COMMON POSITION (EC) No 25/97 adopted by the Council on 29 April 1997 with a view to adopting Directive 97/. . ./EC of the European Parliament and of the Council on common rules for the development of the internal market of Community postal services and the improvement of quality of service (97/C 188/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 57 (2), 66 and 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Having regard to the opinion of the Committee of the Regions (3),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (4),

Having regard to the resolution of the European Parliament of 22 January 1993 concerning the Green Paper on the development of the single market for postal services (5),

Having regard to the Council resolution of 7 February 1994 on the development of Community postal services (6),

(1) Whereas measures should be adopted with the aim of establishing the internal market in accordance with Article 7a of the Treaty; whereas this market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured;

(2) Whereas the establishment of the internal market in the postal sector is of proven importance for the economic and social cohesion of the Community, in that postal services are an essential instrument of communication and trade;

(3) Whereas on 11 June 1992 the Commission presented a Green Paper on the development of the single market for postal services and, on 2 June 1993, a Communication on the guidelines for the development of Community postal services;

(4) Whereas the Commission has conducted wide-ranging public consultation on those aspects of postal services that are of interest to the Community and the interested parties in the postal sector have communicated their observations to the Commission;

(5) Whereas the current extent of the universal postal service and the conditions governing its provision vary significantly from one Member State to another; whereas, in particular, performance in terms of quality of service is very unequal amongst Member States;

(6) Whereas cross-border postal links do not always meet the expectations of users and European citizens, and performance, in terms of quality of service with regard to Community cross-border postal services, is at the moment unsatisfactory;

(7) Whereas the disparities observed in the postal sector have considerable implications for those sectors of activity which rely especially on postal services and effectively impede the progress towards internal Community cohesion, in that the regions deprived of postal services of sufficiently high quality find themselves at a disadvantage as regards both their letter service and the distribution of goods;

(8) Whereas measures seeking to ensure the gradual and controlled liberalization of the market and to secure a proper balance in the application thereof are necessary in order to guarantee, throughout the Community, and subject to the obligations and rights of the universal service providers, the free provision of services in the postal sector itself;

(9) Whereas action at Community level to ensure greater harmonization of the conditions governing the postal sector is therefore necessary and steps must consequently be taken to establish common rules;

(10) Whereas, in accordance with the principle of subsidiarity, a set of general principles should be adopted at Community level, whilst the choice of the exact procedures should be a matter for the Member States, which should be free to choose the system best adapted to their own circumstances;

(11) Whereas it is essential to guarantee at Community level a universal postal service encompassing a minimum range of services of specified quality to be provided in all Member States at an affordable price for the benefit of all users, irrespective of their geographical location in the Community;

(12) Whereas the aim of the universal service is to offer all users easy access to the postal network through the provision, in particular, of a sufficient number of access points and by ensuring satisfactory conditions with regard to the frequency of collections and deliveries; whereas the provision of the universal service must meet the fundamental need to ensure continuity of operation, whilst at the same time remaining adaptable to the needs of users as well as guaranteeing them fair and non-discriminatory treatment;

(13) Whereas universal service must cover national services as well as cross-border services;

(14) Whereas users of the universal service must be given adequate information on the range of services offered, the conditions governing their supply and use, the quality of the services provided, and the tariffs;

(15) Whereas the provisions of this Directive relating to universal service provision are without prejudice to the right of universal service operators to negotiate contracts with customers individually;

(16) Whereas the maintenance of a range of those services that may be reserved, in compliance with the rules of the Treaty and without prejudice to the application of the rules on competition, appears justified on the grounds of ensuring the operation of the universal service under financially balanced conditions; whereas the process of liberalization should not curtail the continuing supply of certain free services for blind and partially sighted persons introduced by the Member States;

(17) Whereas items of correspondence weighing 350 grammes and over represent less than 2 % of letter volume and less than 3 % of the receipts of the public operators; whereas the criteria of price (five times the basic tariff) will better permit the distinction between the reserved service and the express service, which is liberalized;

(18) Whereas, in view of the fact that the essential difference between express mail and universal postal services lies in the value (whatever form it takes) added by express services provided to and perceived by customers, the most effective way of determining the extra value perceived is to consider the extra price that customers are prepared to pay, without prejudice, however, to the price limit of the reserved area which must be respected;

(19) Whereas it is reasonable to allow, on an interim basis, for direct mail and cross-border mail to continue to be capable of reservation within the price and weight limits provided; whereas, as a further step towards the completion of the internal market of postal services, a decision on the further gradual and controlled liberalization of the postal market, in particular with a view to the liberalization of cross-border and direct mail, as well as on a further review of the price and weight limits, should be taken by the European Parliament and the Council not later than 1 January 2000, on a proposal from the Commission following a review of the sector;

(20) Whereas, for reasons of public order and public security, Member States may have a legitimate interest in conferring on one or more entities designated by them the right to site on the public highway letter-boxes intended for the reception of postal items; whereas, for the same reasons, they are entitled to appoint the entity or entities responsible for issuing postage stamps identifying the country of origin and those responsible for providing the registered mail service used in the course of judicial or administrative procedures in accordance with their national legislation; whereas they may also indicate membership of the European Union by integrating the 12-star symbol;

(21) Whereas new services (services quite distinct from conventional services) and document exchange do not form part of the universal service and consequently there is no justification for their being reserved to the universal service providers; whereas this applies equally to self-provision (provision of postal services by the natural or legal person who is the originator of the mail, or collection and routing of these items by a third party acting solely on behalf of that person), which does not fall within the category of services;

(22) Whereas Member States should be able to regulate, by appropriate authorization procedures, on their territory, the provision of postal services which are not reserved to the universal service providers; whereas those procedures must be transparent, non-discriminatory, proportionate and based on objective criteria;

(23) Whereas the Member States should have the option of making the grant of licences subject to universal service obligations or contributions to a compensation fund intended to compensate the universal service provider for the provision of services representing an unfair financial burden; whereas Member States should be able to include in the authorizations an obligation that the authorized activities must not infringe the exclusive or special rights granted to the universal service providers for the reserved services; whereas an identification system for direct mail may be introduced for the purposes of supervision where direct mail is liberalized;

(24) Whereas measures necessary for the harmonization of authorization procedures laid down by the Member States governing the commercial provision to the public of non-reserved services will have to be adopted;

(25) Whereas, should this prove necessary, measures shall be adopted to ensure the transparency and non-discriminatory nature of conditions governing access to the public postal network in Member States;

(26) Whereas, in order to ensure sound management of the universal service and to avoid distortions of competition, the tariffs applied to the universal service should be objective, transparent, non-discriminatory and geared to costs;

(27) Whereas the remuneration for the provision of the intra-Community cross-border mail service, without prejudice to the minimum set of obligations derived from Universal Postal Union acts, should be geared to costs of delivery according to specified quality-of-service targets, thus justifying suitable systems providing for an appropriate coverage of costs and related specifically to the quality of service achieved;

(28) Whereas separate accounts for the different reserved services and non-reserved services are necessary in order to introduce transparency into the actual costs of the various services and in order to ensure that cross-subsidies from the reserved sector to the non-reserved sector do not adversely affect the competitive conditions in the latter;

(29) Whereas, in order to ensure the application of the principles set out in the previous three recitals, universal service providers should implement, within a reasonable time limit, cost accounting systems, which can be independently verified, by which costs can be allocated to services as accurately as possible on the basis of transparent procedures; whereas such requirements can be fulfilled, for example, by implementation of the principle of fully distributed costing; whereas such cost accounting systems may not be required in circumstances where genuine conditions of open competition exist;

(30) Whereas consideration should be given to the interests of users, who are entitled to services of a high quality; whereas, therefore, every effort must be made to improve and enhance the quality of services provided at Community level; whereas such improvements in quality require Member States to lay down standards, to be attained or surpassed by the universal service providers, in respect of the services forming part of the universal service;

(31) Whereas the quality of service expected by users constitutes an essential aspect of the services provided; whereas the evaluation standards for this quality of service and the levels of quality achieved must be published in the interests of users; whereas it is necessary to have available harmonized quality-of-service standards and a common methodology for measurement in order to be able to evaluate the convergence of the quality of service throughout the Community;

(32) Whereas national quality standards consistent with Community standards must be determined by Member States; whereas, in the case of intra-Community cross-border services requiring the combined efforts of at least two universal service providers from two different Member States, quality standards must be defined at Community level;

(33) Whereas compliance with these standards must be independently verified at regular intervals and on a harmonized basis; whereas users must have the right to be informed of the results of this verification and Member States should ensure that corrective action is taken where those results demonstrate that the standards are not being met;

(34) Whereas Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (7) applies to postal operators;

(35) Whereas the need for improvement of quality of service means that disputes have to be settled quickly and efficiently; whereas, in addition to the forms of legal redress available under national and Community law, a procedure dealing with complaints should be provided, which should be transparent, simple and inexpensive and should enable all relevant parties to participate;

(36) Whereas progress in the interconnection of postal networks and the interests of users require that technical standardization be encouraged; whereas technical standardization is indispensable for the promotion of interoperability between national networks and for an efficient Community universal service;

(37) Whereas guidelines on European harmonization provide for specialized technical standardization activities to be entrusted to the European Committee for Standardization;

(38) Whereas a committee should be established to assist the Commission with the implementation of this Directive, particularly in relation to the future work on the development of measures relating to the quality of Community cross-border service and technical standardization;

(39) Whereas, in order to ensure the proper functioning of the universal service and to ensure undistorted competition in the non-reserved sector, it is important to separate the functions of the regulator, on the one hand, and the operator, on the other; whereas no postal operator may be both judge and interested party; whereas it is for the Member State to define the statute of one or more national regulatory authorities, which may be chosen from public authorities or independent entities appointed for that purpose;

(40) Whereas the effects of the harmonized conditions on the functioning of the internal market in postal services will need to be the subject of an assessment; whereas, therefore, the Commission will present a report to the European Parliament and the Council on the application of this Directive, including the appropriate information on developments in the sector, particularly concerning economic, social, employment and technological aspects, as well as on quality of service, three years following the date of its entry into force, and in any event no later than 31 December 2000;

(41) Whereas this Directive does not affect the application of the rules of the Treaty, and in particular its rules on competition and the freedom to provide services;

(42) Whereas nothing shall prevent Member States from maintaining in force or introducing measures for the postal sector which are more liberal than those provided for by this Directive, nor, should this Directive lapse, from maintaining in force measures which they have introduced in order to implement it, provided in each case that such measures are compatible with the Treaty;

(43) Whereas it is appropriate that this Directive should apply until 31 December 2004 unless otherwise decided by the European Parliament and the Council on the basis of a proposal from the Commission;

(44) Whereas this Directive does not apply to any activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law;

(45) Whereas this Directive does not, in the case of undertakings which are not established in the Community, prevent the adoption of measures in accordance with both Community law and existing international obligations designed to ensure that nationals of the Member States enjoy similar treatment in third countries; whereas Community undertakings should benefit in third countries from treatment and effective access that is comparable to the treatment and access to the market which is conferred on nationals of the countries concerned within the Community context,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER 1 Objective and scope

Article 1

This Directive establishes common rules concerning:

- the provision of a universal postal service within the Community,

- the criteria defining the services which may be reserved for universal service providers and the conditions governing the provision of non-reserved services,

- tariff principles and transparency of accounts for universal service provision,

- the setting of quality standards for universal service provision and the setting-up of a system to ensure compliance with those standards,

- the harmonization of technical standards,

- the creation of independent national regulatory authorities.

Article 2

For the purposes of this Directive, the following definitions shall apply:

1. postal services: services involving the clearance, sorting, transport and delivery of postal items;

2. public postal network: the system of organization and resources of all kinds used by the universal service provider(s) for the purposes in particular of:

- the clearance of postal items covered by a universal service obligation from access points throughout the territory,

- the routing and handling of those items from the postal network access point to the distribution centre,

- distribution to the addresses shown on items;

3. access points: physical facilities, including letter boxes provided for the public either on the public highway or at the premises of the universal service provider, where postal items may be deposited with the public postal network by customers;

4. clearance: the operation of collecting postal items deposited at access points;

5. distribution: the process including sorting at the distribution centre and delivery of postal items to their addressees;

6. postal item: an item addressed in the final form in which it is to be carried by the universal service provider. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value;

7. item of correspondence: a communication in written form on any kind of physical medium to be conveyed and delivered at the address indicated by the sender on the item itself or on its wrapping. Books, catalogues, newspapers and periodicals shall not be regarded as items of correspondence;

8. direct mail: a communication consisting solely of advertising, marketing or publicity material and comprising an identical message, except for the addressee's name, address and identifying number as well as other modifications which do not alter the nature of the message, which is sent to a significant number of addressees, to be conveyed and delivered at the address indicated by the sender on the item itself or on its wrapping. The national regulatory authority shall interpret the term 'significant number of addressees` within each Member State and shall publish an appropriate definition. Bills, invoices, financial statements and other non-identical messages shall not be regarded as direct mail. A communication combining direct mail with other items within the same wrapping shall not be regarded as direct mail. Direct mail shall include cross-border as well as domestic direct mail;

9. registered item: a service providing a flat-rate guarantee against risks of loss, theft or damage and supplying the sender, where appropriate upon request, with proof of the handing in of the postal item and/or of its delivery to the addressee;

10. insured item: a service insuring the postal item up to the value declared by the sender in the event of loss, theft or damage;

11. cross-border mail: mail from or to another Member State or from or to a third country;

12. document exchange: provision of means, including the supply of ad hoc premises as well as transportation by a third party, allowing self-delivery by mutual exchange of postal items between users subscribing to this service;

13. universal service provider: a public or private entity designated by a Member State to ensure the provision of a universal postal service or parts thereof;

14. authorizations: means any permission setting out rights and obligations specific to the postal sector and allowing undertakings to provide postal services and, where applicable, to establish and/or operate postal networks for the provision of such services, in the form of a 'general authorization` or 'individual licence` as defined below:

- 'general authorization` means an authorization, regardless of whether it is regulated by a 'class licence` or under general law and regardless of whether such regulation requires registration or declaration procedures, which does not require the undertaking concerned to obtain an explicit decision by the national regulatory authority before exercising the rights stemming from the authorization,

- 'individual licence` means an authorization which is granted by a national regulatory authority and which gives an undertaking specific rights, or which subjects that undertaking's operations to specific obligations supplementing the general authorization where applicable, where the undertaking is not entitled to exercise the rights concerned until it has received the decision by the national regulatory authority;

15. terminal dues: the remuneration of universal service providers for the distribution of incoming cross-border mail comprising postal items from another Member State or from a third country;

16. sender: a natural or legal person responsible for originating postal items;

17. users: any natural or legal person benefiting from universal service provision as a sender or an addressee;

18. national regulatory authority: the body or bodies, in each Member State, to which the Member State entrusts, inter alia, the regulatory functions falling within the scope of this Directive;

19. essential requirements: general non-economic reasons which can induce a Member State to impose conditions on the supply of postal services. These reasons are the confidentiality of correspondence, security of the network as regards the transport of dangerous goods and, where justified, data protection, environmental protection and regional planning.

Data protection may include personal data protection, the confidentiality of information transmitted or stored and protection of privacy.

CHAPTER 2 Universal service

Article 3

1. Member States shall ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users.

2. To this end, Member States shall take steps to ensure that the density of the points of contact and of the access points takes account of the needs of users.

3. They shall take steps to ensure that the universal service provider(s) guarantee(s) every working day and not less than five days a week, save in circumstances or geographical conditions deemed exceptional by the national regulatory authorities, as a minimum:

- one clearance,

- one door-to-door delivery for every natural or legal person or, by way of derogation, under conditions at the discretion of the national regulatory authority, one delivery to appropriate installations.

4. Each Member State shall adopt the measures necessary to ensure that the universal service includes the following minimum facilities:

- the clearance, sorting, transport and distribution of postal items up to 2 kg,

- the clearance, sorting, transport and distribution of postal packages up to 10 kg,

- services for registered items and insured items.

5. The national regulatory authorities may increase the weight-limit of universal service coverage for postal packages to any weight not exceeding 20 kg and may lay down special arrangements for the door-to-door delivery of such packages.

Notwithstanding the weight-limit of universal service coverage for postal packages established by a given Member State, Member States shall ensure that postal packages received from other Member States and weighing up to 20 kg are delivered within their territories.

6. The minimum and maximum dimensions for the postal items in question shall be those laid down in the Convention and the Agreement concerning Postal Parcels adopted by the Universal Postal Union.

7. The universal service as defined in this Article shall cover both national and cross-border services.

Article 4

Each Member State shall, under procedures deemed appropriate, designate one or more postal operators to be responsible for providing universal service and shall notify the Commission of the operator(s) selected. In accordance with Community law, each Member State shall determine the obligations and rights assigned to the universal service provider(s) and shall publish them.

Article 5

1. Each Member State shall take steps to ensure that universal service provision is guaranteed and meets the following requirements:

- it shall offer a service guaranteeing compliance with the essential requirements,

- it shall offer an identical service to users under comparable conditions,

- it shall be made available without any form of discrimination whatsoever, especially without discrimination arising from political, religious or ideological considerations,

- it shall not be interrupted or stopped except in cases of force majeure,

- it shall evolve in response to the technical, economic and social environment and to the needs of users.

2. The provisions of paragraph 1 shall not preclude measures which the Member States take in accordance with requirements relating to public interest recognized by the Treaty, in particular Articles 36 and 56 thereof, concerning inter alia public morality, public security, including criminal investigations, and public policy.

Article 6

Member States shall take steps to ensure that users are regularly given sufficiently detailed and up-to-date information by the universal service provider(s) regarding the particular features of the universal services offered, with special reference to the general conditions of access to these services as well as to prices and quality standard levels. This information shall be published in an appropriate manner.

Member States shall notify the Commission, within 12 months of the date of entry into force of this Directive, how the information to be published in accordance with the first subparagraph is being made available. Any subsequent modifications shall be notified to the Commission at the earliest opportunity.

CHAPTER 3 Harmonization of the services which may be reserved

Article 7

1. To the extent necessary to ensure the maintenance of universal service, the services which may be reserved by each Member State for the universal service provider(s) shall be the clearance, sorting, transport and delivery of items of domestic correspondence, whether by accelerated delivery or not, the price of which is less than five times the public tariff for an item of correspondence in the first weight step of the fastest standard category where such a category exists, provided that they weigh less than 350 g.

2. To the extent necessary to ensure the maintenance of universal service, cross-border mail and direct mail may continue to be reserved within the price and weight limits laid down in paragraph 1.

3. As a further step towards the completion of the internal market of postal services, the European Parliament and the Council shall decide not later than 1 January 2000 and without prejudice to the competence of the Commission, on the further gradual and controlled liberalization of the postal market, in particular with a view to the liberalization of cross-border and direct mail, as well as on a further review of the price and weight limits, with effect from 1 January 2003, taking into account the developments, in particular economic, social and technological developments, that have occurred by that date, and also taking into account the financial equilibrium of the universal service provider(s), in view of further pursuing the goals of this Directive.

These Decisions shall be based upon a proposal from the Commission to be tabled before the end of 1998, following a review of the sector. Upon request by the Commission, Member States shall provide all the information necessary for completion of the review.

4. Document exchange may not be reserved.

Article 8

The provisions of Article 7 shall be without prejudice to Member States' right to organize the siting of letter boxes on the public highway, the issue of postage stamps and the registered mail service used in the course of judicial or administrative procedures in accordance with their national legislation.

CHAPTER 4 Conditions governing the provision of non-reserved services and access to the network

Article 9

1. For non-reserved services which are outside the scope of the universal service as defined in Article 3, Member States may introduce general authorizations to the extent necessary in order to guarantee compliance with essential requirements.

2. For non-reserved services which are within the scope of the universal service as defined in Article 3, Member States may introduce authorization procedures, including individual licences, to the extent necessary in order to guarantee compliance with essential requirements and to safeguard the universal service.

The granting of authorizations may:

- where appropriate, be made subject to universal service obligations,

- if necessary, impose requirements concerning the quality, availability and performance of the relevant services,

- be made subject to the obligation not to infringe the exclusive or special rights granted to the universal service provider(s) for the reserved postal services under Article 7 (1) and (2).

3. The procedures described in paragraphs 1 and 2 shall be transparent, non-discriminatory, proportionate and based on objective criteria. Member States must ensure that the reasons for refusing an authorization in whole or in part are communicated to the applicant and must establish an appeal procedure.

4. In order to ensure that the universal service is safeguarded, where a Member State determines that the universal service obligations, as provided for by this Directive, represent an unfair financial burden for the universal service provider, it may establish a compensation fund administered for this purpose by a body independent of the beneficiary or beneficiaries. In this case, it may make the granting of authorization subject to an obligation to make a financial contribution to that fund. The Member State must ensure that the principles of transparency, non-discrimination and proportionality are respected in establishing the compensation fund and when fixing the level of the financial contributions. Only those services set out in Article 3 may be financed in this way.

5. Member States may provide for an identification system for direct mail, allowing the supervision of such services where they are liberalized.

Article 10

1. The European Parliament and the Council, acting on a proposal from the Commission and on the basis of Articles 57 (2), 66 and 100a of the Treaty, shall adopt the measures necessary for the harmonization of the procedures referred to in Article 9 governing the commercial provision to the public of non-reserved postal services.

2. The harmonization measures referred to in paragraph 1 shall concern, in particular, the criteria to be observed and the procedures to be followed by the postal operator, the manner of publication of those criteria and procedures, as well as the appeal procedures to be followed.

Article 11

The European Parliament and the Council, acting on a proposal from the Commission and on the basis of Articles 57 (2), 66 and 100a of the Treaty, shall adopt such harmonization measures as are necessary to ensure that users and the universal service provider(s) have access to the public postal network under conditions which are transparent and non-discriminatory.

CHAPTER 5 Tariff principles and transparency of accounts

Article 12

Member States shall take steps to ensure that the tariffs for each of the services forming part of the provision of the universal service comply with the following principles:

- prices must be affordable and must be such that all users have access to the services provided,

- prices must be geared to costs; Member States may decide that a uniform tariff should be applied throughout their national territory,

- tariffs must be transparent and non-discriminatory.

Article 13

1. In order to ensure the cross-border provision of the universal service, Member States shall encourage their universal service providers to arrange that in their agreements on terminal dues for intra-Community cross-border mail, the following principles are respected:

- terminal dues shall be fixed in relation to the costs of processing and delivering incoming cross-border mail,

- levels of remuneration shall be related to the quality of service achieved,

- terminal dues shall be transparent and non-discriminatory.

2. The implementation of these principles may include transitional arrangements designed to avoid undue disruption on postal markets or unfavourable implications for economic operators provided there is agreement between the operators of origin and receipt; such arrangements shall, however, be restricted to the minimum required to achieve these objectives.

Article 14

1. Member States shall take the measures necessary to ensure, within two years of the date of entry into force of this Directive, that the accounting of the universal service providers is conducted in accordance with the provisions of this Article.

2. The universal service providers shall keep separate accounts within their internal accounting systems at least for each of the services within the reserved sector on the one hand and for the non-reserved services on the other. The accounts for the non-reserved services should clearly distinguish between services which are part of the universal service and services which are not. Such internal accounting systems shall operate on the basis of consistently applied and objectively justifiable cost accounting principles.

3. The accounting systems referred to in paragraph 2 shall, without prejudice to paragraph 4, allocate costs to each of the reserved and to the non-reserved services respectively in the following manner:

(a) costs which can be directly assigned to a particular service shall be so assigned;

(b) common costs, that is costs which cannot be directly assigned to a particular service, shall be allocated as follows:

(i) whenever possible, common costs shall be allocated on the basis of direct analysis of the origin of the costs themselves;

(ii) when direct analysis is not possible, common cost categories shall be allocated on the basis of an indirect linkage to another cost category or group of cost categories for which a direct assignment or allocation is possible; the indirect linkage shall be based on comparable cost structures;

(iii) when neither direct nor indirect measures of cost allocation can be found, the cost category shall be allocated on the basis of a general allocator computed by using the ratio of all expenses directly or indirectly assigned or allocated, on the one hand, to each of the reserved services and, on the other hand, to the other services.

4. Other cost accounting systems may be applied only if they are compatible with paragraph 2 and have been approved by the national regulatory authority. The Commission shall be informed prior to their application.

5. National regulatory authorities shall ensure that compliance with one of the cost accounting systems described in paragraphs 3 or 4 is verified by a competent body which is independent of the universal service provider. Member States shall ensure that a statement concerning compliance is published periodically.

6. The national regulatory authority shall keep available, to an adequate level of detail, information on the cost accounting systems applied by a universal service provider, and shall submit such information to the Commission on request.

7. On request, detailed accounting information arising from these systems shall be made available in confidence to the national regulatory authority and to the Commission.

8. Where a given Member State has not reserved any of the services reservable under Article 7 and has not established a compensation fund for universal service provision, as permitted under Article 9 (4), and where the national regulatory authority is satisfied that none of the designated universal service providers in that Member State is in receipt of State subvention, hidden or otherwise, the national regulatory authority may decide not to apply the requirements of paragraphs 2, 3, 4, 5, 6 and 7 of this Article. The national regulatory authority shall inform the Commission of all such decisions.

Article 15

The financial accounts of all universal service providers shall be drawn up, submitted to audit by an independent auditor and published in accordance with the relevant Community and national legislation applying to commercial undertakings.

CHAPTER 6 Quality of services

Article 16

Member States shall ensure that quality-of-service standards are set and published in relation to universal service in order to guarantee a postal service of good quality.

Quality standards shall focus, in particular, on routing times and on the regularity and reliability of services.

These standards shall be set by:

- the Member States in the case of national services,

- the European Parliament and the Council in the case of intra-Community cross-border services (see Annex). Future adjustment of these standards to technical progress or market developments shall be made in accordance with the procedure laid down in Article 21.

Independent performance monitoring shall be carried out at least once a year by external bodies having no links with the universal service providers under standardized conditions to be specified in accordance with the procedure laid down in Article 21 and shall be the subject of reports published at least once a year.

Article 17

Member States shall lay down quality standards for national mail and shall ensure that they are compatible with those laid down for intra-Community cross-border services.

Member States shall notify their quality standards for national services to the Commission, who will publish them in the same manner as the standards for intra-Community cross-border services referred to in Article 18.

National regulatory authorities shall ensure that independent performance monitoring is carried out in accordance with the fourth subparagraph of Article 16, that the results are justified, and that corrective action is taken where necessary.

Article 18

1. In accordance with Article 16, quality standards for intra-Community cross-border services are laid down in the Annex.

2. Where exceptional situations relating to infrastructure or geography so require, the national regulatory authorities may determine exemptions from the quality standards provided for in the Annex. Where national regulatory authorities determine exemptions in this manner, they shall notify the Commission forthwith. The Commission shall submit an annual report of the notifications received during the previous 12 months to the Committee established under Article 21 for its information.

3. The Commission shall publish in the Official Journal of the European Communities any adjustments made to the quality standards for intra-Community cross-border services and shall take steps to ensure the regular independent monitoring and the publication of performance levels certifying compliance with these standards and the progress accomplished. National regulatory authorities shall ensure that corrective action is taken where necessary.

Article 19

Member States shall ensure that transparent, simple and inexpensive procedures are drawn up for dealing with users' complaints, particularly in cases involving loss, theft, damage or non-compliance with service quality standards.

Member States shall adopt measures to ensure that those procedures enable disputes to be settled fairly and promptly with provision, where warranted, for a system of reimbursement and/or compensation.

Without prejudice to other possibilities of appeal under national and Community legislation, Member States shall ensure that users, acting individually or, where permitted by national law, jointly with organizations representing the interests of users and/or consumers, may bring before the competent national authority cases where users' complaints to the universal service provider have not been satisfactorily resolved.

In accordance with Article 16, Member States shall ensure that the universal service providers publish, together with the annual report on the monitoring of their performance, information on the number of complaints and the manner in which they have been dealt with.

CHAPTER 7 Harmonization of technical standards

Article 20

The harmonization of technical standards shall be continued, taking into account in particular the interests of users.

The European Committee for Standardization shall be entrusted with drawing up technical standards applicable in the postal sector on the basis of remits to it pursuant to the principles set out in Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (8).

This work shall take account of the harmonization measures adopted at international level and in particular those decided upon within the Universal Postal Union.

The standards applicable shall be published in the Official Journal of the European Communities once a year.

Member States shall ensure that universal service providers refer to the standards published in the Official Journal where necessary in the interests of users and in particular when they supply the information referred to in Article 6.

The Committee provided for in Article 21 shall be kept informed of the discussions within the European Committee for Standardization and the progress achieved in this area by that body.

CHAPTER 8 The committee

Article 21

The Commission shall be assisted by a committee composed of the representatives of the Member States and chaired by a representative of the Commission. The committee shall establish its own rules of procedure.

The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the Chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The Chairman shall not vote.

The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken.

The Council shall act by a qualified majority.

If, upon the expiry of a period of three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

CHAPTER 9 The national regulatory authority

Article 22

Each Member State shall designate one or more national regulatory authorities for the postal sector that are legally separate from and operationally independent of the postal operators.

Member States shall inform the Commission which national regulatory authorities they have designated to carry out the tasks arising from this Directive.

The national regulatory authorities shall have as a particular task ensuring compliance with the obligations arising from this Directive. They may also be charged with ensuring compliance with competition rules in the postal sector.

CHAPTER 10 Final provisions

Article 23

Without prejudice to Article 7 (3), three years after the date of entry into force of this Directive, and in any event no later than 31 December 2000, the Commission shall submit a report to the European Parliament and the Council on the application of this Directive, including the appropriate information about developments in the sector, particularly concerning economic, social, employment and technological aspects, as well as about quality of service.

The report shall be accompanied where appropriate by proposals to the European Parliament and the Council.

Article 24

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 12 months after the date of its entry into force. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication.

Article 25

This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.

Article 26

1. This Directive shall not prevent any Member State from maintaining or introducing measures which are more liberal than those provided for by this Directive. Such measures must be compatible with the Treaty.

2. Should this Directive lapse, the measures taken by the Member States to implement it may be maintained, to the extent that they are compatible with the Treaty.

Article 27

The provisions of this Directive, with the exception of Article 26, shall apply until 31 December 2004 unless otherwise decided in accordance with Article 7 (3).

Article 28

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No C 322, 2. 12. 1995, p. 22, and OJ No C 300, 10. 10. 1996, p. 22.

(2) OJ No C 174, 17. 6. 1996, p. 41.

(3) OJ No C 337, 11. 11. 1996, p. 28.

(4) Opinion of the European Parliament of 9 May 1996 (OJ No C 152, 27. 5. 1996, p. 20), Council common position of 29 April 1997 and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(5) OJ No C 42, 15. 2. 1993, p. 240.

(6) OJ No C 48, 16. 2. 1994, p. 3.

(7) OJ No L 95, 21. 4. 1993, p. 29.

(8) OJ No L 109, 26. 4. 1983, p. 8. Directive as last amended by Commission Decision 96/139/EC (OJ No L 32, 10. 2. 1996, p. 31).

ANNEX

Quality standards for intra-Community cross-border mail

The quality standards for intra-Community cross-border mail in each country are to be established in relation to the time limit for routing measured from end to end (1) for postal items of the fastest standard category according to the formula D + n, where D represents the date of deposit (2) and n the number of working days which elapse between that date and that of delivery to the addressee.

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The standards must be achieved not only for the entirety of intra-Community traffic but also for each of the bilateral flows between two Member States.

(1) End-to-end routing is measured from the access point to the network to the point of delivery to the addressee.

(2) The date of deposit to be taken into account shall be the same day as that on which the item is deposited, provided that deposit occurs before the last collection time notified from the access point to the network in question. When deposit takes place after this time limit, the date of deposit to be taken into consideration will be that of the following day of collection.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 22 November 1995 the Commission submitted a proposal, based on Articles 57 (2), 66 and 100a of the EC Treaty, for a Directive of the European Parliament and of the Council on common rules for the development of Community postal services and the improvement of quality of service.

2. The European Parliament delivered its first-reading opinion on 9 May 1996.

The Economic and Social Committee and the Committee of the Regions delivered their opinions on 28 March 1996 and 13 June 1996 respectively.

In the light of the opinion of the European Parliament, the Commission submitted an amended proposal on 31 July 1996.

3. On 29 April 1997, the Council adopted its common position in accordance with Article 189b of the Treaty.

II. OBJECTIVE

The Commission's proposal marks the first step in a policy aimed at completing the internal market and developing Community postal services. It seeks to introduce harmonized provisions concerning the universal service and the postal services that could be reserved for universal service providers, and also the improvement of quality of service, the promotion of standardization and certain related matters.

III. ANALYSIS OF THE COMMON POSITION

1. General remarks

Generally speaking, the Council's common position adopted the objective and scope as proposed by the Commission for this Directive (Article 1 of the proposal). With regard to the central provisions regarding the development of the reserved sector, the Council shared the concern expressed by the European Parliament in several of its amendments and opted for a more cautious stance than that proposed by the Commission. To that end, in the spirit of its resolution of 7 February 1994, it endeavoured to reconcile promotion of the gradual and controlled liberalization of the postal sector with a guarantee of the lasting provision of the universal service. It also thought it desirable to enlarge or clarify certain major provisions intended to establish the necessary framework for the development of the postal sector, in particular those relating to tariff principles, the transparency of accounts and the conditions governing the provision of non-reserved services.

When altering the Commission proposal and in its own approach to the European Parliament's amendments, the Council was also prompted by the following concern:

- to clarify the scope of certain provisions,

- to introduce greater flexibility for the Member States so as to reflect the diversity of national situations,

- to clarify the wording of the Directive and improve its presentation.

With regard to a number of the European Parliament's amendments, the Council adopted the Commission position as expressed in the latter's amended proposal.

2. Specific remarks

(Unless otherwise indicated, references are to the text of the common position)

(i) For the reasons mentioned above, the Council's common position made the following main amendments to the Commission proposal, which were endorsed by the Commission.

Definitions (Article 2)

Generally speaking, the definitions were adjusted to take account of the proceedings of the European Committee on Postal Regulation (CERP) within the European Conference of Postal and Telecommunications Administrations (CEPT). Some definitions were also added or deleted in the interests of consistency with the text of the Directive. The most significant changes include the addition of definitions for 'authorizations` and 'essential requirements` and the enlargement of the definition of 'direct mail`.

Scope of the universal service (Article 3)

In order to reflect different national situations, the Council wanted to introduce greater flexibility into this Article, as compared with the Commission proposal, with regard, in particular to:

- the assessment by the national regulatory authorities (NRA) of possible exceptions to frequency and to door-to-door deliveries,

- the fixing of a weight limit of 10 kg for postal packages, notwithstanding the option for the NRA to increase it to 20 kg, on the understanding that the delivery of such packages should also be provided for in intra-Community dealings.

It should also be emphasized that there is now an express reference to the coverage of postal sorting operations and that the reference in Article 7 of the Commission's proposal to the need to offer lasting guarantees for the universal service is now contained in Article 3 and in Article 5 of the common position.

Requirements of universal service provision (Article 5)

Requirements in this area were extended, through the new definition of 'essential requirements`, to include network security, data protection (in the spirit of European Parliament amendment No 38), environmental protection and regional planning. A new paragraph 2 also enables the Member States to invoke other requirements relating to public interest recognized by the Treaty, in particular Articles 36 and 56 thereof.

Harmonization of services which may be reserved (Articles 7 and 8)

In general, the Council moved away from these central provisions of the amended proposal for a Commission Directive and adopted, albeit in a different wording, the concerns voiced by the European Parliament in its series of amendments 16, 17, 18, 19, 20, 28, 40 and 54 in particular. Under the political compromise reached by the Council, Article 7 provides, in particular, for the option to reserve cross-border mail and direct mail, on the understanding that the European Parliament and the Council would be required to decide jointly before 1 January 2000 on the further gradual and controlled liberalization of the postal market on the basis of a proposal to be submitted by the Commission before the end of 1998. This decision, which would take into account economic, social and technological developments, would be aimed at the liberalization of cross-border mail and direct mail and a further review of price and weight limits and would take effect from 1 January 2003. The Article also makes it clear that document exchange may not be reserved.

In order, moreover, to take account of public action requirements and the effect of the price limits referred to in Article 7, the Council included one of the essential elements of European Parliament amendment 41 in Article 8 in the reference to the Member States' right to organize the registered mail service used in the course of judicial or administrative procedures.

Provision of non-reserved services (Article 9)

The Council took the view, in conjunction with the definition of 'authorizations` introduced into Article 2 of the common position, that this Article should distinguish between services which were within and those which were outside the scope of the universal service, it being understood that only in the case of the former could the Member States consider the most binding authorization arrangements. A very clear link has also been established with compliance with essential requirements, and the principle of proportionality has been added to the requirements with which procedures should comply.

Terminal dues (Article 13)

The text of the common position is generally more detailed than Article 14 of the Commission proposal, particularly as regards the principles which agreements on terminal dues concluded by universal service providers should respect. However, the Council did not go as far as the European Parliament in its amendment 81, for the reasons outlined by the Commission, namely mainly the need to take into account the principal responsibility of postal operators as regards tariff systems, such as terminal dues, and the fact that tariffs are not cost-aligned in certain Member States.

Transparency of accounts (Articles 14 and 15)

The wording adopted by the Council for these two Articles reflects two basic concerns. Firstly, the Council thought that more detailed cost accounting provisions should be laid down in order to keep pace with developments in the various postal services provided by the universal service operator and to ensure more effectively the necessary development of the postal sector. In the light of the foregoing, the Council also thought it unnecessary to go beyond Community and national rules of ordinary law applicable to the accounts of commercial undertakings by imposing a separate balance-sheet and profit-and-loss account for reserved and non-reserved services respectively, as envisaged in the Commission proposal.

Quality standards for cross-border services (Articles 16 and 18)

In Article 16, the Council took the view that such standards should be fixed initially by the legislator rather than by the Commission, which would, however, ensure the adjustment of these standards to technical progress or market developments with the assistance of the Committee referred to in Article 21. In order to take into account the different situations in the Community, slightly less demanding initial standards were laid down in the Annex to the common position than the provisional standards contained in Article 18 of the Commission proposal. The Council also thought that possible exemptions might be considered in certain exceptional circumstances and notified to the Commission. The text of Article 18 also contains an additional statement to the effect that national regulatory authorities should ensure that corrective action is taken where necessary.

Quality standards for national mail (Articles 16 and 17)

The Council confirmed the Commission position that the Member States should be allowed to fix these standards. However, the idea that statistical quality objectives be included in the Directive was not adopted. In the Council's view, the promotion of quality improvement would be ensured entirely satisfactorily be requiring compatibility with standards laid down for intra-Community cross-border services and by introducing a new provision in Article 17 whereby such standards would be published at Community level by the Commission.

Settlement of disputes and compensation (Article 19)

With regard to the introduction of a system of reimbursement and/or compensation, the Council, while agreeing with the aim pursued in the Commission proposal, wanted, in the spirit of part of European Parliament amendment 50, to allow the Member States a measure of flexibility in calling on them to provide for such a system where warranted.

Committee (Article 21)

In the light of the implementing powers conferred on the Commission by this Directive, the Council thought it more appropriate to replace the Advisory Committee prescribed by the Commission with a committee operating in accordance with a type IIIa procedure.

National regulatory authority (Article 22)

In view of the wealth of information which national regulatory authorities are already required to provide for the Commission, in particular pursuant to Articles 6, 14, 17, 18 and 22, the Council thought it inappropriate, in the interests of easing the administrative burden on these authorities, for the requirement to draw up an annual report to be retained in this Article.

Review (Article 23)

Given the expertise available within the Commission and the national regulatory authorities and in view of the committee provided for in Article 21, the Council thought it unnecessary to establish a body of experts to monitor developments in the sector, as proposed by the Commission.

(ii) In the case of a number of the amendments proposed by the European Parliament, the Council endorsed the Commission position as outlined in the latter's amended proposal:

- by adopting in its common position (sometimes with textual amendments):

- amendments 4, 9, 13, 21 and 57 in their entirety,

- part of amendment 1,

- the principle of amendments 15, 38, 39 (adopted in its entirety by the Commission) and 41 (second part);

- by not adopting amendments 2, 3, 5, 6, 7, 8, 10, 11, 12, 14, 22, 23 (second part), 24, 25, 29, 32, 33, 36, 37 (first and third parts), 42, 43, 44, 45, 47, 50, 51, 52, 53, 58 and 81.

(iii) The Council was, however, unable to endorse the Commission position on the following proposed European Parliament amendments, as outlined in its amended proposal:

Amendments adopted by the Council but not adopted by the Commission

Unlike the Commission, the Council adopted in its common position:

- amendment 34 in its entirety (albeit in a slightly different form),

- part of amendments 23 (first part), 35 and 41 (first part),

- the principle of amendments 26, 31 and 49,

- implicitly, the series of amendments relating to reserved services and the timetable for liberalization, i.e. European Parliament amendments 16, 17, 18, 19, 20, 28, 40 and 54 (see remarks on Article 7 under point (i) above).

Amendments adopted by the Commission but not by the Council

Amendment 27 (recital 37 of the Commission proposal)

The Council thought it unnecessary to introduce into this Directive a reference to any exploration of the possibility of issuing 'Euro` denominated stamps.

Amendment 30 (recital 41 of the Commission proposal)

By way of a compromise between the European Parliament's position as expressed in its amendments 29 and 30 and the Commission's position, the text of the common position provides for the deletion of recital 40 and the retention of recital 41 of the Commission proposal.

Amendment 37 (Article 3)

The second part of this amendment - the only part to be accepted by the Commission - relates to the conditions under which national regulatory authorities may derogate from the frequency with which the universal services referred to in this Article are provided. In the view of the Council, it was important to maintain the useful distinction regarding exceptional circumstances or geographical conditions which was provided for in the original Commission proposal.

Amendment 48 (Article 17)

This amendment was not adopted by the Council for the reasons mentioned previously under point (i) above.

Amendments 55 and 56 (Article 23)

In the light of the amendments to Article 23 in the aforementioned point (i) above, amendment 55 serves no purpose in the common position.

On the basis of the principle that the Commission would certainly, when drawing up its report, echo the legitimate concerns expressed by the European Parliament in its amendment 56, the Council saw no point in adding a new paragraph containing such a requirement.