© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
H6. Post exemptions
Identity of supplier
- Services must be performed by universal postal service provider
"[27] In this connection, it is important to note, first of all, that the syntax of the whole phrase ‘public postal services’ clearly shows that the words in fact refer to the actual organisations which engage in the supply of the services to be exempted. In order to be covered by the wording of the provision, the services must therefore be performed by a body which may be described as ‘the public postal service’ in the organic sense of that expression (see Case 107/84 Commission v Germany [1985] ECR 2655, paragraph 11).
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[30] It follows that, in contrast to what is claimed by TNT Post and the Finnish and Swedish Governments, the exemption laid down in Article 13A(1)(a) of the Sixth Directive cannot be interpreted so as to cover, in essence, supplies of postal services, such as the reserved services within the meaning of Article 7 of Directive 97/67, regardless of the status of the provider of those services." (TNT Post UK Ltd C-357/07)
- Public or private operators undertaking to provide postal services meeting essential needs of the population
"[36] It follows that public postal services within the meaning of Article 13A(1)(a) of the Sixth Directive must be regarded as operators, whether they are public or private (see, to that effect, Commission v Germany, paragraph 16), who undertake to supply postal services which meet the essential needs of the population and therefore, in practice, to provide all or part of the universal postal service in a Member State, as defined in Article 3 of Directive 97/67." (TNT Post UK Ltd C-357/07)
Services exempted
- Not all postal supplies by universal service provider
"[43] However, contrary to what is maintained by Royal Mail, the Greek and United Kingdom Governments and Ireland, it may not be inferred from that provision that all the supplies of services by the public postal services and supplies of goods incidental thereto which are not expressly excluded from the scope of that provision are exempted, regardless of their intrinsic nature." (TNT Post UK Ltd C-357/07)
- Only public postal services performed by the universal service provider as such
"[44] It follows from the requirements referred to in paragraph 31 of this judgment that the exemption provided for in Article 13A(1)(a) must be both strictly interpreted and interpreted consistently with the objectives of that provision, that the supplies of services and of goods incidental thereto must be interpreted as being those that the public postal services carry out as such, that is, by virtue of their status as public postal services." (TNT Post UK Ltd C-357/07)
Services not exempted
- Services dissociable from the universal service (e.g. services meeting special needs of economic operators)
"[46] In the same way, it follows from the requirements set out in paragraph 44 of this judgment and, in particular, from the nature of the objective pursued by Article 13A(1)(a), which is to encourage an activity in the public interest, that the exemption is not to apply to specific services dissociable from the service of public interest, including services which meet special needs of economic operators (see, to that effect, Case C‑320/91 Corbeau [1993] ECR I-2533, paragraph 19)." (TNT Post UK Ltd C-357/07)
- Services whose terms have been individually negotiated
"[47] The German Government and the Commission are therefore correct to submit that services supplied by the public postal services for which the terms have been individually negotiated cannot be regarded as exempted under Article 13A(1)(a) of the Sixth Directive. By their very nature, those services meet the special needs of the users concerned.
[48] That interpretation is, moreover, confirmed by recital 15 in the preamble to Directive 97/67, from which it is apparent that the option to negotiate contracts with customers individually does not correspond, in principle, with the concept of universal service provision." (TNT Post UK Ltd C-357/07)