took the view that the markets for express parcel delivery, irrespective of the distinction between domestic and international express delivery services, are national in scope. The applicant’s position is in line with Commission practice. ---|--- (22) | The applicant provides both domestic and international parcel delivery services in Lithuania. ---|--- (23) | In the absence of any indication of a different scope of the geographic market, for the purposes of the assessment under this Decision and without prejudice to competition law, the geographic scope of the domestic and international express parcel delivery services can be considered to cover the territory of Lithuania. ---|--- 3.2.3. Market analysis 3.2.3.1. Domestic express parcel delivery services (24) | There are around 60 express parcel delivery services providers in Lithuania (14). Based on the information submitted by the applicant, there are 4 postal services providers who hold more than 10 % in the market of domestic express parcel delivery services (15). According to available information, the market share of the applicant in this segment of the market was [20-25] % for the period between 2019 and 2021, both in terms of value and volume (16). ---|--- (25) | The market shares of the competitors of the applicant are bigger or comparable to those of the applicant. The market shares of the biggest competitors both in terms of value and volume (17) for the period between 2019 and 2021 are as follows: DPD Lietuva [30-35] %, Venipak Lietuva [15-20] % and Omniva LT [10-15] %; ---|--- (26) | Even if the alternative product markets are defined (i.e. domestic express parcel delivery services (C2X) and domestic express parcel delivery services (B2X)), the competitive situation remains unchanged. Hence, as far as domestic express parcel delivery services (C2X) is concerned, the first market operator in this segment, Omniva LT, had a [35-40] % share for the period between 2019 and 2021, both in terms of value and volume. Omniva LT is in the leading position in this segment of the market. Applicant’s share was [30-35] % for the period between 2019 and 2021, both in terms of value and volume. DPD Lietuva had a [15-20] % share and Venipak Lietuva had a [5-10] % share. Regarding domestic express parcel delivery services (B2X), there are 4 postal services providers who hold more than 10 % in this segment. According to available information, the market share of the applicant in this segment of the market was [15-20] % for the period between 2019 and 2021, both in terms of value and volume. The market shares of the competitors of the applicant are bigger or comparable to those of the applicant. The market shares of the biggest competitors both in terms of value and volume for the period between 2019 and 2021 are as follows: DPD Lietuva [35-40] %, Venipak Lietuva [25-30] % and Omniva LT [10-15] % volume (18). ---|--- (27) | Based on the information submitted by the applicant (19), there are no regulatory barriers to market entry for the provision of domestic express parcel delivery services. Performance of postal activities does not require any formal permission of state institutions. According to the information submitted by the applicant (20), and as confirmed by the information submitted by the Lithuanian authorities (21), the only obligation for the provider is to notify the Communications Regulatory Authority of the Republic of Lithuania (RRT) of the beginning of the provision of services and comply with the requirements set for the postal service provider (22). ---|--- (28) | In addition, the Commission notes, based on the information submitted by the applicant, that certain competitors expanded their services by introducing infrastructure of pick-up parcel lockers. Moreover, all main competitors are planning further investments and expansion of pick-up parcel lockers infrastructure (23). According to information published by the RRT, pick-up parcel lockers are gaining popularity in general and are now one of the two most popular delivery points. Delivery by couriers and to pick-up parcel lockers accounting for 50-60 % and 35-46 % respectively, whereas delivery to post offices accounts only for about 2 % of total parcel delivery in Lithuania (24). In this regard, although the applicant runs a network of post offices, which other courier services providers do not have, it may not be considered as a factor providing a significant competitive advantage to the applicant vis-à-vis its competitors in this segment of the market. ---|--- (29) | For the purposes of this Decision and without prejudice to competition law, the factors described in recitals 24, 25, 26, 27 and 28 should be taken as an indication of exposure to competition of that activity in Lithuania. Consequently, since the conditions set out in Article 34 of Directive 2014/25/EU are met, it should be established that Directive 2014/25/EU does not apply to contracts intended to enable the pursuit of the activity in Lithuania. ---|--- 3.2.3.2. International express parcel delivery services (30) | There are strong services providers active in the international express parcel delivery services, including international market operators, such as DHL or FedEx. According to available information, the applicant’s share in this segment of the market was [0-5] % for the period between 2019 and 2021, both in terms of value and volume (25). ---|--- (31) | The applicant`s share in this segment of the market is very low compared to its competitors. According to available information, the first market operator in this segment, DPD Lietuva had a [40-45] % share for the period between 2019 and 2021, both in terms of value and volume. DHL’s share was [10-15] % for the period between 2019 and 2021, both in terms of value and volume. Two other competitors, Omniva LT and Venipak Lietuva have comparable market shares to those of DHL at [10-15] % for the period between 2019 and 2021, both in terms of value and volume (26). Considering the very low market share of the applicant in this segment, there is no need to assess separately the market share for international C2X and B2X express parcel delivery services. The market shares indicate that competitors are able to exert significant competitive pressure on the applicant in this segment. ---|--- (32) | For the purposes of this Decision and without prejudice to competition law, the factors listed in recitals 30 and 31 should be taken as an indication of exposure to competition of that activity in Lithuania. Consequently, since the conditions set out in Article 34 of Directive 2014/25/EU are met, it should be established that Directive 2014/25/EU does not apply to contracts intended to enable the pursuit of the activity in Lithuania. ---|--- 4\. CONCLUSION (33) | In view of the factors examined in recitals 6 to 32, the condition of direct exposure to competition laid down in Article 34(1) of Directive 2014/25/EU should be considered to be met in Lithuania in respect of the activity related to domestic express parcel delivery services and in respect of the activity related to international express parcel delivery services. ---|--- (34) | Since the condition of unrestricted access to the market is deemed to be met, Directive 2014/25/EU should not apply when contracting entities award contracts intended to enable the activities referred to in recital 33 of this Decision to be carried out in Lithuania, nor when design contests are organised for the pursuit of such an activity in that geographic area. ---|--- (35) | This Decision is without prejudice to the application of the Union rules on competition and of the provisions in other fields of Union law. In particular, the criteria and the methodology used to assess direct exposure to competition under Article 34 of Directive 2014/25/EU are not necessarily identical to those used to perform an assessment under Article 101 or 102 of the Treaty or Council Regulation (EC) No 139/2004 (27) as confirmed by the General Court (28), ---|--- HAS ADOPTED THIS DECISION: Article 1 Directive 2014/25/EU shall not apply to the award of contracts by contracting entities and intended to enable the following activities to be carried out in Lithuania: — | domestic express parcel delivery services ---|--- — | international express parcel delivery services ---|--- Article 2 This Decision is addressed to the Republic of Lithuania. Done at Brussels, 7 June 2023. For the Commission Thierry BRETON Member of the Commission * * * (1) OJ L 94, 28.3.2014, p. 243. (2) Commission Implementing Decision (EU) 2016/1804 of 10 October 2016 on the detailed rules for the application of Articles 34 and 35 of Directive 2014/25/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors (OJ L 275, 12.10.2016, p. 39). (3) Request, point 6. (4) Request, point 6. (5) 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 L 15, 21.1.1998, p. 14). (6) Reply of the Lithuanian authorities to the request for information on 14 March 2023. (7) Republic of Lithuania Postal Law, 15 April 1999 No VIII-1141. New version of the law as of 1 January 2013: No XI-2379 of 8 November 2012, Official Gazette 2012, No 135-6867 (22 November 2012). (8) Request, point 33 and point 39. (9) Commission Implementing Decision (EU) 2020/737 of 27 May 2020 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to contracts awarded for activities related to the provision of certain postal services in Denmark (OJ L 172, 3.6.2020, p. 23), Commission Implementing Decision (EU) 2019/1204 of 12 July 2019 concerning the applicability of Directive 2014/25/EU of the European Parliament and of the Council to contracts awarded for certain activities related to the provision of certain postal services and other services than postal services in Croatia (OJ L 189, 15.7.2019, p. 75). Commission Implementing Decision 2013/154/EU of 22 March 2013 exempting certain services in the postal sector in Hungary from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services (OJ L 86, 26.3.2013, p. 22). See also Commission Decision 90/456/EEC of 1 August 1990 concerning the provision in Spain of international express courier services (OJ L 233, 28.8.1990, p. 19) and COMP/M.5152 of 21 April 2009 – Posten AB/Post Danmark A/S; Commission Decision of 30 January 2013 in Case COMP/M.6570 – UPS/TNT Express. (10) Commission Implementing Decision (EU) 2020/737 of 27 May 2020 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to contracts awarded for activities related to the provision of certain postal services in Denmark (OJ L 172, 3.6.2020, p. 23), Commission Implementing Decision (EU) 2019/1204 of 12 July 2019 concerning the applicability of Directive 2014/25/EU of the European Parliament and of the Council to contracts awarded for certain activities related to the provision of certain postal services and other services than postal services in Croatia (OJ L 189, 15.7.2019, p. 75). See also Case COMP/M.5152 – Posten AB/Post Danmark A/S, of 21.4.2009, para 54. (11) See in this regard Annex 16 to the Request, where the applicant provides estimates of its market share and of its main competitors, with respect to narrower market definitions. (12) Request, point 56. (13) Commission Implementing Decision (EU) 2019/1204 of 12 July 2019 concerning the applicability of Directive 2014/25/EU of the European Parliament and of the Council to contracts awarded for certain activities related to the provision of certain postal services and other services than postal services in Croatia (OJ L 189, 15.7.2019, p. 75). See also Case COMP/M.5152 – Posten AB/Post Danmark A/S, of 21.4.2009, paras 66 and 74. (14) Information based on the market knowledge of the applicant, taking also into consideration the evaluation of the number of postal service providers indicated in the report of the Communications Regulatory Authority of the Republic of Lithuania (RTT). In their reply of 14 March 2023, the Lithuanian authorities confirmed that the there is a large number of domestic express parcel delivery service operators active in Lithuania. (15) See in this regard Annex 16 to the Request, where the applicant provides estimates of its market share and of its main competitors, with respect to narrower market definitions. (16) Ibid. (17) Ibid. (18) Ibid. (19) Request, point 111. (20) Request, point 64. (21) Reply of Lithuanian authorities to the request for information on 14 March 2023. (22) The requirements prescribed by Article 10 of the Postal law concern rights and obligations of the postal services providers, i.e., detailing how postal items should be delivered and returned, requirement to publish terms and conditions for postal services, places of business of the provider and other relevant information, reply to customers within 14 days, and report to RRT. Rules on provision of postal services adopted by RRT further detail requirements for postal services (Order No 1V-332 of the Director of the Communications Regulatory Authority of the Republic of Lithuania of 28 February 2013). (23) Request, point 106. (24) Report of RRT (2021 IV quarter), Annex No 9 to the Request. (25) See in this regard Annex 16 to the Request, where the applicant provides estimates of its market share and of its main competitors, with respect to narrower market definitions. (26) Ibid. (27) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1). (28) Judgment of the General Court of 27 April 2016, Österreichische Post AG v. Commission, T-463/14, EU:T:2016:243, paragraph 28. See also Directive 2014/25/EU, recital 44. * * *