2010/12/: Commission Decision of 5 January 2010 exempting certain financial services in the postal sector in Italy 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 sectors (notified under document C(2009) 10382) (Text with EEA relevance)

• Published date: 09 January 2010
• Date of Signature: 29 January 2010
• Official Gazette Publication: Diario Oficial de la Unión Europea, L 6, 09 de enero de 2010,Gazzetta ufficiale dell’Unione europea, L 6, 09 gennaio 2010,Journal officiel de l’Union européenne, L 6, 09 janvier 2010,Diario Oficial de la Unión Europea, L 101, 22 de abril de 2010

9.1.2010 EN Official Journal of the European Union L 6/8

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COMMISSION DECISION

of 5 January 2010

exempting certain financial services in the postal sector in Italy 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 sectors

(notified under document C(2009) 10382)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2010/12/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1), and in particular Article 30(4) and (6) thereof,

Having regard to the four requests submitted by the Italian Republic by e-mail received on 8 July 2009,

After consulting the Advisory Committee for Public Contracts,

Whereas:

I. FACTS

(1) On 8 July 2009, the Commission received four Italian requests pursuant to Article 30(4) of Directive 2004/17/EC, transmitted to the Commission by e-mail. The Commission requested additional information by e-mail of 24 September 2009, which, following a prolongation of the initial deadline, was transmitted by the Italian authorities by e-mail of 16.10.2009.

(2) The requests submitted by the Italian Republic on behalf of Poste Italiane SpA (in the following referred to as ‘Poste’) concern various financial services provided by Poste. In their turn, each of the four separate requests pursuant to Article 30(4) concerns various financial services that have been grouped under four different headings. In the requests, these services are described as follows: (a) Collection of savings from the public through a current account (in the following referred to as ‘savings’). (b) Lending on behalf of banks and accredited financial intermediaries (in the following referred to as ‘financing’). As described, this group of services would notably cover Poste’s acting as a distributor of third party — lending (in particular mortgages and loans), — consumer credit, and — financial leasing. (c) Investment services and activities (in the following referred to as ‘investments’). Besides custody and management of financial instruments, this group of services is described as covering the downstream (distribution) phase for: — the placement of financial instruments (bonds in particular), and — the placement of supplementary pension and financial/insurance products (in particular personal pension policies). (d) Payment and money transfer services (in the following referred to as ‘payments’). As described, this group of services comprise two distinct categories, namely: — payment services, defined as covering credit card services and debit card services, and — money transfer services, including international funds transfer through the Eurogiro system or by international money order and transfer of funds within Italy by postal money order.

(3) The request is accompanied by two resolutions from an independent national authority (Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture, the Italian Supervisory Authority for Public Contracts). In its final resolution of 12 November 2008, it stresses that, should Article 30(1) be found to be applicable to some or all of the services concerned here, then there would be a need for specific surveillance measures to ensure that Community rules on public procurement continue to be applied as appropriate to all procurements made by Poste for the pursuit of activities other than those to which Article 30(1) would have been found to be applicable. The resolution consequently concludes that Poste should take adequate measures to separate procurements according to the activities for which they are intended.

(4) The request is furthermore also accompanied by an opinion issued by an independent national authority, Autorità garante della concorrenza e del mercato (the Italian competition authority). It stresses the openness of the Italian financial sector in general with over 800 banks and more than 80 banking groups and more than 170 companies operating in the insurance sector, 68 of which are active providers in the life assurance branch only, 77 in non-life insurance only and 17 in both life and non-life. The sector would also be characterised by relatively low degrees of concentration, as the aggregate market shares in 2007 of the five biggest groups amounted to approximately 51,5 % in the banking sector and, in respect of all life insurance branches, about 53 %. In its general comments, the authority also points to the fact that Poste provides its financial services through ‘a distribution network based on its postal business, which is very comprehensive and is not comparable to that of any other operator. The network consists of some 14 000 post offices (2), whereas the leading banking group operating in Italy has an overall network of slightly over 6 000 branches.’

(5) Based on its practice in the field of bank mergers, the authority set out detailed comments on the various services covered by the request and concludes: ‘The procedure launched by Poste Italiane relates to a wide range of activities inherent in the banking, insurance and managed savings sectors. As regards those sectors, access to which can be considered to be unrestricted, the Competition Authority has found the typical characteristics of open markets […] In this context, Poste Italiane for its part is seen as a particular operator, both because of the normative constraints regulating the services of Bancoposta and because of the customer base it serves. This is confirmed by Authority’s precedents, according to which Poste Italiane has never been fully assimilated either to banks or to other financial intermediaries operating on the markets concerned. Bancoposta services have on the whole been found to be complementary and close to those of the banks rather than substitutable for them […] despite the specific nature of Poste Italiane, the conclusion is that the provision of banking, financial and insurance services in Italy can be considered as taking place in the contexts of markets to which access is not restricted, on which there are various operators and where the degrees of concentration are comparable to the European averages.’

(6) Nevertheless the Italian competition authority has since opened a procedure against Poste Italiane SpA for abuse of domination in the field of payments, more specifically credit transfers by means of postal accounts. Commitments by Poste Italiane to solve the issue are under discussion with the Competition Authority (3).

II. LEGAL FRAMEWORK

(7) It should be recalled that, in accordance with Article 6(2)(c) of Directive 2004/17/EC, the provision of financial services as defined in the fourth indent of said point (c) are covered by that Directive only to the extent that such services are provided by entities which also provide postal services within the meaning of point (b) of that provision. Poste is the only contracting entity in Italy which offers the services concerned here.

(8) Article 30 of Directive 2004/17/EC provides that contracts intended to enable the performance of one of the activities to which the Directive applies shall not be subject to the 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. Direct exposure to competition is assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned. Access is deemed to be unrestricted if the Member State has implemented and applied the relevant Community legislation opening a given sector or a part of it. Where no relevant Community legislation is listed in the Directive’s Annex XI, as is the case in respect of the services concerned here, then Article 30(3), second subparagraph requires that it ‘must be demonstrated that access to the market in question is

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