Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services
Date: 1998-02-06
Institutions: European Commission
Subjects: State aid, competition law, freedom to provide services, postal service, public sector, single market

C  39/2

EN

Official  Journal  of  the  European  Communities

6.2.98

Notice  from  the  Commission  on  the  application  of  the  competition  rules  to  the  postal  sector  and
on  the  assessment  of  certain  State  measures  relating  to  postal  services

(98/C  39/02)

(Text  with  EEA  relevance)

PREFACE

to 

Subsequent  to  the  submission  by  the  Commission  of  a
Green  Paper  on  the  development  of  the  single  market  for
the
postal  services(cid:216)(˛)  and  of  a  communication 
European  Parliament  and  the  Council,  setting  out  the
results  of  the  consultations  on  the  Green  Paper  and  the
measures  advocated  by  the  Commission(cid:216)(ˇ),  a  substantial
discussion  has  taken  place  on  the  future  regulatory
environment  for  the  postal  sector  in  the  Community.  By
Resolution  of  7  February  1994  on  the  development  of
Community  postal  services(cid:216)(—),  the  Council  invited  the
Commission  to  propose  measures  defining  a  harmonised
universal  service  and  the  postal  services  which  could  be
reserved.  In  July  1995,  the  Commission  proposed  a
package  of  measures  concerning  postal  services  which
consisted  of  a  proposal  for  a  Directive  of  the  European
Parliament  and  the  Council  on  common  rules  for  the
the
development  of  Community  postal  services  and 
improvement  of  quality  of  service(cid:216)((cid:209))  and  a  draft  of  the
present  Notice  on  the  application  of  the  competition
rules(cid:216)((cid:210)).

This  notice,  which  complements 
the  harmonisation
measures  proposed  by  the  Commission,  builds  on  the
results  of  those  discussions  in  accordance  with  the  prin(cid:220)
ciples  established  in  the  Resolution  of  7  February  1994.
It  takes  account  of  the  comments  received  during  the
public  consultation  on  the  draft  of  this  notice  published
in  December  1995,  of 
the  European  Parliament’s
resolution(cid:216)((cid:211))  on  this  draft  adopted  on  12  December
1996,  as  well  as  of  the  discussions  on  the  proposed
Directive  in  the  European  Parliament  and  in  Council.

The  Commission  considers  that  because  they  are  an
essential  vehicle  of  communication  and  trade,  postal
services  are  vital  for  all  economic  and  social  activities.
New  postal  services  are  emerging  and  market  certainty  is
needed  to  favour  investment  and  the  creation  of  new
employment  in  the  sector.  As  recognized  by  the  Court  of

Justice  of  the  European  Communities,  Community  law,
and  in  particular  the  competition  rules  of  the  EC  Treaty,
apply  to  the  post  sector(cid:216)((cid:212)).  The  Court  stated  that  "in  the
case  of  public  undertakings  to  which  Member  States
grant  special  or  exclusive  rights,  they  are  neither  to  enact
nor  to  maintain  in  force  any  measure  contrary  to  the
rules  contained  in  the  Treaty  with  regard  to  competition’
and  that  those  rules  "must  be  read  in  conjunction  with
Article  90(2)  which  provides  that  undertakings  entrusted
with  the  operation  of  services  of  general  economic
interest  are  to  be  subject  to  the  rules  on  competition  in
so  far  as  the  application  of  such  rules  does  not  obstruct
the  performance,  in  law  or  in  fact,  of  the  particular  tasks
assigned  to  them.’  Questions  are  therefore  frequently  put
to  the  Commission  on  the  attitude  it  intends  to  take,  for
purposes  of  the  implementation  of  the  competition  rules
contained  in  the  Treaty,  with  regard  to  the  behaviour  of
postal  operators  and  with  regard  to  State  measures
relating  to  public  undertakings  and  undertakings  to
which  the  Member  States  grant  special  or  exclusive  rights
in  the  postal  sector.

This  notice  sets  out  the  Commission’s  interpretation  of
the  relevant  Treaty  provisions  and  the  guiding  principles
according  to  which  the  Commission  intends  to  apply  the
competition  rules  of  the  Treaty  to  the  postal  sector  in
individual 
the  necessary
safeguards  for  the  provision  of  a  universal  service,  and
gives  to  enterprises  and  Member  States  clear  guidelines
so  as  to  avoid  infringements  of  the  Treaty.  This  Notice  is
without  prejudice  to  any  interpretation  to  be  given  by
the  Court  of  Justice  of  the  European  Communities.

cases,  while  maintaining 

to 

intends 

take  when  applying 

Furthermore,  this  Notice  sets  out  the  approach  the
the
Commission 
competition  rules  to  the  behaviour  of  postal  operators
and  when  assessing  the  compatibility  of  State  measures
restricting  the  freedom  to  provide  service  and/or  to
compete  in  the  postal  markets  with  the  competition  rules
and  other  rules  of  the  Treaty.  In  addition,  it  addresses
the 
issue  of  non(cid:220)discriminatory  access  to  the  postal
network  and  the  safeguards  required  to  ensure  fair
competition  in  the  sector.

(˛)(cid:217)COM(91)  476  final.
(ˇ)(cid:217)"Guidelines 

for 

the  development  of  Community  postal

services’  (COM(93)  247  of  2  June  1993).

(—)(cid:217)OJ  C  48,  16.2.1994,  p.  3.
((cid:209))(cid:217)OJ  C  322,  2.12.1995,  p.  22.
((cid:210))(cid:217)OJ  C  322,  2.12.1995,  p.  3.
((cid:211))(cid:217)OJ  C  20,  20.1.1997,  p.  159.

((cid:212))(cid:217)In  particular 

in  Joined  Cases  C(cid:220)48/90  and  C(cid:220)66/90,
Netherlands  and  Koninklijke  PTT  Nederland  and  PTT  Post
BV  v.  Commission  [1992(cid:129)  ECR  I(cid:220)565  and  Case  C(cid:220)320/91
Procureur  du  Roi  v. Paul  Corbeau  [1993(cid:129)  ECR  I(cid:220)2533.

6.2.98

EN

Official  Journal  of  the  European  Communities

C  39/3

Especially  on  account  of  the  development  of  new  postal
services  by  private  and  public  operators,  certain  Member
States  have  revised,  or  are  revising,  their  postal  legis(cid:220)
lation  in  order  to  restrict  the  monopoly  of  their  postal
organisations  to  what  is  considered  necessary  for  the
realisation  of  the  public(cid:220)interest  objective.  At  the  same
time,  the  Commission  is  faced  with  a  growing  number  of
complaints  and  cases  under  competition  law  on  which  it
must  take  position.  At  this  stage,  a  notice  is  therefore  the
appropriate  instrument  to  provide  guidance  to  Member
States  and  postal  operators, 
including  those  enjoying
special  or  exclusive  rights,  to  ensure  correct  implemen(cid:220)
tation  of  the  competition  rules.  This  Notice,  although  it
cannot  be  exhaustive,  aims  to  provide  the  necessary
guidance  for  the  correct  interpretation,  in  particular,  of
Articles  59,  85,  86,  90,  and  92  of  the  Treaty  in  individual
cases.  By  issuing  the  present  notice,  the  Commission  is
taking  steps  to  bring  transparency  and  to  facilitate
in  the
investment  decisions  of  all  postal  operators, 
interest  of  the  users  of  postal  services  in  the  European
Union.

As  the  Commission  explained  in  its  communication  of
11  September  1996  on  "Services  of  general  interest  in
Europe’(cid:216)((cid:213)),  solidarity  and  equal  treatment  within  a
market  economy  are  fundamental  Community  objectives.
Those  objectives  are  furthered  by  services  of  general
interest.  Europeans  have  come  to  expect  high(cid:220)quality
services  at  affordable  prices,  and  many  of  them  even
view  services  of  general  interest  as  social  rights.

As  regards,  in  particular,  the  postal  sector,  consumers  are
becoming  increasingly  assertive  in  exercising  their  rights
and  wishes.  Worldwide  competition  is  forcing  companies
to  seek  out  better  price  deals
using  such  services 
comparable  to  those  enjoyed  by  their  competitors.  New
technologies,  such  as  fax  or  electronic  mail,  are  putting
enormous  pressures  on  the  traditional  postal  services.
Those  developments  have  given  rise  to  worries  about  the
future  of  those  services  accompanied  by  concerns  over
employment  and  economic  and  social  cohesion.  The
economic  importance  of  those  services  is  considerable.
Hence  the  importance  of  modernising  and  developing
interest,  since  they  contribute  so
services  of  general 
much  to  European  competitiveness,  social  solidarity  and
quality  of  life.

The  Community’s  aim  is  to  support  the  competitiveness
of  the  European  economy  in  an  increasingly  competitive
world  and  to  give  consumers  more  choice,  better  quality

and 
lower  prices,  while  at  the  same  time  helping,
through  its  policies,  to  strengthen  economic  and  social
cohesion  between  the  Member  States  and  to  reduce
certain  inequalities.  Postal  services  have  a  key  role  to
play  here.  The  Community  is  committed  to  promoting
their  functions  of  general  economic  interest,  as  solemnly
confirmed  in  the  new  Article  7d,  introduced  by  the
Amsterdam  Treaty,  while 
improving  their  efficiency.
Market  forces  produce  a  better  allocation  of  resources
and  greater  effectiveness  in  the  supply  of  services,  the
principal  benficiary  being  the  consumer,  who  gets  better
quality  at  a  lower  price.  However,  those  mechanisms
sometimes  have  their  limits;  as  a  result  the  potential
benefits  might  not  extend  to  the  entire  population  and
the  objective  of  promoting  social  and  territorial  cohesion
in  the  Union  may  not  be  attained.  The  public  authority
must  then  ensure  that  the  general  interest  is  taken  into
account.

The  traditional  structures  of  some  services  of  general
economic  interest,  which  are  organised  on  the  basis  of
national  monopolies,  constitute  a  challenge  for  European
economic  integration.  This  includes  postal  monopolies,
even  where  they  are  justified,  which  may  obstruct  the
in  particular  by
smooth  functioning  of  the  market, 
sealing  off  a  particular  market  sector.

The  real  challenge  is  to  ensure  smooth  interplay  between
the  requirements  of  the  single  market  in  terms  of  free
movement,  economic  performance  and  dynamism,  free
competition,  and  the  general 
interest  objectives.  This
interplay  must  benefit  individual  citizens  and  society  as  a
whole.  This 
the
goalposts  are  constantly  moving:  the  single  market  is
continuing  to  expand  and  public  services,  far  from  being
fixed,  are  having  to  adapt  to  new  requirements.

is  a  difficult  balancing  act,  since 

in 

is  defined 

The  basic  concept  of  universal  service,  which  was  orig(cid:220)
inated  by  the  Commission(cid:216)((cid:214)),  is  to  ensure  the  provision
of  high(cid:220)quality  service  to  all  prices  everyone  can  afford.
terms  of  principles:
Universal  service 
equality,  universality,  continuity  and  adaptability;  and  in
terms  of  sound  practices:  openness 
in  management,
price(cid:220)setting  and  funding  and  scrutiny  by  bodies  inde(cid:220)
pendent  of  those  operating  the  services.  Those  criteria
are  not  always  all  met  at  national  level,  but  where  they
have  been  introduced  using  the  concept  of  European
universal  service,  there  have  been  positive  effects  for  the
development  of  general 
services.  Universal
service  is  the  expression  in  Europe  of  the  requirements

interest 

((cid:213))(cid:217)COM(96)  443  final.

((cid:214))(cid:217)See  footnote  8.

C  39/4

EN

Official  Journal  of  the  European  Communities

6.2.98

and  special  features  of  the  European  model  of  society  in
a  policy  which  combines  a  dynamic  market,  cohesion
and  solidarity.

High(cid:220)quality  universal  postal 
services  are  of  great
importance  for  private  and  business  customers  alike.  In
view  of  the  development  of  electronic  commerce  their
importance  will  even  increase  in  the  very  near  future.
Postal  services  have  a  valuable  role  to  play  here.

rules  concerning  the  reserved  area.  It  therefore  increases
legal  certainty  as  regards  the  legality  of  some  exclusive
and  special  rights 
in  the  postal  sector.  There  are,
however  State  measures  that  are  not  dealt  with  in  it  and
that  can  be  in  conflict  with  the  Treaty  rules  addressed  to
Member  States.  The  autonomous  behaviour  of  the  postal
operators  also  remains  subject  to  the  competition  rules  in
the  Treaty.

(hereinafter 

As  regards  the  postal  sector,  Directive  97/67/EC  has
been  adopted  by  the  European  Parliament  and  the
Council 
"the  Postal
refferred 
as 
introduce  common  rules  for
Directive’).  It  aims  to 
developing  the  postal  sector  and  improving  the  quality  of
service,  as  well  as  gradually  opening  up  the  markets  in  a
controlled  way.

to 

services 

including  a  high(cid:220)quality 

The  aim  of  the  Postal  Directive  is  to  safeguard  the  postal
service  as  a  universal  service  in  the  long  term.  It  imposes
on  Member  States  a  minimum  harmonised  standard  of
universal 
service
countrywide  with  regular  guaranteed  deliveries  at  prices
everyone  can  afford.  This 
the  collection,
transport,  sorting  and  delivery  of  letters  as  well  as  cata(cid:220)
logues  and  parcels  within  certain  price  and  weight  limits.
It  also  covers  registered  and  insured  (valeur  d~clar~e)
items  and  applies  to  both  domestic  and  cross(cid:220)border
is  given  to  considerations  of
deliveries.  Due  regard 
equal
continuity, 
treatment  as  well  as  adaptability.

confidentiality, 

impartiality 

involves 

and 

To  guarantee  the  funding  of  the  universal  service,  a
sector  may  be  reserved  for  the  operators  of  this  universal
service.  The  scope  of  the  reserved  sector  has  been
harmonised  in  the  Postal  Directive  According  to  the
Postal  Directive,  Member  States  can  only  grant  exclusive
rights  for  the  provision  of  postal  services  to  the  extent
that  this  is  necessary  to  guarantee  the  maintenance  of  the
universal  service.  Moreover,  the  Postal  Directive  estab(cid:220)
lishes  the  maximum  scope  that  Member  States  may
reserve  in  order  to  achieve  this  objective.  Any  additional
funding  which  may  be  required  for  the  universal  service
may  be 
into
commercial  operator’s  franchises;  for  example,  they  may
be  required  to  make  financial  contributions  to  a  compe(cid:220)
sation  fund  administered  for  this  purpose  by  a  body
independent  of 
the  beneficiary  or  beneficaries,  as
foreseen  in  Article  9  of  the  Postal  Directive.

found  by  writing  certain  obligations 

Article  90(2)  of  the  Treaty  provides  that  suppliers  of
services  of  general  interest  may  be  exempted  from  the
rules  in  the  Treaty,  to  the  extent  that  the  application  of
those  rules  would  obstruct  the  performance  of  the
general  interest  tasks  for  which  they  are  responsible.
That  exemption  from  the  Treaty  rules  is  however  subject
is
to  the  priciple  of  proportionality.  That  principle 
designed  to  ensure  the  best  match  between  the  duty  to
provide  general  interest  services  and  the  way  in  which
the  services  are  actually  provided,  so  that  the  means  used
are  in  proportion  to  the  ends  pursued.  The  principle  is
formulated  to  allow  for  a  flexible  and  context(cid:220)sensitive
balance 
technical  and
budgetary  constraints  that  may  vary  from  one  sector  to
another.  It  also  makes  for  the  best  possible  interaction
between  market 
interest
requirements,  by  ensuring  that  the  means  used  to  satisfy
the  requirements  do  not  unduly 
the
smooth  running  of  the  single  European  market  and  do
not  affect  trade  to  an  extent  that  would  be  contrary  to
the  Community  interest(cid:216)(˛˝).

takes  account  of 

interfere  with 

efficiency 

general 

that 

and 

the 

including 

the  Treaty  rules, 

the
The  application  of 
possible  application  of  the  Article  90(2)  exemption,  as
regards  both  behaviour  of  undertakings  and  State
measures  can  only  be  done  on  a  case(cid:220)by(cid:220)case  basis.  It
seems,  however,  highly  desirable,  in  order  to  increase
legal  certainty  as  regards  measures  not  covered  by  the
Postal  Directive,  to  explain  the  Commission’s  interpre(cid:220)
tation  of  the  Treaty  and  the  approach  that  it  aims  to
follow 
those  rules.  In
future  application  of 
particular,  the  Commission  considers  that,  subject  to  the
provisions  of  Article  90(2)  in  relation  to  the  provision  of
the  universal  service,  the  application  of  the  Treaty  rules
would  promote  the  competitiveness  of  the  undertakings
active 
the  postal  sector,  benefit  consumers  and
contribute  in  a  positive  way  to  the  objectives  of  general
interest.

its 

in 

in 

The  postal  sector  in  the  European  Union  is  characterised
by  areas  which  Member  States  have  reserved  in  order  to
guarantee  universal  service  and  which  are  now  being

The  Postal  Directive  lays  down  a  minimum  common
standard  of  universal  services  and  establishes  common

(˛˝)(cid:217)See  judgment  of  23  October  1997  in  Cases  C(cid:220)157/94  to
C(cid:220)160/94 
"Member  State  Obligations  -  Electricity’
Commission  v.  Netherlands  (157/94),  Italy  (158/94).  France
(154/94),  Spain  (160/94).

6.2.98

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Official  Journal  of  the  European  Communities

C  39/5

effects 

between  Member 

in  particular  the  competition  rules, 

harmonised  by  the  Postal  Directive  in  order  to  limit
distortive 
States.  The
Commission  must,  according  to  the  Treaty,  ensure  that
postal  monopolies  comply  with  the  rules  of  the  Treaty,
in  order  to
and 
ensure  maximum  benefit  and  limit  any  distortive  effects
for  the  consumers.  In  pursuing  this  objective  by  applying
the  competition  rules  to  the  sector  on  a  case(cid:220)by(cid:220)case(cid:220)
basis,  the  Commission  will  ensure  that  monopoly  power
is  not  used  for  extending  a  protected  dominant  position
into  liberalised  activities  or  for  unjustified  discrimination
in  favour  of  big  accounts  at  the  expense  of  small  users.
The  Commission  will  also  ensure  that  postal  monopolies
granted  in  the  area  of  cross(cid:220)border  services  are  not  used
for  creating  or  maintaining  illicit  price  cartels  harming
the  interest  of  companies  and  consumers  in  the  European
Union.

facilities, 

"access  points’:  physical 
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;

including 

"clearance’:  the  operation  of  collecting  postal  items
deposited  at  access  points;

the  process 

the
"distribution’: 
distribution  centre  to  delivery  of  postal  items  to  their
addresses;

sorting  at 

from 

the  applicability  of 

This  notice  explains  to  the  players  on  the  market  the
practical  consequences  of 
the
competition  rules  to  the  postal  sector,  and  the  possible
derogations  from  the  principles.  It  sets  out  the  position
the  Commission  would  adopt,  in  the  context  set  by  the
continuing  existence  of  special  and  exclusive  rights
in  assessing
as  harmonised  by  the  Postal  Directive, 
individual  cases  or  before  the  Court  of  Justice 
in
cases  referred  to  the  Court  by  national  courts  under
Article  177  of  the  Treaty.

1. DEFINITIONS

In  the  context  of  this  notice,  the  following  defi(cid:220)
nitions  shall  apply(cid:216)(˛˛):

"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,  cata(cid:220)
logues,  newspapers,  periodicals  and  postal  packages
containing  merchandise  with  or  without  commercial
value;

"item  of  corresondance’:  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;

services:’  services 

"postal 
sorting,  transport  and  delivery  of  postal  items;

involving 

the  clearance,

"public  postal  nework’:  the  system  of  organisation  and
resources  of  all  kinds  used  by  the  universal  service
provider(s)  for  the  purposes  in  particular  of:

-(cid:217)the  clearance  of  postal 

items  covered  by  a
universal  service  obligation  from  access  points
throughout  the  territory,

-(cid:217)the  routing  and  handling  of  those  items  from  the
postal  network  access  point  to  the  distribution
centre,

-(cid:217)distribution  to  the  addresses  shown  on  items;

"direct  mail’:  a  communication  consisting  solely  of
advertising,  marketing  or  publicity  material  and
identical  message,  except  for  the
comprising  an 
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  addresses,  to  be  conveyed  and  delivered
at  the  address  indicated  by  the  sender  on  the  item
itself  or  on  its  wrapping.  The  National  Regulatory
Authority 
"significant
number  of  addressees’  within  each  Member  State
and  publish  an  appropriate  definition.  Bills,  invoices,
financial 
non(cid:220)identical
and 
messages  should  not  be  regarded  as  direct  mail.  A
communication  combining  direct  mail  with  other
items  within  the  same  wrapping  should  not  be
regarded  as  direct  mail.  Direct  mail  includes  cross(cid:220)
border  as  well  as  domestic  direct  mail;

statements 

interpret 

should 

other 

term 

the 

(˛˛)(cid:217)The  definitions  will  be  interpreted  in  the  light  of  the  Postal
Directive  and  any  changes  resulting  from  review  of  that
Directive.

"document  exchange’:  provision  of  means,  including
the  supply  of  ad  hoc  premises  as  well  as  transpor(cid:220)
tation  by  a  third  party,  allowing  self(cid:220)delivery  by

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mutual  exchange  of  postal 
subscribing  to  this  service;

items  between  users

"terminal  dues’:  the  remuneration  of  universal  service
providers  for  the  distribution  of 
incoming  cross(cid:220)
border  mail  comprising  postal  items  from  another
Member  State  or  from  a  third  country;

supplementary 

"express  mail  service’:  a  service  featuring,  in  addition
to  greater  speed  and  reliability  in  the  collection,
distribution,  and  delivery  of  items,  all  or  some  of  the
following 
facilities:  guarantee  of
delivery  by  a  fixed  date;  collection  from  point  of
origin;  personal  delivery  to  addressee;  possibility  of
in  transit;
changing  the  destination  and  addresse 
item
confirmation 
the 
to  sender  of  receipt  of 
items
dispatched;  monitoring  and 
dispatched;  personalised  service  for  customers  and
provision  of  an  {  la  carte  service,  as  and  when
required.  Customers  are  in  principle  prepared  to  pay
a  higher  price  for  this  service;

tracking  of 

"universal 
service  provider’:  the  public  or  private
entity  providing  a  universal  postal  service  or  parts
thereof  within  a  Member  State,  the  identity  of  which
has  been  notified  to  the  Commission;

"exclusive  rights’:  rights  granted  by  a  Member  State
which  reserve  the  provision  of  postal  services  to  one
undertaking  through  any  legislative,  regulatory  or
administrative  instrument  and  reserve  to  it  the  right
to  provide  a  postal  service,  or  to  undertake  an
activity,  within  a  given  geographical  area;

"special  rights’:  rights  granted  by  a  Member  State  to  a
limited  number  of  undertakings  through  any  legis(cid:220)
lative,  regulatory  or  administrative  instrument  which,
within  a  given  geographical  area:

-(cid:217)limits,  on  a  discretionary  basis,  to  two  or  more
the  number  of  such  undertakings  authorised  to
provide  a  service  or  undertake  an  activity,
objective,
otherwise 
proportional  and  non(cid:220)discriminatory  criteria,  or

according 

than 

to 

-(cid:217)designates,  otherwise  than  according  to  such
criteria, 
competing  undertakings  as
undertakings  authorised  to  provide  a  service  or
undertake  an  acitivity,  or

several 

-(cid:217)confers  on  any  undertaking  or  undertakings,
otherwise  than  according  to  such  criteria,  legal
or  regulatory  advantages  which 
substantially
affect  the  ability  of  any  other  undertaking  to
provide  the  same  service  or  undertake  the  same
activity 
in  the  same  geographical  area  under
substantially  comparable  conditions;

the 

sender  and 

"intermediary’:  any  economical  operator  who  acts
between 
service
provider,  by  clearing,  routing  and/or  pre(cid:220)sorting
postal  items,  before  channelling  them  into  the  public
postal  network  of  the  same  or  of  another  country;

the  universal 

"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  the  Postal  Directive;

general 

requirements’: 

"essential 
non(cid:220)economic
reasons  which  cna  induce  a  Member  State  to  impose
conditions  on  the  supply  of  postal  services(cid:216)(˛ˇ).  These
reasons  are:  the  confidentiality  of  correspondence,
security  of  the  network  as  regards  the  transport  of
dangerous 
justified,  data
protection,  environmental  protection  and  regional
planning.

and,  where 

goods 

protection  may 

personal  data
Data 
protection,  the  confidentiality  of  information  trans(cid:220)
mitted  or  stored  and  protection  of  privacy.

include 

2. MARKED  DEFINITION  AND  POSITION  ON  THE

POSTAL  MARKET

a)(cid:217)Geographical  and  product  market  definition

2.1. Articles  85  and  86  of  the  Treaty  prohibit  as  incom(cid:220)
patible  with  the  common  market  any  conduct  by  one
or  more  undertakings  that  may  negatively  affect
trade  between  Member  States  which  involves  the
prevention,  restriction,  or  distortion  of  competition
and/or  an  abuse  of  a  dominant  position  within  the
common  market  or  a  substantial  part  of  it.  The  terri(cid:220)
tories  of  the  Member  States  constitute  separate
geographical  markets  with  regard  to  the  delivery  of
domestic  mail  and  also  with  regard  to  the  domestic
delivery  of 
cross(cid:220)border  mail,  owing
primarily  to  the  exclusive  rights  of  the  operators

inward 

(˛ˇ)(cid:217)The  meaning  of  this  important  phrase  in  the  context  of

Community  competition  law  is  explained  in  paragraph  5.3.

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referred  to 
in  point  4.2  and  to  the  restrictions
imposed  on  the  provision  of  postal  services.  Each  of
the  geographical  markets  constitutes  a  substantial
part  of  the  common  market.  For  the  determination
of  "relevant  market’,  the  country  of  origin  of  inward
cross(cid:220)border  mail  is  immaterial.

communications  services,  as  a  complement  to  adver(cid:220)
tising  in  the  media.  Morevover,  the  senders  of  direct
mail  do  not  necessarily  require  the  same  short
delivery  times,  priced  at  first(cid:220)class 
letter  tariffs,
asked  for  by  customers  requesting  services  on  the
market  as  referred  to  above.  The  fact  that  both
services  are  not  always  directly 
interchangeable
indicates  the  possibility  of  distinct  markets.

things, 

2.2. As  regards  the  product  markets,  the  differences  in
practice  between  Member  States  demonstrate  that
recognition  of  several  distinct  markets  is  necessary  in
some  cases.  Separation  of  different  product(cid:220)markets
is  relevant,  among,  other 
to  special  or
exclusive  rights  granted.  In  its  assessment  of  indi(cid:220)
vidual  cases  on  the  basis  of  the  different  market  and
regulatory  situations  in  the  Member  States  and  on
the  basis  of  a  harmonised  framework  provided  by
the  Postal  Directive, 
in
principle  consider  that  a  number  of  distinct  product
markets  exist,  like  the  clearance,  sorting,  transport
and  delivery  of  mail,  and  for  example  direct  mail,
and  cross(cid:220)border  mail.  The  Commission  will  take
into  account  the  fact  that  these  markets  are  wholly
or  partly  liberalised  in  a  number  of  Member  States.
The  Commission  will  consider  the  following  markets
when  assessing  individual  cases.

the  Commission  will 

2.3. The  general  letter  service  concerns  the  delivery  of
items  of  correspondence  to  the  addresses  shown  on
the  items.

2.4. Other  distinct  markets 

from 

include,  for  example,  the
express  mail  market,  the  document  exchange  market,
as  well  as  the  market  for  new  services  (services  quite
distinct 
services).  Activities
combining  the  new  telecommunications  technologies
and  some  elements  of  the  postal  services  may  be,  but
are  not  necessarily,  new  services  within  the  meaning
of  the  Postal  Directive.  Indeed,  they  may  reflect  the
adaptability  of  traditional  services.

conventinal 

items  transported.  It 

A  document  exchange  differs  from 
the  market
referred  to  in  point  2.3  since  it  does  not  include  the
collection  and  the  delivery  to  the  addressee  of  the
postal 
involves  only  means,
including  the  supply  of  ad  hoc  premises  as  well  as
transportation  by  a  third  party,  allowing  self(cid:220)delivery
by  mutual  exchange  of  postal  items  between  users
subscribing  to  this  service.  The  users  of  a  document
exchange  are  members  of  a  closed  user  group.

incluce 

It  does  not 
the
provision  of  postal  services  by  the  natural  or  legal
person  (including  a  sister  or  subsidiary  organisation)
who  is  the  originator  of  the  mail.

self(cid:220)provision, 

that 

is 

Also  excluded,  in  accordance  with  pratice  in  many
Member  States,  are  such  postal  items  as  are  not
items  of  correspondence, 
considered 
they
consist  of 
identical  copies  of  the  same  written
communication  and  have  not  been  altered  by
additions,  deletions  or  indications  other  than  the
name  of  the  addressee  and  his  address.  Such  items
are  magazines,  newspapers,  printed  periodicals  cata(cid:220)
logues,  as  well  as  goods  or  documents  accom(cid:220)
panying  and  relating  to  such  items.

since 

the 

The  express  mail  service  also  differs  from  the  market
referred  to  in  point  2.3  owing  to  the  value  added  by
comparison  with  the  basic  postal  service(cid:216)(˛—).  In
addition  to  faster  and  more  reliable  collection,  trans(cid:220)
portation  and  delivery  of  the  postal  items,  an  express
mail  service  is  characterised  by  the  provision  of  some
or  all  of 
following  supplementary  services:
guarantee  of  delivery  by  a  given  date;  collection
from  the  sender’s  address;  delivery  to  the  addressee
in  person;  possibility  of  a  change  of  destination  and
addressee  in  transit;  conformation  to  the  sender  of
delivery; 
personalised
treatment  for  customers  and  the  offer  of  a  range  of
services  according  to  requirements.  Customers  are  in
principle  prepared  to  pay  a  higher  price  for  this
service.  The  reservable  services  as  defined  in  the
Postal  Directive  may  include  accelerated  delivery  of
items  of  domestic  correspondence  falling  within  the
prescribed  price  and  weight  limits.

tracking 

tracing; 

and 

Direct  mail  is  covered  by  the  definition  of  items  of
correspondence.  However,  direct  mail  items  do  not
contain  personalised  messages.  Direct  mail  addresses
for  commercial
the  needs  of  specific  operators 

(˛—)(cid:217)Commission  Decisions  90/16/EEC  (OJ  L  10,  12.1.1990,

p.  47)  and  90/456/EEC  (OJ  L  233,  28.8.1990,  p.  19).

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6.2.98

in 

in 

this 

integrated 

2.5. Without  prejudice  to  the  definition  of  reservable
services  given 
the  Postal  Directive,  different
activities  can  be  recognised,  within  the  general  letter
service,  which  meet  distinct  needs  and  should  in
principle  be  considered  as  different  markets;  the
markets  for  the  clearance  and  for  the  sorting  of
mail,  the  market  for  the  transport  of  mail  and,
finally,  the  delivery  of  mail  (domestic  or  inward
cross(cid:220)border).  Different  categories  of  customers
must  be  distinguished 
respect.  Private
customers  demand  the  distinct  products  or  services
as  one 
service.  However,  business
customers,  which  represent  most  of  the  revenues  of
the  operators  referred  to  in  point  4.2,  actively  pursue
the 
distinct
components  of  the  final  service  alternative  solutions
(with  regard  to  quality  of  service  levels  and/or  costs
incurred)  which  are  in  some  cases  provided  by,  or
to,  different  operators.  Business
sub(cid:220)contracted 
customers  want  to  balance  the  advantages  and  disad(cid:220)
vantages  of  self(cid:220)provision  versus  provision  by  the
postal  operator.  The  existing  monopolies  limit  the
external  supply  of  those  individual  services,  but  they
would  otherwise  limit  the  external  supply  of  those
individual  according 
to  market  conditions.  That
market  reality  supports  the  opinion  that  clearance,
items
sorting, 
a
different 
constitute 
From 
competition(cid:220)law  point  of  view, 
the  distinction
between  the  four  markets  may  be  relevant.

transport  and  delivery  of  postal 

markets(cid:216)(˛(cid:209)). 

substituting 

possibilities 

for 

of 

than 

the  one  providing 

That  is  the  case  for  cross(cid:220)border  mail  where  the
clearence  and  transport  will  be  done  by  a  postal
the
operator  other 
distribution.  This  is  also  the  case  as  regards  domestic
mail,  since  most  postal  operators  permit  major
customers  to  undertake  sorting  of  bulk  traffic  in
return  for  discounts,  based  on  their  public  tariffs.
The  deposit  and  collection  of  mail  and  method  of
payment  also  vary 
in  these  circumstances.  Mail
rooms  of  larger  companies  are  now  often  operated
by  intermediaries,  which  prepare  and  pre(cid:220)sort  mail
before  handing  it  over  to  the  postal  operator  for
final  distribution.  Moreover,  all  postal  operators
allow 
to
distribution.  Moreover,  all  postal  operators  allow
some  kind  of  downstream  access  to  their  postal
even
network, 
demanding  (sorted)  mail  to  be  deposited  at  an
expediting  or  sorting  centre.  This  permits  in  many
cases  a  higher  reliability  (quality  of  service)  by
bypassing  any  sources  of 
the  postal
network  upstream.

some  kind  of  downstream 

allowing  or 

instance  by 

failure 

access 

for 

in 

(b)(cid:217)Dominant  position

2.6. Since  in  most  Member  States  the  operator  referred
to  in  point  4.2  is,  by  virtue  of  the  exclusive  rights
granted  to  him,  the  only  operator  controlling  a
public  postal  network  covering  the  whole  territory  of
the  Member  State,  such  an  operator  has  a  dominant
position  within  the  meaning  of  Article  86  of  the
Treaty  on  the  national  market  for  the  distribution  of
items  of  correspondence.  Distribution  is  the  service
to  the  user  which  allows  for  important  economies  of
scale,  and  the  operator  providing  this  service  is  in
most  cases  also  dominant  on  the  markets  for  the
clearance,  sorting  and  transport  of  mail.  In  addition,
the 
distribution,
particularly  if  it  also  operates  post  office  premises,
has  the  important  advantage  of  being  regarded  by
the  users  as  the  principal  postal  enterprise,  because  it
is  the  most  conspicuous  one,  and  is  therefore  the
natural 
this  dominant
in  most  Member  States,
position  also 
services  such  as  registered  mail  or  special  delivery
services,  and/or  some  sectors  of  the  parcels  market.

first  choice.  Moreover, 

enterprise  which 

includes, 

provides 

(c)(cid:217)Duties  of  dominant  postal  operators

2.7. According  to  point  (b)  of  the  second  paragraph  of
Article  86  of  the  Treaty,  an  abuse  may  consist  in
limiting  the  performance  of  the  relevant  service  to
the  prejudice  of  its  consumers.  Where  a  Member
State  grants  exclusive  rights  to  an  operator  referred
to  in  point  4.2  for  services  which  it  does  not  offer,
or  offers  in  conditions  not  satisfying  the  needs  of
customers  in  the  same  way  as  the  services  which
competitive  economic  operators  would  have  offered,
the  Member  State  induces  those  operators,  by  the
simple  exercise  of  the  exclusive  right  which  has  been
conferred  on  them,  to 
limit  the  supply  of  the
relevant  service,  as  the  effective  exercise  of  those
is, 
activities  by  private  companies 
this  case,
the  case  where
is  particularly 
impossible.  This 
the  postal  service
to  protect 
measures  adopted 
restrict  the  provision  of  other  distinct  services  on
distinct  or  neighbouring  markets  such  as  the  express
mail  market.  The  Commission  has  requested  several
Member  States  to  abolish  restrictions  resulting  from
exclusive  rights  regarding  the  provision  of  express
mail  services  by  international  couriers(cid:216)(˛(cid:210)).

in 

(˛(cid:209))(cid:217)See  Commission  Notice  on  the  definition  of  the  relevant
market  for  the  purpose  of  the  application  of  Community
competition  law  (OJ  C  372,  9.12.1997,  p.  5).

(˛(cid:210))(cid:217)See  footnote  13.

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to 

failing 

inefficient  service  and 

Another  type  of  possible  abuse  involves  providing  a
seriously 
take
advantage  of  technical  developments.  This  harms
customers  who  are  prevented  from  choosing  between
alternative  suppliers.  For  instance,  a  report  prepared
for  the  Commission(cid:216)(˛(cid:211))  in  1994  showed  that,  where
they  have  not  been  subject  to  competition,  the  public
postal  operators 
in  the  Member  States  have  not
made  any  significant  progress  since  1990  in  the  stan(cid:220)
dardisation  of  dimensions  and  weights.  The  report
also  showed  that  some  postal  operators  practised
hidden 
and
non(cid:220)reserved  services  (see  points  3.1  and  3.4),  which
explained,  according  to  that  study,  most  of  the  price
disparities 
1994,
between  Member  States 
especially  penalising  residential  users  who  do  not
qualify  for  any  discounts  schemes,  since  they  make
use  of  reserved  services  that  are  priced  at  a  higher
level  than  necessary.

cross(cid:220)subsidies 

reserved 

between 

in 

The  examples  given  illustrate  the  possibility  that,
where  they  are  granted  special  or  exclusive  rights,
postal  operators  may  let  the  quality  of  the  service
decline(cid:216)(˛(cid:212))  and  omit  to  take  necessary  steps  to
improve 
the
Commission  may  be  induced  to  act  taking  account
of  the  conditions  explained  in  point  8.3.

service  quality. 

cases, 

such 

In 

As  regards  cross(cid:220)border  postal  services,  the  study
referred  to  above  showed  that  the  quality  of  those
services  needed  to  be  improved  significantly  in  order
to  meet  the  needs  of  customers,  and  in  particular  of
residential  customers  who  cannot  afford  to  use  the
services  of  courier  companies  or  facsimile  trans(cid:220)
mission  instead.  Independent  measurements  carried
out  in  1995  and  1996  show  an  improvement  of
those
quality  of 

since  1994.  However, 

service 

(˛(cid:211))(cid:217)UFC  -  Que  Choisir,  Postal  services 

in  the  European

Union,  April  1994.

(˛(cid:212))(cid:217)In  many  Member  States  users  could,  some  decades  ago,  still
rely  on  this  service  to  receive  in  the  afternoon,  standard
letters  posted  in  the  morning.  Since  then,  a  continuous
decline  in  the  quality  of  the  service  has  been  observed,  and
in  particular  of  the  number  of  daily  rounds  of  the  postmen,
which  were  reduced  from  five  to  one  (or  two  in  some  cities
of  the  European  Union).  The  exclusive  rights  of  the  postal
organisations  favoured  a  fall  in  quality,  since  they  prevented
other  companies  from  entering  the  market.  As  a  conse(cid:220)
quence  the  postal  organisations  failed  to  compensate  for
wage  increases  and  reduction  of  the  working  hours  by
introducing  modern  technology,  as  was  done  by  enterprises
in  industries  open  to  competition.

measurements  only  concerne  first  class  mail,  and  the
most  recent  measurements  show  that  the  quality  has
gone  down  slightly  again.

The  majority  of  Community  public  postal  operators
have  notified  an  agreement  on  terminal  dues  to  the
Commission  for  assessment  under  the  competition
rules  of  the  Treaty.  The  parties  to  the  agreement
have  explained  that  their  aim  is  to  establish  fair
compensation  for  the  delivery  of  cross(cid:220)border  mail
reflecting  more  closely  the  real  costs  incurred  and  to
improve  the  quality  of  cross(cid:220)border  mail  services.

2.8. Unjustified  refusal 

contrary 

to  Article  86, 

is  also  an  abuse
to  supply 
prohibited  by  Article  86  of 
the  Treaty.  Such
behaviour  would  lead  to  a  limitation  of  services
within  the  meaning  of  Article  86,  second  paragraph,
(b)  and,  if  applied  only  to  some  users,  result  in
discrimination 
second
paragraph,  (c),  which  requires  that  no  dissimilar
conditions  be  applied  to  equivalent  transactions.  In
most  of  the  Member  States,  the  operators  referred  to
in  point  4.2  provide  access  at  various  access  points  of
their  postal  networks  to  intermediaries.  Conditions
of  access,  and  in  particular  the  tariffs  applied,  are
however,  often  confidential  and  may  facilitate  the
application  of  discriminatory  conditions,  Member
States  should  ensure  that  their  postal  legislation  does
not  encourage  postal  operators  to  differentiate  injus(cid:220)
tifiably  as  regards  the  conditions  applied  or  to
exclude  certain  companies.

be 

against 

directed 

2.9. While  a  dominant  firm  is  entitled  to  defend  its
position  by  competing  with  rivals,  it  has  a  special
responsibility  not  to  further  diminish  the  degree  of
competition  remaining  on  the  market.  Exclusionary
practices  may 
existing
competitors  on  the  market  or  intended  to  impede
market  access  by  new  entrants.  Examples  of  such
illegal  behaviour  include:  refusal  to  deal  as  a  means
of  eliminating  a  competitor  by  a  firm  which  is  the
sole  or  dominant  source  of  supply  of  a  product  or
controls  access  to  an  essential  technology  or  infra(cid:220)
structure;  predatory  pricing  and 
selective  price
exclusionary  dealing
cutting 
agreements;  discrimination  as  part  of  a  wider  pattern
of  monopolizing  conduct  designed 
to  exclude
competitors;  and  exclusionary  rebate  schemes.

section  3); 

(see 

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3. CROSS(cid:220)SUBSIDISATION

(b)(cid:217)Consequences

(a)(cid:217)Basic  principles

3.1. Cross(cid:220)subsidisation  means  that  an  undertaking  bears
or  allocates  all  or  part  of  the  costs  of  its  activity  in
one  geographical  or  product  market  to  its  activity  in
another  geographical  or  product  market.  Under
certain  circumstances,  cross(cid:220)subsidisation 
the
postal  sector,  where  nearly  all  operators  provide
reserved  and  non(cid:220)reserved 
services,  can  distort
competition  and  lead  to  competitors  being  beaten  by
offers  which  are  made  possible  not  by  efficiency
(including  economies  of  scope)  and  performance  but
cross(cid:220)subsidisation
by 
leading  to  unfair  competition  is  crucial  for  the  devel(cid:220)
opment  of  the  postal  sector.

cross(cid:220)subsidies.  Avoiding 

in 

3.2. Cross(cid:220)subsidisation  does  not  distort  competition
when  the  costs  of  reserved  activities  are  subsidised
by  the  revenue  generated  by  other  reserved  services
since  there  is  no  competition  possible  as  to  these
services.  This  form  of  subsidisation  may  sometimes
be  necessary,  to  enable  the  operators  referred  to  in
point  4.2  to  perform  their  obligation  to  provide  a
service  universally,  and  on  the  same  conditions  to
everybody(cid:216)(˛(cid:213)).  For 
instance,  unprofitable  mail
delivery  in  rural  areas  is  subsidised  through  revenues
from  profitable  mail  delivery  in  urban  areas.  The
same  could  be  said  of  subsidising  the  provision  of
reserved  services  through  revenues  generated  by
activities  open 
to  competition.  Moreover,  cross(cid:220)
subsidisation  between  non(cid:220)reserved  activities  is  not
in  itself  abusive.

3.3. By 

open 

activities 

contrast, 

subsidising 

to
competition  by  allocating  their  costs  to  reserved
services  is  likely  to  distort  competition  in  breach  of
Article  86.  It  could  amount  to  an  abuse  by  an  under(cid:220)
taking  holding  a  dominant  position  within 
the
Community.  Moreover,  users  of  activities  covered  by
a  monopoly  would  have  to  bear  costs  which  are
those  activities.
the  provision  of 
to 
unrelated 
Nonetheless, 
too  many
dominant 
compete  on  price,  or  improve  their  cash  flow  and
obtain  only  partial  contribution 
fixed
(overhead)  costs,  unless  the  prices  are  predatory  or
go  against  relevant  national  or  Community  regu(cid:220)
lations.

companies 

their 

to 

3.4. A  reference  to  cross(cid:220)subsidisation  was  made  in  point
2.7;  duties  of  dominant  postal  operators.  The
operators  referred  to  in  point  4.2  should  not  use  the
income  from  the  reserved  area  to  cross(cid:220)subsidise
activities 
in  areas  open  to  competition.  Such  a
practice  could  prevent,  restrict  or  distort  competition
in  the  non(cid:220)reserved  area.  However,  in  some  justified
cases,  subject  to  the  provisions  of  Article  90(2),
cross(cid:220)subsidisation  can  be  regarded  as  lawful,  for
example  for  cultural  mail(cid:216)(˛(cid:214)),  as  long  as  it  is  applied
in  a  non  discriminatory  manner,  or  for  particular
services  to  the  socially,  medically  and  economically
disadvantaged.  When  necessary, 
the  Commission
indicate  what  other  exemptions  the  Treaty
will 
would  allow  to  be  made.  In  all  other  cases,  taking
into  account  the  indications  given  in  point  3.3,  the
price  of  competitive  services  offered  by  the  operator
in  point  4.2  should,  because  of  the
referred  to 
difficulty  of  allocating  common  costs,  in  principle  be
at  least  equal  to  the  average  total  costs  of  provision.
This  means  covering  the  direct  costs  plus  an  appro(cid:220)
priate  proportion  of  the  common  and  overhead  costs
of  the  operator.  Objective  criteria,  such  as  volumes,
time  (labour)  usage,  or  intensity  of  usage,  should  be
used  to  determine  the  appropriate  proportion.  When
using  the  turnover  generated  by  the  services  involved
as  a  criterion 
in  a  case  of  cross(cid:220)subsidisation,
allowance  should  be  made  for  the  fact  that  in  such  a
scenario  the  turnover  of  the  relevant  activity  is  being
factors,
kept  artificially 
such  as 
themselves
revenues  or  profits,  are 
influenced  by  predation.  If  services  were  offered
selectively  at  a  price  below
systematically  and 
average  total  cost,  the  Commission  would,  on  a
case(cid:220)by(cid:220)case  basis, 
the  matter  under
investigate 
Article  86,  or  under  Article  86  and  Article  90(1)  or
under  Article  92.

low.  Demand(cid:220)influenced 

4. PUBLIC  UNDERTAKINGS  AND 

SPECIAL  OR

EXCLUSIVE  RIGHTS

4.1. The  treaty  obliges  the  Member  States,  in  respect  of
public  undertakings  and  undertakings  to  which  they
grant  special  or  exclusive  rights,  neither  to  enact  nor
in  force  any  measures  contrary  to  the
maintain 

(˛(cid:213))(cid:217)See 

these  Postal  Directive,  recitals  16  and  28,  and

(˛(cid:214))(cid:217)Referred  to  by  UPU  as  "work  of  the  mind’,  comprising

Chapter  5.

books,  newspapers,  periodicals  and  journals.

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Treaty  rules  (Article  90(1)).  The  expression  "under(cid:220)
taking’  includes  every  person  or  legal  entity  exer(cid:220)
cising  an  economic  activity,  irrespective  of  the  legal
status  of  the  entity  and  the  way  in  which  it  is
financed.  The  clearance,  sorting,  transportation  and
distribution  of  postal 
items  constitute  economic
activities,  and  these  services  are  normally  supplied
for  reward.

the  rules  which  govern 

The  term  "public  undertaking’  includes  every  under(cid:220)
taking  over  which  the  public  authorities  may  exercise
directly  or  indirectly  a  dominant  influence  by  virtue
of  ownership  of  it,  their  financial  participation  in  it
or 
it(cid:216)(ˇ˝).  A  dominant
influence  on  the  part  of  the  public  authorities  may  in
particular  be  presumed  when  the  public  authorities
indirectly,  the  majority  of  the
hold,  directly  or 
subscribed  capital  of  the  undertaking,  control  the
majority  of  the  voting  rights  attached  to  shares
issued  by  the  undertaking  or  can  appoint  more  than
half  of  the  members  of  the  administrative,  mana(cid:220)
gerial  or  supervisory  body.  Bodies  which  are  part  of
the  Member  State’s  administration  and  which
provide  in  an  organised  manner  postal  services  for
third  parties  against  remuneration  are  to  be  regarded
as  such  undertakings.  Undertakings  to  which  special
or  exclusive  rights  are  granted  can,  according  to
Article  90(1),  be  public  as  well  as  private.

4.2. National  regulations  concerning  postal  operators  to
which  the  Member  States  have  granted  special  or
exclusive  rights  to  provide  certain  postal  services  are
"measures’  within  the  meaning  of  Article  90(1)  of  the
Treaty  and  must  be  assessed  under  the  Treaty
provisions  to  which  that  Article  refers.

In  addition  to  Member  States’  obligations  under
Article  90(1),  public  undertakings  and  undertakings
that  have  been  granted  special  or  exclusive  rights  are
subject  to  Articles  85  and  86.

5.

FREEDOM  TO  PROVIDE  SERVICES

(a)(cid:217)Basic  principles

5.1. The  granting  of  special  or  exclusive  rights  to  one  or
more  operators  referred  to  in  point  4.2  to  carry  out
the  clearance,  including  public  collection,  transport
and  distribution  of  certain  categories  of  postal  items
inevitably  restricts  the  provision  of  such  services,
in  other  Member
both  by  companies  established 
the
States  and  by  undertakings  established 
Member  State  concerned.  This  restriction  has  a
transborder  character  when  the  addresses  or  the
senders  of  the  postal  items  handled  by  those  under(cid:220)
takings  are  established  in  other  Member  States.  In
the  provision  of  postal
practice,  restrictions  on 
services,  within  the  meaning  of  Article  59  of  the
Treaty(cid:216)(ˇ˛),  comprise  prohibiting  the  conveyance  of
certain  categories  of  postal  items  to  other  Member
States  including  by  intermediaries,  as  well  as  the
prohibition  on  distributing  gross(cid:220)border  mail.  The
Postal  Directive  lays  down  the  justified  restrictions
on  the  provision  of  postal  services.

in 

5.2. Article  66,  read  in  conjunction  with  Artuicle  55  and
56  of  the  Treaty,  sets  out  exceptions  from  Article  59.
Since  they  are  exceptions  to  a  fundamental  principle,
they  must  be  interpreted  restrictively.  As  regards
postal  services,  the  exception  under  Article  55  only
applies  to  the  conveyance  and  distribution  of  a
special  kind  of  mail,  that  is  mail  generated  in  the
curse  of 
judicial  or  administrative  procedures,
connected,  even  occasionally,  with  the  exercise  of
official  authority, 
in
pursuance  of 
administrative
procedures.  The  conveyance  and  distribution  of  such
items  on  a  Member  State’s  territory  may  therefore
be  subjected  ot  a  licensing  requirement  (see  point
5.5)  in  order  to  protect  the  public  interest.  The
conditions  of  the  other  derogations  from  the  Treaty
listed 
those  provisions  will  not  normally  be
fulfilled  in  relation  to  postal  services.  Such  services
cannot,  in  themselves,  threaten  public  policy  and
cannot  affect  public  health.

in  particular  notifications 

judicial  or 

any 

in 

4.3. In  most  Member  States,  special  and  exclusive  rights
apply  to  services  such  as  the  clearance,  transpor(cid:220)
tation  and  distribution  of  certain  postal  items,  as
well  as  the  way  in  which  those  services  are  provided,
such  as  the  exclusive  right  to  place  letter  boxes  along
the  public  highway  or  to  issue  stamps  bearing  the
name  of  the  country  in  question.

5.3. The  case(cid:220)law  of  the  Court  of  Justice  allows,  in
principle, 
the  basis  of
further  derogations  on 
mandatory  requirements,  provided  that  they  fulfil
non(cid:220)economic  essential  requirements  in  the  general
interest,  are  applied  without  discrimination,  and  are
appropriate  and  proportionate  to  the  objective  to

(ˇ˝)(cid:217)Commission  Directive  80/723/EEC  on  the  transparency  of
financial  relations  between  Member  States  and  public
undertakings,  OJ  L  195,  29.7.1980,  p.  35.

(ˇ˛)(cid:217)For  a  general  explanation  of  the  principles  deriving  from
Article  59,  see  Commission  interpretative  communication
concerning  the  free  movement  of  services  across  frontiers
(OJ  C  334,  9.12.1993,  p.  3).

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the 

subject 

services  are  data  protection 

be  achieved.  As  regards  postal  services,  the  essential
requirements  which  the  Commission  would  consider
as  justifying  restrictions  on  the  freedom  to  provide
postal 
to
in  this  field,  the
approximation  measures  taken 
confidentiality  of  correspondence,  security  of  the
transport  of  dangerous
network  as  regards 
goods,  as  well  as,  where 
the
justified  under 
provisions  of  the  Treaty,  environmental  protection
and  regional  planning.  Conversely,  the  Commission
would  not  consider  it  justified  to  impose  restrictions
on  the  freedom  to  provide  postal  services  for  reasons
of  consumer  protection  since  this  general  interest
requirement  can  be  met  by  the  general  legislation  on
fair 
trade  practices  and  consumer  protection.
Benefits  to  consumers  are  enhanced  by  the  freedom
to  provide  postal  services,  provided  that  universal
service  obligations  are  well  defined  on  the  basis  of
the  Postal  Directive  and  can  be  fulfilled.

5.4. The  Commission  therefore  considers  that  the  main(cid:220)
tenance  of  any  special  or  exclusive  right  which  limits
cross(cid:220)border  provision  of  postal  services  needs  to  be
justified  in  the  light  of  Articles  90  and  59  of  the
Treaty.  At  present,  the  special  or  exclusive  rights
whose  scope  does  not  go  beyond  the  reserved
services  as  defined  in  the  Postal  Directive  are  prima
facie  justified  under  Article  90(2).  Outward  cross(cid:220)
border  mail  is  de  jure  or  de  facto  liberalised  in  some
Member  States,  such  as  Denmark,  the  Netherlands,
Finland,  Sweden,  and  the  United  Kingdom.

(b)(cid:217)Consequences

5.5. The  adoption  of  the  measures  contained 

to  ensure 

in  the
Postal  Directive  requires  Member  States  to  regulate
postal  services.  Where  Member  States  restrict  postal
the  achievement  of  universal
services 
service  and  essential  requirements,  the  content  of
such  regulation  must  correspond  to  the  objective
pursued.  Obligations  should,  as  a  general  rule,  be
enforced  within  the  framework  of  class  licences  and
declaration  procedures  by  which  operators  of  postal
services  supply  their  name, 
legal  form,  title  and
address  as  well  as  a  short  description  of  the  services
they  offer  to  the  public.  Individual  licensing  should
only  be  applied  for  specific  postal  services,  where  it
is  demonstrated 
less  restrictive  procedures
cannot  ensure  those  objectives.  Member  States  may
be  invited,  on  a  case(cid:220)by(cid:220)case  basis,  to  notify  the

that 

measures  they  adopt  to  the  Commission  to  enable  it
to  assess  their  proportionality.

6. MEASURES  ADOPTED  BY  MEMBER  STATES

(a)(cid:217)Basic  principles

6.1. Member  States  have  the  freedom  to  define  what  are
general 
interest  services,  to  grant  the  special  or
exclusive  rights  that  are  necessary  for  providing
them,  to  regulate  their  management  and,  where
appropriate,  to  fund  them.  However,  under  Article
90(1)  of  the  Treaty,  Member  States  must,  in  the  case
of  public  undertakings  and  undertakings  to  which
they  have  granted  special  or  exclusive  rights,  neither
enact  nor  maintain  in  force  any  measure  contrary  to
the  Treaty  rules,  and  in  particular  its  competition
rules.

(b)(cid:217)Consequences

6.2. The  operation  of  a  universal 

clearance  and
distribution  network  confers  significant  advantages
on  the  operator  referred  to  in  point  4.2  in  offering
not  only  reserved  or  liberalised  services  falling  within
the  definition  of  universal  service,  but  also  other
services.  The  prohibition
(non(cid:220)universal  postal) 
under  Articles  90(1),  read 
in  conjunction  with
Article  86(b),  applies  to  the  use,  without  objective
justification,  of  a  dominant  position  on  one  market
to  obtain  market  power  on  related  or  neighbouring
markets  which  are  distinct  from  the  former,  at  the
risk  of  eliminating  competition  on  those  markets.  In
countries  where  local  delivery  of  items  of  corre(cid:220)
liberalised,  such  as  Spain,  and  the
spondence 
transport  and
limited 
monopoly 
delivery,  the  use  of  a  dominant  position  to  extend
the  monopoly  from  the  latter  market  to  the  former
would  therefore  be  incompatible  with  the  Treaty
provisions,  in  the  absence  of  specific  justification,  if
the  functioning  of  services  in  the  general  economic
interest  was  not  previously 
endangered.  The
Commission  considers  that  it  would  be  appropriate
for  Member  States  to  inform  the  Commission  of  any
extension  of  special  or  exclusive  rights  and  of  the
justification  therefor.

inter(cid:220)city 

is 
is 

to 

6.3. There  is  a  potential  effect  on  the  trade  between
Member  States  from  restrictions  on  the  provision  of
postal  services,  since  the  postal  services  offered  by
operators  other  than  the  operators  referred  to  in

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point  4.2  can  cover  mailings  to  or  from  other
Member  States,  and  restrictions  may  impede  cross(cid:220)
border  ativities  of  operators  in  other  Member  States.

exemption  is,  or  may  be,  granted.  Without  prejudice
to  Article  90(2),  Articles  92  and  93  are  applicable  to
postal  services(cid:216)(ˇ—).

its  competitors.  The 

6.4. As  explained  in  point  8(b)(vii),  Member  States  must
monitor  access  conditions  and  the  exercise  of  special
and  exclusive  rights.  They  need  not  necessarily  set
up  new  bodies  to  do  this  but  they  should  not  give  to
their  operator(cid:216)(ˇˇ)  as  referred  to  in  point  4.2,  or  to  a
body  which  is  related  (legally,  administratively  and
structurally)  to  that  operator,  the  power  of  super(cid:220)
vision  of  the  exclusive  rights  granted  and  of  the
activities  of  postal  operators  generally.  An  enterprise
in  a  dominant  position  must  not  be  allowed  to  have
such  a  power  over 
inde(cid:220)
pendence,  both  in  theory  and  in  practice,  of  the
supervisory 
enterprise
supervised  is  essential.  The  system  of  undistorted
competition  required  by  the  Treaty  can  only  be
ensured 
the  different
economic  operators, 
including  confidentiality  of
sensitive  business  information,  are  guaranteed.  To
allow  an  operator  to  check  the  declarations  of  its
competitors  or  to  assign  to  an  undertaking  the
power  to  supervise  the  activities  of  its  competitors  or
to  be  associated  in  the  granting  of  licences  means
commercial
that 
information  about  its  competitors  and  thus  has  the
opportunity 
those
competitors.

if  equal  opportunities  for 

the  activity  of 

undertaking 

authority 

influence 

given 

from 

such 

the 

all 

to 

is 

7. POSTAL  OPERATORS  AND  STATE  AID

(a)(cid:217)Principles

in 

postal 

operations, 

the  majority  appear 

While  a  few  operators  referred  to  in  point  4.2  are
to  be
highly  profitable, 
operating  either  in  financial  deficit  or  at  close  to
break(cid:220)even 
although
information  on  underlying  financial  performance  is
limited,  as  relatively  few  operators  publish  relevant
information  of  an  auditable  standard  on  a  regular
basis.  However,  direct  financial  support  in  the  form
of 
tax
support 
exemptions 
is  being  given  to  fund  some  postal
services,  even  if  the  actual  amounts  are  often  not
transparent.

subsidies  or 

such  as 

indirect 

The  Treaty  makes  the  Commission  responsible  for
enforcing  Article  92,  which  declares  State  aid  that
affects 
the
Community  to  be  incompatible  with  the  common
market  except  in  certain  circumstances  where  an

trade  between  Member  States  of 

Pursuant 
to  Article  93(3),  Member  States  are
required  to  notify  to  the  Commission  for  approval
all  plans  to  grant  aid  or  to  alter  existing  aid
arrangements.  Moreover, 
is
required  to  monitor  aid  which  it  has  previously  auth(cid:220)
orised  or  which  dates  from  before  the  entry  into
force  of  the  Treaty  or  before  the  accession  of  the
Member  State  concerned.

the  Commission 

as 

last 

All  universal  service  providers  currently  fall  within
the  scope  of  Commission  Directive  80/723/EEC  of
25  June  1980  on  the  transparency  of  financial
relations  between  Member  States  and  public  under(cid:220)
takings(cid:216)(ˇ(cid:209)), 
by  Directive
93/84/EEC(cid:216)(ˇ(cid:210)).  In  addition  to  the  general  trans(cid:220)
parency  requirement  for  the  accounts  of  operators
referred  to  in  point  4.2  as  discussed  in  point  8(b)(vi),
Member  States  must  therefore  ensure  that  financial
relations  between  them  and  those  operators  are
transparent  as  required  by  the  Directive,  so  that  the
following  are  clearly  shown:

amended 

(a)(cid:217)public  funds  made  available  directly,  including

tax  exemptions  or  reductions;

(b) public  funds  made  available  through  other  public

undertakings  or  financial  institutions;

(c) the  use  to  which  those  public  funds  are  actually

put.

The  Commission 
following  as  making  available  public  funds:

regards, 

in 

particular, 

the

(a)(cid:217)the  setting(cid:220)off  of  operating  losses;

(b) the  provision  of  capital;

(ˇˇ)(cid:217)See  in  particular,  Case  C(cid:220)18/88  RTT  v (cid:216)GB(cid:220)Inno(cid:220)BM  [1991(cid:129)

ECR  I(cid:220)5981,  paragraphs  25  to  28.

(ˇ—)(cid:217)Case  C(cid:220)387/92  Banco  de  Credito  Industrial  v.  Ayuntamiento

Valencia  [1994(cid:129)  ECR  I(cid:220)877.
(ˇ(cid:209))(cid:217)OJ  L  195,  29.7.1980,  p.  35.
(ˇ(cid:210))(cid:217)OJ  L  254,  12.10.1993,  p.  16.

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(c) non(cid:220)refundable  grants  or 

loans  on  privileged

terms;

which  benefit 
the
prohibition  set  out  in  Article  92(1)  on  the  basis  of
Article  90(2)(cid:216)(ˇ(cid:212)).

exemption 

from  an 

from 

(d) the  granting  of  financial  advantages  by  forgoing

profits  or  the  recovery  of  sums  due;

8.

SERVICE  OF  GENERAL  ECONOMIC  INTEREST

(e) the  forgoing  of  a  normal  return  on  public  funds

used;

(a) Basic  principles

(f) compensation  for  financial  burdens  imposed  by

the  public  authorities.

(b) Application  of  Articles  90  and  92

that  privileged 

to  check  whether 

The  Commission  has  been  called  upon  to  examine  a
number  of  tax  advantages  granted  to  a  postal
operator  on  the  basis  of  Article  92  in  connection
with  Article  90  of  the  Treaty.  The  Commission
sought 
tax
treatment  could  be  used  to  cross(cid:220)subsidize  that
operator’s  operations  in  sectors  open  to  competition.
At  that  time,  the  postal  operator  did  not  have  an
analytical  cost(cid:220)accounting  system  serving  to  enable
the  Commission  to  distinguish  between  the  reserved
activities  and  the  competitive  ones.  Accordingly,  the
Commission,  on  the  basis  of  the  findings  of  studies
carried  out  in  that  area,  assessed  the  additional  costs
due  to  universal(cid:220)service  obligations  borne  by  that
postal  operator  and  compared  those  costs  with  the
tax  advantages.  The  Commission  concluded  that  the
therefore
costs  exceeded 
decided  that  the  tax  system  under  examination  could
not  lead  to  cross(cid:220)subsidization  of  that  operator’s
operations  in  the  competitive  areas(cid:216)(ˇ(cid:211)).

those  advantages  and 

in 

its  decision 

is  worth  noting 

It 
the
that 
Commission  invited  the  Member  State  concerned  to
make  sure  that  the  postal  operator  adopted  an
analytical  cost(cid:220)accounting  system  and  requested  an
annual  report  which  would  allow  the  monitoring  of
compliance  with  Community  law.

the  Treaty  rules  where 

8.1. Article  90(2)  of  the  Treaty  allows  an  exception  from
the  application  of 
the
application  of  those  rules  obstructs,  in  law  or  in  fact,
the  performance  of  the  particular  task  assigned  to
the  operators  referred  to 
in  point  4.2  for  the
provision  of  a  service  of  general  economic  interest.
Without  prejudice  to  the  rights  of  the  Member
States  to  define  particular  requirements  of  services  of
general  interest,  that  task  consists  primarily  in  the
provision  and  the  maintenance  of  a  universal  public
postal  service,  guaranteeing  at  affordable,  cost(cid:220)
effective  and  transparent  tariffs  nationwide  access  to
the  public  postal  network  within  a  reasonable
distance  and  during  adequate  opening  hours,
from
including 
accessible 
points
throughout  the  territory  and  the  timely  delivery  of
such 
indicated,  as  well  as
associated  services  entrusted  by  measures  of  a  regu(cid:220)
latory  nature 
for  universal
delivery  at  a  specified  quality.  The  universal  service
is  to  evolve  in  response  to  the  social,  economical  and
technical  environment  and  to  the  demands  of  users.

the  clearance  of  postal 
boxes 
postal 

items  to  the  address 

those  operators 

collection 

items 

or 

to 

The  general  interest  involved  requires  the  availability
in  the  Community  of  a  genuinely  integrated  public
postal  network,  allowing  efficient  circulation  of
information  and  thereby  fostering,  on  the  one  hand,
the  competitivenes  of  European  industry  and  the
development  of  trade  and  greater  cohesion  between
the  regions  and  Member  States,  and  on  the  other,
the 
improvement  of  social  contacts  between  the
citizens  of  the  Union.  The  definition  of  the  reserved
area  has  to  take  into  account  the  financial  resources
necessary  for  the  provision  of  the  service  of  general
economic  interest.

The  Court  of  First  Instance  ha  endorsed 
the
Commission’s  decision  and  has  stated  that  the  tax
advantages  to  that  postal  operator  are  State  aid

8.2. The  financial  resources  for  the  maintenance  and
improvement  of  that  public  network  still  derive
mainly  from  the  activities  referred  to  in  point  2.3.

(ˇ(cid:211))(cid:217)Case  NN(cid:216)135/92,  OJ  C  262,  7.10.1995,  p.  11.

(ˇ(cid:212))(cid:217)Case  T(cid:220)106/95  FFSA  v. Commission  [1997(cid:129)  ECR  II(cid:220)229.

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Currently,  and  in  the  absence  of  harmonisation  at
Community  level,  most  Member  States  have  fixed
the 
limits  of  the  monopoly  by  reference  to  the
weight  of  the  item.  Some  Member  States  apply  a
limit  whereas  one
combined  weight  and  price 
Member  State  applies  a  price  limit  only.  Information
collected  by 
the  revenues
the  Commission  on 
obtained  from  mail  flows 
in  the  Member  States
seems  to  indicate  that  the  maintencance  of  special  or
exclusive  rights  with  regard  to  this  market  could,  in
the  absence  of 
circumstances,  be
exceptional 
sufficient  to  guarantee  the  improvement  an  main(cid:220)
tenance  of  the  public  postal  network.

The  service  for  which  Member  States  can  reserve
exclusive  or  special  rights,  to  the  extent  necessary  to
ensure  the  maintenance  of  the  universal  service,  is
harmonised  in  the  Postal  Directive.  To  the  extent  to
which  Member  States  grant  special  or  exclusive
rights  for  this  service,  the  service  is  to  be  considered
a  separate  product(cid:220)market  in  the  assessment  of  indi(cid:220)
vidual  cases  in  particular  with  regard  to  direct  mail,
the  distribution  of 
cross(cid:220)border  mail,
inward 
outward  cross(cid:220)border  mail,  as  well  as  with  regard  to
the  collection,  sorting  and  transport  of  mail.  The
Commission  will  take  account  of  the  fact  that  those
markets  are  wholly  or  partly  liberalised  in  a  number
of  Member  States.

the  postal  sector, 

8.3. When  applying  the  competition  rules  and  other
relevant  Treaty  rules 
the
to 
Commission,  acting  upon  a  complaint  or  upon  its
own  initiative,  will  take  account  of  the  harmonized
definition  set  out  in  the  Postal  Directive  in  assessing
whether  the  scope  of  the  reserved  area  can  be
justified  under  Article  90(2).  The  point  of  departure
will  be  a  presumption  that,  to  the  extent  that  they
fall  within  the  limits  of  the  reserved  area  as  defined
in  the  Postal  Directive,  the  special  or  exclusive  rithts
will  be  prima  facie  justified  under  Article  90(2).  That
presumption  can,  however,  be  rebutted  if  the  facts  in
a  case  show  that  a  restriction  does  not  fulfil  the
conditions  of  Article  90(2)(cid:216)(ˇ(cid:213)).

issues 

in  relation 

which  makes  it  difficult  for  the  Commission,  at  this
stage,  to  specify  in  a  general  way  the  obligations  of
the  Member  States  regarding  that  service.  The  two
principal 
to  direct  mail  are
potential  abuse  by  customers  of  its  tariffication  and
of  its  liberalisation  (reserved  items  being  delivered  by
an  alternative  operators  as  if  they  were  non(cid:220)reserved
direct  mail  items)  so  as  to  circumvent  the  reserved
services  referred  to  in  point  8.2.  Evidence  from  the
Member  States  which  do  not  restrict  direct  mail
services,  such  as  Spain,  Italy, 
the  Netherlands,
Austria,  Sweden  and  Finland,  is  still  inconclusive  and
does  not  yet  allow  a  definitive  general  assessment.  In
view  of  that  uncertainty,  it  is  considered  appropriate
to  proceed  temporarily  on  a  case(cid:220)by(cid:220)case  basis.  If
particular  circumstances  make 
it  necessary,  and
without  prejudice  to  point  8.3,  Member  States  may
maintain  certain  existing  restrictions  on  direct  mail
services  or  introduce  licensing  in  order  to  avoid
artificial  traffic  distortions  and  substantial  destabil(cid:220)
ization  of  revenues.

8.5. As  regards  the  distribution  of  inward  corss(cid:220)border
mail,  the  system  of  terminal  dues  received  by  the
postal  operator  of  the  Member  State  of  delivery  of
cross(cid:220)border  mail  from  the  operator  of  the  Member
State  of  origin  is  currently  under  revision  to  adapt
terminal  dues,  which  are  in  many  cases  too  low,  to
actual  costs  of  delivery.

certain 

existing 

restrictions  on 

Without  prejudice  to  point  8.3,  Member  States  may
maintain 
the
distribution  of  inward  cross(cid:220)border  mail(cid:216)(ˇ(cid:214)),  so  as  to
avoid  artificial  diversion  of  traffic,  which  would
inflate  the  share  of  cross(cid:220)border  mail  in  Community
traffic.  Such  restrictions  may  only  concern 
items
falling  under  the  reservable  area  of  services.  In
assessing  the  situation  in  the  framework  of  indi(cid:220)
vidual  cases,  the  Commission  will  take  into  account
the  relevant,  specific  circumstances  in  the  Member
States.

8.4. The  direct  mail  market 

is  still  developing  at  a
different  pace  from  one  Member  State  to  the  other,

(ˇ(cid:213))(cid:217)In  relation  to  the  limits  on  the  application  of  the  exception
set  out  in  Article  90(2),  see  the  position  taken  by  the  Court
of  Justice  in  the  following  cases:  Case  C(cid:220)179/90  Merci
convenzionali  porto  di  Genova  v.  Siderurgica  Gabrielli
[1991(cid:129)  ECR  I(cid:220)1979;  Case  C(cid:220)41/90  Klaus  H‰fner  and  Fritz
Elser  v. Macroton  [1991(cid:129)  ECR  I(cid:220)5889.

8.6. The  clearance,  sorting  and  transport  of  postal  items
has  been  or  is  currently  increasingly  being  opened  up
to  third  parties  by  postal  operators  in  a  number

(ˇ(cid:214))(cid:217)This  may  in  particular  concern  mail  from  one  State  which
has  been  conveyed  by  commercial  companies  to  another
State  to  be  introduced  in  the  public  postal  network  via  a
postal  operator  of  that  other  State.

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certain 

existing 

restrictions  on 

if  particular  circumstances  make 

of  Member  States.  Given  that  the  revenue  effects  of
such  opening  up  may  vary  according  to  the  situation
in  the  different  Member  States,  certain  Member
States  may, 
it
to  point  8.3,
necessary,  and  without  prejudice 
maintain 
the
clearance,  sorting  and  transport  of  postal  items  by
intermediaries(cid:216)(—˝),  so  as  to  allow  for  the  necessary
restructuring  of  the  operator  referred  to  in  point  4.2
However,  such  restrictions  should  in  principle  be
applied  only  to  postal  items  covered  by  the  existing
should  not 
monopolies, 
is  already
limit  what 
the  Member  State  concerned,  and
accepted 
in 
the  principle  of
compatible  with 
should  be 
non(cid:220)discriminatory  access  to  the  postal  network  as
set  out  in  point  8(b)(vii).

(b) Conditions  for  the  application  of  Article  90(2)  to

the  postal  sector

The  following  conditions  should  apply  with  regard
to  the  exception  under  Article  90(2):

(i) Liberalisation  of  other  postal  services

Except  for  those  services  for  which  reservation  is
necessary,  and  which  the  Postal  Directive  allows  to
be  reserved,  Member  States  should  withdraw  all
special  or  exclusive  rights  for  the  supply  of  postal
services  to  the  extent  that  the  performance  of  the
particular  task  assigned  to  the  operators  referred  to
in  point  4.2  for  the  provision  of  a  service  of  a
general  economic  interest  is  not  obstructed  in  law  or
in  fact,  with  the  exception  of  mail  connected  to  the
exercise  of  official  authority,  and  they  should  take
all  necessary  measures  to  guarantee  the  right  of  all
economic  operators  to  supply  postal  services.

This  does  not  prevent  Member  States  from  making,
where  necessary,  the  supply  of  such  services  subject
to  declaration  procedures  or  class  licences  and,  when
necessary,  to  individual  licensing  procedures  aimed
at  the  enforcement  of  essential  requirements  and  at
safeguarding  the  universal  service.  Member  States

should,  in  that  event,  ensure  that  the  conditions  set
out  in  those  procedures  are  transparent,  objective,
and  without  discriminatory  effect,  and  that  there  is
an  efficient  procedure  of  appealing  to  the  courts
against  any  refusal.

(ii) Absence  of  less  restrictive  means  to  ensure  the

services  in  the  general  economic  interest

Exclusive  rights  may  be  granted  or  maintained  only
where  they  are  indispensable  for  ensuring  the  func(cid:220)
tioning  of  the  tasks  of  general  economic  interest.  In
many  areas  the  entry  of  new  companies  into  the
market  could,  on  the  basis  of  their  specific  skills  and
expertise,  contribute  to  the  realisation  of  the  services
of  general  economic  interest.

If  the  operator  referred  to  in  point  4.2  fails  to
provide  satisfactorily  all  of  the  elements  of  the
universal  service  required  by  the  Postal  Directive
(such  as  the  possibility  of  every  citizen 
in  the
Member  State  concerned,  and  in  particular  those
living  in  remote  areas,  to  have  access  to  newspapers,
magazines  and  books),  even  with  the  benefit  of  a
universal  postal  network  and  of  special  or  exclusive
rights, 
take
action(cid:216)(—˛).  Instead  of  extending  the  rights  already
granted,  Member  States  should  create  the  possibility
that  services  are  provided  by  competitors  and  for  this
purpose  may 
those
competitors  in  addition  to  essential  requirements.  All
of 
objective,
should 
non(cid:220)discriminatory  and  transparent.

the  Member  State  concerned  must 

obligations 

obligations 

impose 

those 

on 

be 

(iii) Proportionality

Member  States  should  moreover  ensure  that  the
scope  of  any  special  and  exclusive  rights  granted  is
in  proportion  to  the  general  economic  interest  which
is  pursued  through  those  rights.  Prohibiting  self(cid:220)
delivery,  that  is  the  provision  of  postal  services  by
the  natural  or  legal  person  (including  a  sister  or
subsidiary  organisation)  who  is  the  originator  of  the
mail,  or  collection  and  transport  of  such  items  by  a
third  party  acting  solely  on  its  behalf,  would  for

(—˝)(cid:217)Even 

the
in  a  monopoly  situation,  senders  will  have 
freedom  to  make  use  of  particular  services  provided  by  an
intermediary,  such  as  (pre(cid:220))sorting  before  deposit  with  the
postal  operator.

(—˛)(cid:217)According  to  Article  3  of  the  Postal  Directive,  Member
States  are  to  ensure  that  users  enjoy  the  right  to  a  universal
service.

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for 

example  not  be  proportionate  to  the  objective  of
guaranteeing  adequate  resources 
the  public
postal  network.  Member  States  must  also  adjust  the
scope  of  those  special  or  exclusive  rights,  according
to  changes  in  the  needs  and  the  conditions  under
which  postal  services  are  provided  and 
taking
account  of  any  State  aid  granted  to  the  operator
referred  to  in  point  4.2.

(iv) Monitoring  by  an  independent  regulatory  body

The  monitoring  of  the  performance  of  the  public(cid:220)
service  tasks  of  the  operators  referred  to  in  point  4.2
and  of  open  access  to  the  public  postal  network  and,
where  applicable,  the  grant  of  licences  or  the  control
of  declarations  as  well  as 
the  observance  by
economic  operators  of  the  special  or  exclusive  rights
of  operators  referred  to 
in  point  4.2  should  be
ensured  by  a  body  or  bodies  independent  of  the
latter(cid:216)(—ˇ).

separately 

That  body  should  in  particular  ensure:  that  contracts
for  the  provision  of  reserved  services  are  made  fully
transparent,  are 
invoiced  and  distin(cid:220)
guished  from  non(cid:220)reserved  services,  such  as  printing,
labelling  and  enveloping;  that  terms  and  conditions
for  services  which  are  in  part  reserved  and  in  part
liberalised  are 
the  reserved
element  is  open  to  all  postal  users,  irrespective  of
is
whether  or  not 
purchased.

the  non(cid:220)reserved  component 

separate;  and 

that 

is 

law 

to  ensure 

Price  and  service  discrimination  between  or  within
classes  of  customers  can  easily  be  practised  by
operators  running  a  universal  postal  network,  given
the  significant  overheads  which  cannot  be  fully  and
precisely  assigned  to  any  one  service  in  particular.  It
is  therefore  extremely  difficult  to  determine  cross(cid:220)
subsidies  within  them,  both  between  the  different
stages  of  the  handling  of  postal  items  in  the  public
postal  network  and  between  the  reserved  services
and 
the  services  provided  under  conditions  of
competition.  Moreover,  a  number  of  operators  offer
preferential  tariffs  for  cultural  items  which  clearly  do
not  cover  the  average  total  costs.  Member  States  are
that
obliged  by  Article  5  and  90 
Community 
fully  complied  with.  The
Commission  considers  that  the  most  appropriate  way
of  fulfilling  that  obligation  would  be  for  Member
States  to  require  operators  referred  to  in  point  4.2  to
identifying  sepa(cid:220)
keep  separate  financial  records, 
rately,  inter  alia,  costs  and  revenues  associated  with
the  provision  of  the  services  supplied  under  their
exclusive 
under
competitive  conditions,  and  making  it  possible  to
assess  fully  the  conditions  applied  at  the  various
access  points  of  the  public  postal  network.  Services
made  up  of  elements  falling  within  the  reserved  and
competitive  services  should  also  distinguish  between
the  costs  of  each  element.  Internal  accounting
systems  should  operate  on  the  basis  of  consistently
applied  and  objectively 
justified  cost(cid:220)accounting
principles.  The  financial  accounts  should  be  drawn
up,  audited  by  an  independent  auditor,  which  may
be  appointed  by  the  National  Regulatory  Authority,
and  be  publsihed  in  accordance  with  the  relelvant
Community  and  national 
to
commercial  organisations.

legislation  applying 

provided 

rights 

those 

and 

(v) Effective  monitoring  of  reserved  services

(vii) Non(cid:220)discriminatory  access  to  the  postal  network

The  tasks  excluded  from  the  scope  of  competition
should  be  effectively  monitored  by  the  Member  State
according 
and
performance  levels  and  there  should  be  regular  and
public  reporting  on  their  fulfilment.

published 

targets 

service 

to 

Operators  should  provide  the  universal  postal  service
by  affording  non(cid:220)discriminatory  access  to  customers
or 
intermediaries  at  appropriate  public  points  of
access,  in  accordance  with  the  needs  of  those  users.
Access  conditions  including  contracts  (when  offered)
should  be  transparent,  published  in  an  appropriate
manner  and  offered  on  a  non(cid:220)discriminatory  basis.

(vi) Transparency  of  accounting

Each  operator  referred  to  in  point  4.2  uses  a  single
postal  network  to  compete  in  a  variety  of  markets.

(—ˇ)(cid:217)See  in  particular  Articles  9  and  22  of  the  Postal  Directive.

Preferential  tariffs  appear  to  be  offered  by  some
operators  to  particular  groups  of  customers  in  a
non(cid:220)transparent 
should
monitor  the  access  conditions  to  the  network  with  a
is  no  discrimination
view  to  ensuring  that  there 

fashion.  Member  States 

C  39/18

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6.2.98

either  in  the  conditions  of  use  or  in  the  charges
payable.  It  should  in  particular  be  ensured  that  inter(cid:220)
mediaries,  including  operators  from  other  Member
States,  can  choose  from  amongst  available  access
points  to  the  public  postal  network  and  obtain  access
within  a  reasonable  period  at  price  conditions  based
on  costs,  that  take  into  account  the  actual  services
required.

The  obligation  to  provide  non(cid:220)discriminatory  access
to  the  public  postal  network  does  not  mean  that
Member  States  ar  required  to  ensure  access  for  items
of  correspondence  from  its  territory,  which  were
conveyed  by  commercial  companies  to  another  State,
in  breach  of  a  postal  monopoly,  to  be  introduced  in
the  public  postal  network  via  a  postal  operator  of
that  other  State,  for  the  sole  purpose  of  taking
advantage  of  lower  postal  tariffs.  Other  economic
reasons,  such  as  production  costs  and  facilities,
added  values  or  the  level  of  service  offered  in  other
Member  States  are  not  regarded  as  improper.  Fraud
can  be  made  subject  to  penalties  by  the  independent
regulatory  body.

for  postal 

At  present  cross(cid:220)border  access  to  postal  networks  is
occasionally  rejected,  or  only  allowed  subject  to
items  whose  production
conditions, 
transmission
process 
before  those  postal  items  were  given  physical  form.
Those  cases  are  usually  called  non(cid:220)physical  remail.
In  the  present  circumstances  there  may  indeed  be  an
that
economic  problem  for 

includes  cross(cid:220)border  data 

the  postal  operator 

delivers  the  mail,  due  to  the  level  of  terminal  dues
applied  between  postal  operators.  The  operators  seek
to  resolve  this  problem  by  the  introduction  of  an
appropriate  terminal  dues  system.

to 

inform 

The  Commission  may  request  Member  States,  in
accordance  with  the  first  paragraph  of  Article  5  of
the  Treaty, 
the
conditions  of  access  applied  and  of  the  reasons  for
them.  The  Commission  is  not  to  disclose  information
acquired  as  a  result  of  such  requests  to  the  extent
that  it  is  covered  by  the  obligation  of  professional
secrecy.

the  Commission  of 

9. REVIEW

level 

is  adopted  at  Community 

to
This  notice 
facilitate  the  assessment  of  certain  behaviour  of
undertakings  and  certain  State  measures  relating  to
postal  services.  It  is  appropriate  that  after  a  certain
period  of  development,  possibly  by  the  year  2000,
the  Commission  should  carry  out  an  evaluation  of
the  postal  sector  with  regard  to  the  Treaty  rules,  to
establish  whether  modifications  of  the  views  set  out
in  this  notice  are  required  on  the  basis  of  social,
economic  or  technological  considerations  and  on  the
basis  of  experience  with  cases  in  the  postal  sector.  In
due  time  the  Commission  will  carry  out  a  global
evaluation  of  the  situation  in  the  postal  sector  in  the
light  of  the  aims  of  this  notice.