HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 86/22
EN
Official Journal of the European Union
26.3.2013
COMMISSION IMPLEMENTING DECISION
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
(notified under document C(2013) 1568)
(Only the Hungarian text is authentic)
(Text with EEA relevance)
(2013/154/EU)
THE EUROPEAN COMMISSION,
(a) domestic standard consumer parcel services (here
inafter referred to as C2X), which comprise
consumer to consumer standard parcel services (here
inafter referred to as C2C) and consumer to business
Having regard to the Treaty on the Functioning of the European
standard parcel services (hereinafter referred to as
Union,
C2B);
Having regard to Directive 2004/17/EC of the European
(b) domestic standard business parcel services (here
Parliament and of the Council of 31 March 2004 coordinating
inafter referred to as B2X) which comprise business
the procurement procedures of entities operating in the water,
to business standard parcel services (hereinafter
energy, transport and postal services sectors ( 1 ) and in particular
referred to as B2B) and business to consumer
Article 30(5) and (6) thereof,
standard parcel services (hereinafter referred to as
B2C);
Whereas:
(c) domestic express parcel services;
I. FACTS
(1) On
3
October
2012
Magyar
Posta
Zrt.
transmitted
a
(d) domestic courier parcel services;
request pursuant to Article 30(5) of Directive
2004/17/EC to the Commission by e-mail. In accordance
with Article 30(5) first subparagraph, the Commission
informed the Hungarian authorities thereof by letter of
(e) domestic pallet services; and
19 October 2012. The Commission requested additional
information from the Hungarian authorities by e-mail of
22 November 2012, from the relevant national Regu
latory Authority (
(f) contract logistics services.

2 ) by e-mail of 7 January 2013, and
from the applicant by emails of 12 November 2012
and of 7 January 2013. Additional information was
transmitted by the Hungarian authorities by e-mail of
(3) Magyar
Posta
provides
the
above
services,
with
the
13 January 2013, by the national Regulatory Authority
exception of contract logistics and, to a certain extent,
on 21 January 2013 and by the applicant on
domestic pallet services, in the so-called Courier, Express
20 November 2012 and 15 January 2013 respectively.
and Parcel (CEP) sector of Hungary. The CEP sector is a
segment of the freight transport market and postal
market, which provides time guaranteed services,
(2) The
request
submitted
by
Magyar
Posta
concerns
certain
whereby the service provider undertakes an obligation
postal services as well as certain services other than
to the sender to deliver the item within a specified
postal services provided by the Magyar Posta on the
period or at a specific point in time.
territory of Hungary. The services concerned are
described as follows in the request:
II. LEGAL FRAMEWORK
( 1 ) OJ L 134, 30.4.2004, p. 1.
( 2 ) The National Media and Infocommunications Authority is the
(4) Article
30
of
Directive
2004/17/EC
provides
that
national Regulatory Authority designated in accordance with
contracts intended to enable the performance of one of
Article 22(1) of Directive 97/67/EC of the European Parliament
the activities to which Directive 2004/17/EC applies shall
and of the Council (OJ L 15, 21.1.1998, p. 14) as amended by
Directive 2002/39/EC (OJ L 176, 5.7.2002, p. 21) and by
not be subject to that Directive if, in the Member State in
Directive 2008/6/EC (OJ L 52, 27.2.2008, p. 3).
which it is carried out, the activity is directly exposed to

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EN
26.3.2013 Official
Journal
of
the
European
Union L
86/23
competition on markets to which access is not restricted.
Council Regulation (EC) No 139/2004 of 20 January
Direct exposure to competition is assessed on the basis
2004 on the control of concentrations between under
of objective criteria, taking account of the specific char
takings (the EC Merger Regulation) ( 3 ).
acteristics of the sector concerned. Access is deemed to
be unrestricted if the Member State has implemented and
applied the relevant EU legislation opening a given sector
or a part of it. This legislation is listed in Annex XI to
III. ASSESSMENT
Directive 2004/17/EC, which, for the postal sector, refers
to Directive 97/67/EC.
1. Relevant product market
(9) The
Commission
has
held
in
previous
decisions
taken
on
the basis of the Merger Regulation ( 4 ) that the market for
parcel delivery services can be segmented as follows:
(5) The
application
concerns
postal
services
such
as
domestic
standard consumer parcel services, domestic standard
business parcel services, domestic express parcel
services, domestic courier parcel services and also other
— Express versus standard parcel delivery services. This
services than postal services, namely those services
segmentation takes into account that express services
referred to as domestic pallet services and contractual
are on the whole faster and more reliable than a
logistics.
standard service, that each of these services require
a different infrastructure and that express services
comprise additional value added service features and
are also more expensive.
(6) Hungary
has
implemented
and
applied
Directive
97/67/EC as amended by Directive 2002/39/EC and
Directive 2008/6/EC, using the possibility pursuant to
Article 3(1) of the latter to reserve certain items of
— Further distinction were also envisaged on the basis
correspondence ( 1 ) until 31 December 2012 for the
of type of customers and/or type of consignees: (i) a
designated universal service provider, Magyar Posta ( 2 ).
distinction parcel delivery services for consumers
None of the services concerned by the present request
versus parcel delivery (C2X) ( 5 ) for businesses (B2X);
were reserved at the time of the request. As Hungary has
(ii) within the B2X segment, a distinction between
reached the level of market opening provided for under
deliveries to businesses (B2B) and deliveries to
the legislation listed in Annex XI to Directive
consumers (B2C) since B2C delivery requires a
2004/17/EC, access to the market should be deemed
denser network than B2B deliveries so that private
not to be restricted in accordance with the first
consignees can be reached.
subparagraph of Article 30(3) of that Directive. Direct
exposure to competition in a particular market should
be evaluated on the basis of various criteria, none of
which are, per se, decisive.
— International versus domestic delivery services. In a
recent decision ( 6 ), the Commission also distinguished
international intra-EEA services and international
extra-EEA services.
(7) In
respect
of
the
markets
concerned
by
this
decision,
the
market share of the main players on a given market
constitutes one criterion which should be taken into
account. Another criterion is the degree of concentration
(10) The applicant takes the view that the relevant product
on those markets. As the conditions vary for the different
markets for parcel delivery services are those listed in
activities that are concerned by this Decision, the exam
recital 2 above. This approach is generally in line with
ination of the competitive situation should take into
Commission previous practice. Nevertheless, the
account the different situations on different markets.
applicant assessed the domestic B2X market as a whole

(i.e. without distinguishing the B2B and B2C segments)
which may not be fully in line with previous
Commission practice ( 7 ).
(8)
This Decision is without prejudice to the application of
(
the rules on competition. In particular, the criteria and

3 ) OJ L 24, 29.1.2004, p. 1.
( 4 ) Case No COMP/M.5152 — Posten AB/Post Danmark A/S of
the methodology used to assess direct exposure to
21 April 2009.
competition under Article 30 of Directive 2004/17/EC
( 5 ) A distinction could be envisaged between C2C and C2B parcel
are not necessarily identical to those used to perform
services; however, because of this close substitutability on the
an assessment under Article 101 or 102 TFEU or
supply-side, it is appropriate to treat these services as one C2X
service. This is also consistent with analysis adopted for Austria,
Finland and Sweden in, decisions adopted pursuant to Article 30
( 1 ) Items of correspondence with a weight of up to 50 g and 2,5 times
of Directive 2004/17/EC, respectively, Commission Decisions
the public tariff for an item of correspondence in the first weight
2010/142/EC (OJ L 56, 6.3.2010, p. 8), 2007/564/EC (OJ L 215,
step of the fastest category.
18.8.2007, p. 21) and 2009/46/EC (OJ L 19, 23.1.2009, p. 50).
( 2 ) As of 1 January 2013, full market opening is implemented in
( 6 ) Decision of 30 January 2013 prohibiting the planned acquisition of
Hungary and the formerly reserved area under Article 7 of
TNT Express by UPS.
Directive 97/67/EC as amended by Directive 2002/39/EC and
( 7 ) Case No COMP/M.5152 — Posten AB/Post Danmark A/S of
Directive 2008/6/EC has been abolished.
21 April 2009.

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L 86/24
EN
Official Journal of the European Union
26.3.2013
(11) The
applicant
argues
that
Magyar
Posta
does
not
differ
services form part of different markets. For the purposes
entiate between B2B and B2C services in terms of
of the assessment under this Decision and without
available prices, and that it does not distinguish the
prejudice to competition law, it can be considered that
services on the basis of addressee groups. This
the relevant product markets are express parcel services
argument is held up also by the Hungarian Auth
and courier parcel services, while the precise definition of
orities ( 1 ), which in addition points out that according
the relevant market can be left open as the result of the
to the information available on websites of the main
analysis remains the same whether it is based on a
competitors of Magyar Posta, on the B2X standard post
narrow or a broader definition.
parcels, there is no distinction made in terms of
published prices, as to whether parcel recipients are
consumers or businesses.
(16) Domestic
pallet
services
are
part
of
the
so-called
freight
forwarding markets, which have also been assessed in
previous Decisions under the Merger Regulation. In
(12) Previous Decisions
( 2 ) under Article 30 of Directive
previous cases, freight forwarding has been defined ( 5 )
2004/17/EC, concerning post parcels made a distinction
as the ‘organisation of transportation of items (…) on
between B2B and B2C standard post parcels. However, in
behalf of customers according to their needs’. Although
all cases the result of the assessment for both markets
some further product markets delineations were
was the same, which may be seen as an indication of the
considered in previous cases (i.e. between domestic and
fact that the product market definition could have been
international freight forwarding services ( 6 ), or between
left open.
different modes of transport ( 7 )) in this stance, given
that the market definition has no decisive impact on
the outcome of the assessment under Article 30 of
Directive 2004/17/EC, no further delineation of the
(13) Moreover,
it
appears
from
the
information
provided
by
market will be considered, for the purposes of this
the National Regulatory Authority ( 3 ), that in both
assessment.
scenarios (if two separate markets are considered for
B2B and B2C standard post parcels, or only one
market for B2X standard post parcels) the result of the
assessment of the competitive situation would be the
same.
(17) Previous decisions under the Merger Regulation
defined ( 8 ) contract logistics as: ‘the part of the supply
chain process that plans, implements and controls the
efficient, effective flow and storage of goods, services
(14) Based
on
the
information
on
recitals
9
to
13,
for
the
and related information from the point of origin to the
purposes of the assessment under this Decision and
point of consumption in order to meet customer’s
without prejudice to competition law, it can be
requirements’. The Commission assessed further
considered that the relevant product market is B2X,
possible distinctions ( 9 ) (i.e. between domestic and cross
while the precise definition of the relevant market can
border services, by reference to the types of goods
be left open as the result of the analysis remains the
handled or the industry serviced, or between lead
same whether it is based on a narrow or a broader
logistics providers and traditional contract logistics
definition.
service providers) but in the end the precise scope of
the product market definition was left open ( 10 ). The
applicant follows also the Commission’s position. In
the present case, given that there are no indications
(15) Previous
Commission Decisions under Article 30 of
that further distinction is needed, for the purposes of
Directive 2004/17/EC (
this decision and without prejudice to competition law,

4 ) considered the express and
courier parcels services as one product market. The
the product market is defined as contract logistics.
applicant assumes that express and courier parcels
( 1 ) Letter of the Hungarian Authorities of 13 January 2013 (page 9,
paragraph 2).
(18) In
conclusion,
taking
due
account
the
above,
for
the
( 2 )
Decision 2010/142/EC, Decision 2009/46/EC, Decision
purposes of this Decision, and without prejudice to
2007/564/EC.
competition law relevant product markets shall be
( 3 ) The e-mail of the national Regulatory Authority of 21 January 2013
those listed in recital 2.
provides estimates of the volumes of B2X, market and separately for
B2B and B2C markets based on the data requested from Magyar
Posta and from its first three competitors. According to this
( 5 ) Case No COMP/M. 1794 — Deutsche Post/Air Express Inter
information, in 2011, on the B2X market Magyar Posta was the
national, of 7 February 2000, paragraph 8.
second market player (35 % of market shares) following the
( 6 ) Case No COMP/M. 5152 — Posten AB/Post Danmark, of 21 April
market leader (40 % of the market shares) and followed by the
2009, paragraph 108.
third market player (15 % of market shares). In the B2C market,
( 7 ) Case No COMP/M. 1794 — Deutsche Post/Air Express Inter
Magyar Posta held 51 % of market shares, while its main
national, of 7 February 2000, paragraph 9.
competitors had 26 %, 11 % and 10 % market shares respectively.
( 8 ) Case No COMP/M. 3496 — TNT forwarding Holding AB/Wilson
In the B2B market, Magyar Posta was the third market player (16 %
Logistics Holding AB.
of market shares), while the market leaders held 57 % and 22 %
( 9 ) Case No COMP/M. 1895 — Ocean Group/Exel, of 3 May 2000,
respectively.
paragraphs 8 and 9.
( 4 ) Decision 2009/46/EC, Decision 2007/564/EC, Commission Decision
( 10 ) Case No COMP/M. 3971 — Deutsche Post/Exel, of 24 November
2007/169/EC (OJ L 78, 17.3.2007, p. 28).
2005, paragraph 20.

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EN
26.3.2013 Official
Journal
of
the
European
Union L
86/25
2. Relevant geographical market
3.1. Domestic standard consumer parcel services (C2X)
(19) In
its
practice
( 1 ), the Commission has taken the view
(24) Standard
consumer
parcel
services
must
be
considered
that the markets for domestic parcel delivery services
apart, as they satisfy different needs of demand (universal
and any segments thereof are national in scope. This
postal service) in relation to commercial parcels, where
segmentation is mainly based on the fact that such
the technological process of providing this service and
services are provided at national level. The applicant’s
operational solutions employed usually differ signifi
position is in line with Commission practice.
cantly. In respect of these services, Magyar Posta’s
market position is very strong with an estimated
market share that has remained relatively stable over
the period 2008-2011 at the order of around 80 % by
(20) Given
that,
in
this
case,
there
are
no
indications
of
a
value. The main competitor has a market share of
wider or smaller geographical scope, for the purposes
approximately […], while the rest of the main market
of evaluating whether the conditions laid down in
players have market shares of under […].
Article 30(1) of Directive 2004/17/EC are fulfilled, and
without prejudice to competition law, the relevant
geographic market is considered to be the territory of
Hungary.
(25) The Commission also notes that in spite of the
continuous expansions of different competitor’s
networks, there is currently a considerable difference in
(21) As
regards,
domestic
pallet
services
and
contract
logistics,
the applicant considers that the markets are national in
size of Magyar Posta network compared to its competi
scope. As the services concerned by the request are
tors ( 3 ).
domestic services, and Magyar Posta is active only in
Hungarian market, for the purposes of this decision,
the relevant geographic market is considered to be the
territory of Hungary.
(26) It
should
therefore
be
concluded
that
the
category
of
services examined here is not directly exposed to
competition in Hungary. This is in line with the
3. Market analysis
opinion of the Hungarian Authorities ( 4 ). Consequently,
Article 30(1) of Directive 2004/17/EC does not apply to
(22) It should be kept in mind that the aim of the present
contracts intended to enable the pursuit of those
Decision is to establish whether the services concerned
activities in Hungary.
by the request are exposed to such a level of competition
(on markets to which access is not restricted within the
meaning of Article 30 of Directive 2004/17/EC) that this
will ensure that, also in the absence of the discipline
brought about by the detailed procurement rules set
3.2. Domestic standard business post parcels (B2X)
out in Directive 2004/17/EC, procurement for the
pursuit of the activities concerned here will be carried
(27) In
respect
of
B2X
standard
parcel
services,
according
to
out in a transparent, non-discriminatory manner based
available information ( 5 ), Magyar Posta’s market share
on criteria allowing purchasers to identify the solution
was around 35 % by volume in 2011, and it was
which overall is the economically most advantageous
second placed after the market leader who held 40 %
one.
of the market share, while the third competitor had
also a 15 % market share. These factors should be
taken as an indication of direct exposure to competition
of Magyar Posta, on the B2X standard parcel services.
(23) In
this
context,
it
should
be
recalled
that
the
product
markets defined above are generally characterised by a
large number of operators. However, according to the
available information ( 2 ), out of these only Magyar
Posta is a contracting entity in the sense of Directive
3.3. Domestic express parcel services
2004/17/EC. The procurement of Magyar Posta’s
competitors, for the purpose of carrying out the activities
(28) Magyar
Posta’s
market
share
of
the
market
for
domestic
described above is not subject to the provisions of
express parcel services has been steadily falling over the
Directive 2004/17/EC. Consequently, for the purposes
period from 2008 to 2011, from approx. 55 % by
of this decision and without prejudice to competition
value ( 6 ) in 2008 to round 41 % in 2011, by value.
law, the market analysis will not focus on the general
degree of competition on a given market, but will assess
( 3 ) According to page 20 of the application Magyar Posta has a network
whether or not the activities of Magyar Posta are exposed
of 2735 postal outlets across the country. According to the letter
to competition on markets to which access is not
received from Magyar Posta on 20 November 2012, the main
restricted.
competitor has a network of 372 collection points, while another
competitor recently reached 400 points collection points.
( 4 ) Letter of the Hungarian Authorities, of 13 January 2013, page 8.
( 1 ) Case No COMP/M.5152 — Posten AB/Post Danmark A/S, of
( 5 ) E-mail of the national Regulatory Authority of 21 January 2013.
21 April 2009, Case No COMP/M.3971 — Deutsche Post/Exel, etc.
( 6 ) When measured by volume, Post’s market share in 2008 was of the
( 2 ) Letter of the Hungarian Authorities, of 13 January 2013, page 3.
order of approximately 43 %.

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L 86/26
EN
Official Journal of the European Union
26.3.2013
The aggregate market share of the two biggest
IV. CONCLUSIONS
competitors amounted to slightly over 22 % by value
in 2008 and increased to around 30 % by value in
(35) In
view
of
the
factors
examined
in
recitals
2
to
34,
the
2011, i.e. almost three quarter of Magyar Posta’s
condition of direct exposure to competition laid down in
market share, at which level they would be able to
Article 30(1) of Directive 2004/17/EC should be
bring a significant competitive pressure to bear on
considered to be met in Hungary in respect of the
Magyar Posta ( 1 ). These factors should therefore be
following services:
taken as an indication of direct exposure to competition.
(a) domestic standard business post parcels (B2X);
3.4. Domestic courier parcel services
(29) According to the applicant, the market for courier parcel
(b) domestic express parcel services;
services is not highly concentrated. Eight companies
account for 60-67 % of the relevant market, by value.
The market is dominated by three companies, but their
(c) domestic courier parcel services;
cumulated market share is less than 50 % over the last
four years.
(d) combined freight services; and
(30) Magyar Posta’s market share of the market for domestic
courier parcel services was between 2 and 3 % by value
(e) contract logistics.
over the last four years. These factors should therefore be
taken as an indication of direct exposure of Magyar Posta
to competition.
(36) Since the condition of unrestricted access to the market
is deemed to be met, Directive 2004/17/EC should not
apply when contracting entities award contracts intended
3.5. Domestic pallet services
to enable the services listed in points (a) to (e) of recital
(31) The
market
size
of
domestic
pallet
services
is
the
second
35 to be carried out in Hungary, nor when design
smallest one in the CEP sector in Hungary, and given its
contests are organised for the pursuit of such an
marginal importance, the market has only few permanent
activity in this country.
operators. Magyar Posta market share decreased, by
value, from 67,6 % in 2008 to 38,7 % in 2010, and
then increased in 2011 to 56,7 %, by value. The first
(37) This Decision is based on the legal and factual situation
competitor increased its market shares steadily between
as of October 2012 to January 2013 as it appears from
2008 and 2011. The cumulated market shares of the
the information submitted by Magyar Posta and the
second and third competitors ranged between 20 %
Hungarian Authorities. It may be revised, should the
and 49 % between 2008 and 2011, at which level they
conditions for the applicability of Article 30(1) of
would be able to bring a significant competitive pressure
Directive 2004/17/EC be no longer met, following
on Magyar Posta.
significant changes in the legal or factual situation.
(32) Moreover,
Magyar
Posta’s
request
refers
only
to
services
(38) Nevertheless, the condition of direct exposure to
provided within the CEP sector. In addition, pallet
competition laid down in Article 30(1) of Directive
services are also provided by undertakings outside the
2004/17/EC should be considered not to be met with
CEP sector.
respect to domestic standard consumer parcel services,
on the territory of Hungary.
(33) The factors listed above in the above two recitals shall
therefore be taken as an indication of direct exposure of
(39) Since the domestic standard consumer parcel services
Magyar Posta to competition. This opinion is also
continue to be subject to Directive 2004/17/EC, it is
endorsed by the Hungarian Authorities ( 2 ).
recalled that procurement contracts covering several
activities should be treated in accordance with Article 9
of Directive 2004/17/EC. This means that, where a
3.6. Contract logistics
contracting entity is engaged in ‘mixed’ procurement,
that is procurement used to support the performance
(34) The
market
shares
of
Magyar
Posta
in
this
segment
are
of both, activities exempted from the application of
below 1 %. The market is characterised by a large
Directive 2004/17/EC and activities not exempted,
number of market players ( 3 ) and it is seen as a very
regard must be had to the activities for which the
dynamic market. These factors should therefore be
contract is principally intended. In the event of such
taken as an indication of direct exposure to competition.
mixed procurement, where the purpose is principally to
support the domestic standard consumer parcel services,
( 1 ) The same reasoning was applied in previous Decisions, see e.g.
the provisions of Directive 2004/17/EC are to be applied.
recital 11 of Decision 2010/142/EC.
Where it is objectively impossible to determine for which
( 2 ) Letter of the Hungarian Authorities of 13 January 2013, page 10.
activity the contract is principally intended, the contract
( 3 ) I.e. DHL Group, Kuhne Nagel Kft, Liegl&Dachser Kft, Gebrüder
Weiss Szállítmányozási és Logisztikai Kft; Waberer’s Group; Trans-
is to be awarded in accordance with the rules referred to
Sped Group; Masped Group, etc.
in Article 9(2) and (3) of Directive 2004/17/EC.

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EN
26.3.2013 Official
Journal
of
the
European
Union L
86/27
(40) The
measures provided for in this Decision are in
(d) combined freight services; and
accordance with the opinion of the Advisory
committee for Public Contracts.
(e) contract logistics.
HAS ADOPTED THIS DECISION:
Article 2
Article 1
This Decision is addressed to Hungary.
Directive 2004/17/EC shall not apply to contracts awarded by
contracting entities and intended to enable the following
services to be carried out in Hungary:
Done at Brussels, 22 March 2013.
(a) domestic standard Business post parcels services (B2X);
(b) domestic express parcel services;
For the Commission
Michel BARNIER
(c) domestic courier parcel services;
Member of the Commission

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