Marketing and the perfect crime? CJEU engages in a strange discussion of operational vs commercial discounts and issues ruling against mail consolidators (C-340/13, bpost)

In its Judgment in bpost, C-340/13, EU:C:2015:77, the CJEU has ruled that a discount system that offers reduced postal tariffs to high-volume senders but excludes bulk mailers and mail consolidators is not discriminatory under the applicable EU postal liberalisation rules. In its bpost Judgment, the CJEU sets a distinction between operation discounts (which must be offered to bulk senders and mail consolidators in a non-discriminatory way) and marketing discounts (which can be limited to bulk senders or, more clearly, exclude (competing) mail consolidators).

The reasoning of the CJEU is as follows:
47 ... although the bulk mailers and consolidators could be in comparable situations as regards operational discounts, as follows from the judgment in Deutsche Post and Others (EU:C:2008:141), that is not necessarily the case as regards quantity discounts, such as those at issue in the main proceedings. The quantity discounts per sender are such as to encourage the senders to hand on more mail to bpost, enabling it thereby to make economies of scale. However, the activity carried out by the consolidators does not contribute, of itself ... to an increase in the mail handed on to bpost and, accordingly, to bpost achieving those savings.

48 ... bulk mailers and consolidators are not in comparable situations as regards the objective pursued by the system of quantity discounts per sender, which is to stimulate demand in the area of postal services, since only bulk mailers are in a position to be encouraged, by the effect of that system, to increase the volume of their mail handed on to bpost and, accordingly, the turnover of that operator. Consequently, the different treatment as between those two categories of clients which follows from the application of the system of quantity discounts per sender does not constitute discrimination prohibited under Article 12 of Directive 97/67
(C-340/13, paras 47-48, emphasis added).
In my view, the CJEU has fallen into a marketing reasoning trap and is myopic. By buying into a dodgy justification for a specific discount strategy--which exclusionary effects are evident--the CJEU is using EU postal liberalisation rules to rubber-stamp a practice that would hardly pass legal muster under an analysis based on abuse of a dominant position under Art 102 TFEU. In that regard, in my view, the bpost Judgment is flawed and should raise significant red flags in terms of ensuring a sound and consistent enforcement of liberalisation and competition rules, as two key parts of EU economic law. 

Ultimately, by buying into the 'marketing' justification for the discount (and overlooking the fact of the commonality of issues that the economies of scale that are aimed at by all sorts of bulk discounts create), the CJEU has allowed bpost to commit the perfect crime. By 'smartly' disguising a protectionist exclusion from the discount policy under the cloak of a marketing campaign to increase post volume (and is it a good thing, environmental considerations taken into account?), bpost has managed to raise its rivals' costs. This makes poor economic sense and is a bad decision in terms of market impact. Certainly, if the effectiveness of Art 102 TFEU in liberalised sectors where universal service obligations exist is to be promoted, this should not become a trend.