COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive amending Directive 97/67 EC with regard to the further opening to competition of Community postal services

1- BACKGROUND

- On 30 May 2000 the Commission adopted a Proposal for a European Parliament and Council Directive amending Directive 97/67 EC concerning the further opening to competition of Community postal services [1]. The Proposal was submitted to the European Parliament and Council on 14 July 2000.

[1] COM(2000) 319 final, OJ C337, 28.11.2000

- At its 377th plenary session on 29 November 2000 [2], the Economic and Social Committee delivered its opinion on the proposal;

[2] OJ C 116 , 20/04/2001 P. 0099 - 0105

- At its 36th plenary session on 4 December 2000 [3], the Committee of the Regions delivered its opinion on the proposal;

[3] OJ C 144, 16.5.2001, p20

- The European Parliament adopted a legislative resolution [4] embodying its opinion on the Commission's proposal at its plenary session on 14 December 2000;

[4] OJ C 232, 17.8.2001, p244, 287

- On 21 March 2001, the Commission adopted an amended proposal [5] in the light of the positions of the Parliament, the Economic and Social Committee and the Committee of Regions;

[5] COM(2001) 109 final, OJ C 180 E , 26/06/2001 P. 0291 - 0300

- On 6 December 2001, the Council adopted the common position [6] (qualified majority) which is the subject of this communication.

[6] Not yet published in the OJ

2- OBJECTIVE OF THE COMMISSION PROPOSAL

The Directive aims to fulfil the mandate of Directive 97/67 EC to provide for a further gradual and controlled liberalisation of postal services, to take effect from 1 January 2003 and to set out a timetable for further opening. It also proposes to resolve various ancillary issues relating to the smooth functioning of the Internal Market in postal services.

3- COMMENTS ON THE COMMON POSITION

3.1 General considerations

3.1.1 The common position adopted by the Council retains the essence of the amended proposal of the Commission (hereinafter referred to as "the Proposal"). The common position sets a clear path towards the accomplishment of the internal market for postal services, through a gradual and controlled liberalisation of these services, combined with the continued provision of a high quality universal service. The proposed opening is similar to the one proposed by the Commission although it involves a longer time schedule. The provisions of the common position regarding a decisive step towards the full accomplishment of the internal market for postal services, ensure both the right of initiative of the Commission, and the full co-decision powers of the European Parliament and Council.

The Commission, therefore, agrees with the changes introduced by the Council, and considers that they will contribute to improve the quality and the content of the legislative text.

3.1.2 The common position takes full account of the amendments adopted by the Parliament in its first reading, and accepted by the Commission. All the European Parliament's amendments but one, that were included by the Commission in its amended Proposal, are included in the common position. The common position even goes beyond these by agreeing with the European Parliament's position concerning the issue of the definition for special services.

3.1.3 The main amendments introduced in the common position in comparison with the Proposal are discussed in detail below.

3.2 European Parliament's amendments

The European Parliament's amendments included in the Proposal (amendments 2, 6, 7, 24, 28, 29, 32, 39, 41, 58 and 46 partly) aim to:

- give weight to the social tasks of the Community - namely a high level of employment and social protection;

- bring out the benefits of increased competitiveness;

- stress that each Member State sets its own detailed universal service standards and quality;

- reinforce the role of national regulatory authorities;

- extend the complaints procedure requirements to the benefits of consumers;

- improve the drafting or the positioning of existing amendments.

All Parliament's amendments included in the Proposal but one were included in the common position. The Commission takes note that the common position of the Council does not include one of the Parliament's amendments (amendment 32) which was included in the amended proposal. This position is acceptable by the Commission.

3.3 Other changes introduced by the Council in the common position

3.3.1 Definition of special services

The Proposal included a definition for "special services", as services quite distinct from the universal service and involving a number of added value features. The aim of the Proposal was to improve the legal clarity of these services, as the current 97/67 EC Directive does not include any definition of them, apart from stating the principle that new services are outside the services that can be reserved (Recitals 18 and 21).

The common position does not include any definition for special services. In this respect, though the common position is different from the Proposal, it is fully in line with the European Parliament's position.

Setting a fixed definition for such services, which are both diverse and continuously developing, has proven to be controversial, particularly at a time when many special services are still emerging. Although the common position does not improve the legal clarity of the Directive, (further refining will continue to take place through the case by case approach), it does preserve the existing market opportunities.

The Commission can endorse the common position in this respect.

3.3.2 Liberalisation of outgoing cross-border mail services

The Proposal provided for the total opening of outgoing cross-border mail to competition, as from 1 January 2003.

The common position maintains this principle. However, it introduces the possibility for Member States to continue to reserve these services, to the extent necessary to ensure the provision of the universal service. The common position retains the essence of the Proposal and takes account of the Parliament's position, which requested that outgoing cross-border mail remains within the services that may continue to be reserved, to the extent necessary to ensure the maintenance of the universal service.

The conditions established in the common position with regard to possible exceptions are legitimate and sufficient.

The Commission can endorse the common position on this point.

3.3.3 Initial steps for further liberalisation of postal services

The Proposal provided for a one step decrease of the weight and price limits of the reserved area, from 350gr / 5 times the basic tariff to 50gr / 2,5 times the basic tariff as from 1 January 2003. The rationale for the Proposal was that the next stages of market opening should represent a gradual and controlled liberalisation that was significant enough to ensure that there could be real competition in the market.(A 50gr weight limit would open to competition 16% of the revenues that the universal service providers derive from postal services).

The common position maintains the principle that the next stages of the market opening process should be significant enough for actual competition to take place, (I.e. 50gr / 2,5 times the basic tariff), but provides for market opening to take place in two steps, to allow for a more gradual and controlled approach:

- 2003: decrease of the limits to 100gr / 3 times the basic tariff;

- 2006: decrease of the limits to 50gr / 2,5 times the basic tariff.

In doing so, the common position appears to be a compromise between the Proposal and the Parliament's position (150gr in 2003). The Commission can endorse the common position on this point.

3.3.4 Decisive step towards the accomplishment of the internal market for postal services

The Proposal provided for the next step towards market opening to take place on 1 January 2007. This step should be adopted by the European Parliament and Council through co-decision procedure. This step should follow a review of the sector focusing on the need to ensure the provision of the universal service in a competitive market environment.

The common position maintains the principle that a next stage for further market opening measures (decisive step) takes place after the 50gr weight step in 2006, and it provides for an implementation process similar to the one included in the Proposal. According to the common position, the Commission should conduct a study which will assess, for each Member State, the impact on universal service provision of the full accomplishment of the internal postal market in 2009. Based on the conclusions of the study, the Commission will submit a report, accompanied by a proposal, confirming, if appropriate, the date of 2009 for the full accomplishment of the internal postal market, or for another step, in the light of the study's conclusions.

The common position maintains the principles included in the Proposal:

- provisions for the gradual and controlled liberalisation process to continue after the 50gr weight step, in order that the internal market for postal services can be implemented;

- co-decision procedure, based on a Commission proposal, following a study assessing the impact on universal services of the full accomplishment of the internal postal market.

The time schedule for this decisive step represents a two-year delay compared with the Proposal. This is the consequence of the three-year delay before the initial steps decreasing the weight limit down to 50gr. Nevertheless, this is not considered to be a major setback in the context of the whole process. The Commission can therefore endorse the common position on this point.

3.3.5 Tasks of the National Regulatory Authorities (Art. 22)

The common position introduces an addition to Article 22 of the 97/67 EC Directive in order to enable the National Regulatory Authorities to establish controls and specific procedures, where appropriate, to ensure that the limits of the reserved services are respected.

These provisions state more clearly, in line with European Parliament's amendments, the role of National Regulatory Authorities, and particularly their role in securing that the universal service is maintained. The Commission can, therefore, endorse the common position on this point.

3.3.6 Lapsing of the Directive (Art. 27)

The Proposal provided for changing the date when the Directive will lapse from 31 December 2004, as in the current Directive, to 31 December 2006 (I.e. the day before the date the next market opening measures take place). The Proposal retained the principle, included in the current postal Directive, that the date when the Directive will lapse should be close to the anticipated date for the last stage for market opening, subject to co-decision procedure.

The common position retains this principle, and simply amends the date proposed by the Commission so that it is adapted to the modified time schedule of the common position. The common position provides for the date of Article 27 to be changed to 31 December 2008 (I.e. the day before the "decisive step" to take place).

The common position also provides that the authorisation procedures implemented in Member States, in conformity with the current Directive provisions described in Art. 9(2), will not be affected by this date. The Commission can endorse the common position on this point.

4- CONCLUSION

The Commission takes the view that the common position retains the essence of the Proposal and takes account of the European Parliament's position, including all amendments but one that were accepted by the Commission and incorporated in its Proposal.

The Commission can commend this common position to the European Parliament.