WRITTEN QUESTION E-3523/00

by Cristiana Muscardini (UEN), Mauro Nobilia (UEN), Raffaele Costa (PPE-DE) and Guido Podestà (PPE-DE) to the Commission

(13 November 2000)

Subject: Infringement proceedings against Italy for failure to transpose Directive 97/67/EC correctly

In its reply P-2132/00(1) the Commission states that the infringement proceedings initiated against Italy are intended to safeguard the open competition arrangements existing on the Italian postal services market prior to the entry into force of Decree 261/99. However, the legal basis for the assertions made by the Commission appears extremely shaky.

The distinction between products freely available on the open market and those which may be withdrawn from that market within the bounds of what is necessary in order to ensure the provision of a universal service at prices which all users can afford is based on an assessment of added value, which is determined with reference to the price-limit criterion. That criterion, which is referred to in the relevant Community legislation and which has been adopted by all the Member States, has been completely overlooked by the Commission.

1. Does the Commission agree with the above assertion?

2. Would it not agree that the concept of special service, which has not yet been incorporated into Community law, has no place among the grounds for the infringement proceedings? Given that it only appears in the proposal for a second directive, how can it be a criterion for judging whether the law has been infringed? Can anyone be held liable for failure to comply with a requirement that does not yet exist?

3. Can the Commission provide information on the outcome of the investigation into the alleged state aid granted by the Netherlands to TPG?

(1) OJ C 81 E, 13.3.2001, p. 155.

Answer given by Mr Monti on behalf of the Commission

(25 January 2001)

On 21 December 2000 the Commission has concluded the proceedings the Honourable Member refers to by adopting a decision under Article 86(3) of the EC Treaty (IP/00/1522). In this Decision, the Commission concludes that the extension of the general letter mail monopoly, by means of Article 4(4) of the Italian Decree 261/99, into the neighbouring and competitive market for guaranteed day or time-certain deliveries offered as part of the hybrid electronic mail service, without any objective justification, is prohibited as such by Article 86(1) in conjunction with Article 82 of the EC Treaty.

The Commission has been extremely careful to define the market for guaranteed day or time-certain deliveries as precisely as possible. The Commission differentiates between conventional postal delivery services and services that offer a guarantee as to the day or time on which the correspondence is delivered. The conventional delivery service is governed by general delivery targets which never specify the exact day or exact time of delivery. Guaranteed day or time-certain deliveries and the conventional delivery services are thus not interchangeable. The added value of time or day certain deliveries may, in principle, be reflected in a price above the basic tariff. This does not, however, imply that the service must be sold at a minimum price that is five times above the basic tariff.

There is no objective justification for applying the monopoly price threshold to this service. Competition with respect to time or day certain deliveries does not jeopardise the public postal operators financial equilibrium. As the public postal operator does not at present provide day or time-certain deliveries, it will not suffer any loss of revenue, which it would have otherwise gained on this market. In addition, demand for the service is highly specialised. The revenue to be gained from delivering time-sensitive mailings exactly on a pre-arranged day or time is small when compared with the investment necessary in order to organise such deliveries. Furthermore, time-sensitive deliveries are a new service which creates additional mail volume. Therefore, they do not replace

or attract away demand from conventional (reserved) deliveries and consequently will not reduce the conventional mail volume and the revenue generated by the public postal operator in the reserved area. The Commission thinks that its Decision strikes the appropriate balance between the need to ensure the financial equilibrium of the public postal operator on the one hand and the need of Italian businesses for time sensitive mailings on the other hand.

The Decision of 21 December is concerned exclusively with the application of the competition rules and not about the Postal Directive. The Decision addresses particular competition issues raised by the Italian Decree 261/99. Without prejudice to the political discussions in the Parliament and Council on a new Postal Directive, the Commission is under a duty to take all action which it considers necessary in order to safeguard the competition rules (see, e.g., Case T-266/97 Vlaamse Televisie Maatschappij NV, at paragraph 75).

The Commission has started an informal investigation by addressing a request for information to the Dutch authorities. The Dutch authorities replied by providing the requested information. The Commission is currently examining the information received, with particular reference to the economic result achieved in the reserved area and to the extra costs related to the provision of the universal service.