Common Position (EC) No 23/2002 of 6 December 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending Directive 97/67/EC with regard to the further opening to competition of Community postal services
Date: 2001-12-06
Institutions: Council of the European Union
Subjects: approximation of laws, free competition, liberalisation of the market, postal service, single market

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COMMON POSITION (EC) No 23/2002

adopted by the Council on 6 December 2001

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council of
. . . amending Directive 97/67/EC with regard to the further opening to competition of Community
postal services

(2002/C 110 E/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,

to competition,
market in postal services.

for the purposes of creating a single

Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2), 55 and 95
thereof,

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

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

Having regard to the opinion of
Regions (3),

the Committee of

the

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

Whereas:

(1) In its resolution of 7 February 1994 on the development
of Community postal services (5), the Council identified as
one of the main objectives of Community postal policy
the reconciliation of
the gradual,
controlled liberalisation of the postal market and that of
a durable guarantee of the provision of universal service.

the furtherance of

(2) Directive 97/67/EC of the European Parliament and of the
Council of 15 December 1997 on common rules for the
development of the internal market of Community postal
services and the improvement of quality of service (6)
established a regulatory framework for the postal sector
at Community level,
including measures to guarantee a
universal service and the setting of maximum limits for
the postal services which Member States may reserve to
their universal service provider(s) with a view to the main-
tenance of
the universal service, and a timetable for
decision-making on the further opening of the market

(1) OJ C 337 E, 28.11.2000, p. 220 and OJ C 180 E, 26.6.2001,

p. 291.

(2) OJ C 116, 20.4.2001, p. 99.
(3) OJ C 144, 16.5.2001, p. 20.
(4) Opinion of the European Parliament of 14 December 2000 (OJ C
232, 17.8.2001, p. 287), Council Common Position of 6 December
2001 and Decision of the European Parliament of . . .
(not yet
published in the Official Journal).

(3) Article 16 of the Treaty highlights the place occupied by
services of general economic interest in the shared values
of the Union as well as their role in promoting social and
territorial cohesion. It goes on to state that care should be
taken that such services operate on the basis of principles
and conditions which enable them to fulfil their missions.

(4) The European Parliament's resolutions of 14 January
1999 (7) and 18 February 2000 (8) on European postal
the social and economic importance
services highlight
of postal services and the need to maintain a high
quality of universal service.

(5) The measures in this area should be designed in such a
way that the social tasks of the Community pursuant to
Article 2 of
the Treaty, namely, a high level of
employment and of social protection, are also achieved
as objectives.

(6) The rural postal network,

inter alia,

in mountain and
island regions plays an essential role in integrating busi-
nesses into the national/global economy and in main-
taining cohesion in social and employment
terms in
rural mountain and island regions. Furthermore, rural
post offices in mountain and island regions can provide
an essential
infrastructure network affording universal
access to new telecommunications technologies.

(7) The European Council, meeting in Lisbon, on 23 and 24
March 2000, set out in its Presidency conclusions two
decisions applying to postal services, whereby action
was requested of the Commission, the Council and the
Member States
respective
powers. The requested actions are: firstly, to set out by
the end of 2000 a strategy for the removal of barriers to
postal services, and secondly, to speed up liberalisation in
areas such as postal services,
the stated aim being to
achieve a fully operational market in such services.

in accordance with their

(8) The Lisbon European Council also considered it essential
that, in the framework of the internal market and of a
knowledge-based economy, full account is taken of the
Treaty
general
economic interest and to the undertakings entrusted
with operating such services.

provisions

services

relating

to

of

(5) OJ C 48, 16.2.1994, p. 3.
(6) OJ L 15, 21.1.1998, p. 14.

(7) OJ C 104, 14.4.1999, p. 134.
(8) OJ C 339, 29.11.2000, p. 297.

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(9) The Commission has undertaken a thorough review of the
Community postal sector, including the commissioning of
studies on the economic, social and technological devel-
opments in the sector, and has consulted extensively with
interested parties.

(10) The Community postal sector requires a modern regu-
latory framework which aims in particular at enhancing
the internal market for postal services. Increased competi-
tiveness should enable the postal sector to be integrated
with alternative methods of communication and allow the
quality of the service provided to ever more demanding
users to be improved.

(11) The basic aim of safeguarding the durable provision of a
universal service matching the standard of quality defined
by the Member States in accordance with Article 3 of
Directive 97/67/EC on a consistent basis throughout the
Community can be secured if, in this area, the possibility
of reserving services is maintained and, at the same time,
conditions of high efficiency ensured by a sufficient
degree of freedom to provide services.

(12) The increase in demand within the postal sector as a
whole, predicted for the medium term, could help to
offset the loss of market share that the universal service
providers may incur as a result of further market-opening
and would thereby further safeguard the universal service.

important; of

in the postal sector,

(13) Amongst the factors which bring about change affecting
employment
technological devel-
opment and market pressure for efficiency gains are the
most
the remaining factors for change,
market-opening will play a less prominent part. Market-
opening will help to expand the overall size of the postal
markets, and any reductions in staff levels among the
universal service providers due to such measures (or
their anticipation) are likely to be offset by the resulting
growth in employment among private operators and new
market entrants.

(14) It

is appropriate to provide at Community level a
timetable for a gradual and controlled opening of the
letters market to competition which allows all universal
service providers sufficient time to put in place the further
measures of modernisation and restructuring required to
ensure their long-term viability under the new market
conditions. An appropriate period of
is also
needed to enable Member States to adapt their regulatory
systems to a more open environment.
is therefore
appropriate to provide for a step-by-step approach to
further market-opening, consisting of intermediate steps
representing significant but controlled opening of
the
market, followed by a review and proposal confirming,
if appropriate,
the date of 2009 for the full accom-
plishment of the internal market for postal services or

time

It

determining a relevant alternative step towards it in the
light of the review results.

(15) It is appropriate to ensure that the next phases of market-
opening are both substantial in nature and achievable in
practice for the Member States whilst also ensuring the
continuing of universal service.

(16) General reductions to 100 grams in 2003 and 50 grams
in 2006 in the weight limit of the services which may be
reserved to the universal service providers, combined with
opening outgoing cross-border mail fully to competition
with possible exceptions to the extent necessary to ensure
the provision of universal service, represent relatively
simple and controlled further phases which are never-
theless significant.

(17) In the Community,

the universal

items of ordinary correspondence
weighing between 50 grams and 350 grams represent
the total postal
on average approximately 16 % of
revenues of
service providers, out of
to items of ordinary corre-
which 9 % corresponds
spondence weighing between 100 grams
and 350
items of outward cross-border corre-
grams, whilst
spondence below the 50-gram weight limit represent a
further 3 % or
the total postal
so, on average, of
revenues of the universal service providers.

(18) Price limits for the services capable of being reserved, of
respectively three times in 2003 and two-and-a-half times
in 2006 the public tariff for an item of correspondence in
the first weight step of the fastest standard category, are
appropriate in combination with 100-gram and 50-gram
weight limits where applicable.

(19) Direct mail already represents in most Member States a
dynamic and growing market with substantial growth
prospects while in the remaining Member States there is
considerable potential for growth. Direct mail is already
largely open to competition in six Member States. The
improvements in service flexibility and pricing resultant
from competition would improve the position of direct
mail versus alternative communications media, which, in
turn, would be likely to lead to new postal items as an
additional spin-off and strengthen the position of
the
postal
industry as a whole. Nevertheless, to the extent
necessary to ensure the provision of universal service, it
should be provided that direct mail may continue to be
reserved within the above weight and price limits.

(20) Outgoing cross-border mail represents on average 3 % of
total postal revenues. Opening this part of the market in
all Member States, with exceptions
that would be
necessary to ensure the provision of universal service,
would allow different postal operators to collect, sort
and transport all outgoing cross-border mail.

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(21) Opening incoming cross-border mail

of

correspondence

to competition
would allow circumvention of the 100-gram in 2003
and 50-gram in 2006 limits through relocation of the
posting of a proportion of bulk domestic mail, thereby
making its effects unpredictable. Identifying the origins of
additional
items
enforcement
gram and
50-gram weight limits for items of ordinary incoming
cross-border correspondence and direct mail, as
for
ordinary domestic correspondence, are practical as they
do not present a risk of circumvention either in this way
or through an artificial
increase in the weight of indi-
vidual items of correspondence.

difficulties. One

could present

hundred

(22) Setting a timetable now, aimed at further steps towards
the full accomplishment of the internal market for postal
services, is important for both the long-term viability of
the universal service and the continued development of
modern and efficient postal services.

(23) It is appropriate to continue to provide for the possibility
for Member States to reserve certain postal services to
their universal service provider(s). These arrangements
will enable the universal service providers to complete
the process of adapting their operations and human
resources to conditions of greater competition without
upsetting their financial equilibrium and thus without
jeopardising the safeguarding of universal service.

(24) It is appropriate both to define the new weight and price
limits and the services to which they may apply and to
provide for a further review and decision confirming, if
appropriate, the date of 2009 for the full accomplishment
of the internal market for postal services, or determining a
relevant alternative step towards it in the light of the
review results.

(25) Measures adopted by a Member State, including the estab-
lishment of a compensation fund or any change in its
operation or any implementation of, or payment from,
it, may involve aid granted by a Member State or
through State resources in any form whatsoever within
the meaning of Article 87(1) of the Treaty necessitating
prior notification to the Commission pursuant to Article
88(3) thereof.

(26) The concept of

licensing competitors in the universal
service
combined with requirements
obliging such licensees to contribute to the provision of
universal service.

can be

area

(27) Directive 97/67/EC established that Member States are to
designate one or more national regulatory authorities for
the postal sector that are legally separate from, and oper-
ationally independent of, the postal operators. In view of

regulatory

role national

the European postal markets,

the
the dynamics of
authorities play
important
in particular
should be acknowledged and furthered,
concerning the
reserved
the
ensuring that
task of
services are respected, except in Member States where
there are no reserved services. Article 9 of Directive
97/67/EC allows Member States
to go beyond the
objectives of that Directive.

they relate to the services of

(28) It might be appropriate for national regulatory authorities
to link the introduction of licences to requirements that
consumers of the licensees' services are to have trans-
parent, simple and inexpensive procedures available to
them for dealing with their complaints, regardless of
whether
the universal
service provider(s) or to those of operators holding auth-
It might
orisations,
be
to be
for
available to users of all postal services, whether or not
they are universal
should
include procedures for determining responsibility in case
of loss of, or damage to, mail items.

licence-holders.
these procedures

services. Such procedures

further appropriate

including individual

service.

In doing this,

(29) The universal service providers normally provide services,
for example to business customers, consolidators of mail
for different customers and bulk mailers, enabling them to
enter
the mail stream at different points and under
different conditions by comparison with the standard
letters
service
providers should comply with the principles of trans-
parency
between
different third parties and as between third parties and
universal service providers supplying equivalent services.
It is also necessary for such services to be available to
private customers who post in similar conditions, given
the need for non-discrimination in the provision of
services.

and non-discrimination,

the universal

both as

(30) It is appropriate to postpone until 31 December 2008 the
date for the expiry of Directive 97/67/EC. Authorisation
procedures established in Member States in compliance
with Directive 97/67/EC should not be affected by this
date.

(31) Directive

97/67/EC should

therefore

be

amended

accordingly.

(32) This Directive is without prejudice to the application of
the Treaty rules on competition and on the freedom to
provide services, as explained in particular in the notice
from the Commission on the
the
application of
sector and on the
to the postal
competition rules
assessment of certain State measures relating to postal
services (1),

(1) OJ C 39, 6.2.1998, p. 2.

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HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 97/67/EC is hereby amended as follows:

1. Article 7 shall be replaced by the following:

‘Article 7

the tariffs and to the associated conditions. The tariffs
shall take account of the avoided costs, as compared to
the standard service covering the complete range of
transport, sorting
features offered for the clearance,
items and, together
and delivery of individual postal
with the associated conditions,
shall apply equally
both as between different third parties and as between
third parties and universal service providers supplying
equivalent
shall also be
available to private customers who post under similar
conditions,

services. Any such tariffs

to

universal

standard mail

1.
To the extent necessary to ensure the provision of
universal service, Member States may continue to reserve
service
services
certain
provider(s). Those services shall be limited to the clearance,
sorting, transport and delivery of ordinary items of domestic
correspondence and incoming cross-border correspondence
within both of the following weight and price limits: the
weight limit shall be 100 grams from 1 January 2003 and
50 grams from 1 January 2006. These weight limits shall
not apply as from 1 January 2003 if the price is equal to, or
for an item of
more than, three times the public tariff
the fastest
correspondence in the first weight
category, and, as from 1 January 2006,
the price is
equal to, or more than, two and a half times this tariff.

step of

if

In the case of the free postal service for blind and partially
sighted persons,
to the weight and price
exceptions
restrictions may be permitted.

To the extent necessary to ensure the provision of universal
service, direct mail may continue to be reserved within the
same weight and price limits.

To the extent necessary to ensure the provision of universal
service, for example when certain sectors of postal activity
the specific
have already been liberalised or because of
characteristics particular
in a
Member State, outgoing cross-border mail may continue
to be reserved within the same weight and price limits.

to the postal

services

2.

Document exchange may not be reserved.

The Commission shall

3.
finalise a prospective study
which will assess, for each Member State, the impact on
universal service of the full accomplishment of the postal
internal market in 2009. Based on the study's conclusions,
the Commission shall submit by 31 December 2006 a
report
to the European Parliament and to the Council
accompanied by a proposal confirming, if appropriate, the
date of 2009 for the full accomplishment of the postal
internal market or determining any other step in the light
of the study's conclusions.’;

2. the following indents shall be added to Article 12:

‘— whenever universal

service providers apply special
for example for services for businesses, bulk
tariffs,
from different
mailers or
customers,
trans-
parency and non-discrimination with regard both to

they shall apply the principles of

consolidators of mail

— cross-subsidisation of universal

services outside

the
revenues from services in the
reserved sector out of
reserved sector shall be prohibited except to the extent
is shown to be strictly necessary to fulfil
to which it
specific universal
imposed in the
service obligations
competitive area; except in Member States where there
are no reserved services, rules shall be adopted to this
effect by the national regulatory authorities which shall
inform the Commission of such measures.’;

3. the first and second subparagraphs of Article 19 shall be

replaced by the following:

‘Member States shall ensure that transparent, simple and
inexpensive procedures are drawn up for dealing with
users' complaints, particularly in cases
involving loss,
theft, damage or non-compliance with service quality
standards (including procedures for determining where
responsibility lies in cases where more than one operator
is involved).

Member States may provide that
applied to beneficiaries of services which are:

this principle is also

— outside the scope of the universal service as defined in

Article 3, and

— within the scope of the universal service as defined in
Article 3, but which are not provided by the universal
service provider.

Member States shall adopt measures to ensure that the
procedures referred to in the first subparagraph enable
disputes to be settled fairly and promptly with provision,
where warranted, for a system of reimbursement and/or
compensation.’;

4. the third subparagraph of Article 22 shall be replaced by

the following:

regulatory authorities

‘The national
shall have as a
particular task ensuring compliance with the obligations
arising from this Directive and shall, where appropriate,
establish controls and specific procedures to ensure that
the reserved services are respected. They may also be
charged with ensuring compliance with competition rules
in the postal sector.’;

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5. Article 27 shall be replaced by the following:

‘Article 27

2. Member States shall communicate to the Commission the
texts of the main provisions of national law which they adopt
in the field covered by this Directive.

The provisions of this Directive, with the exception of
Article 26, shall expire on 31 December 2008 unless
otherwise decided in accordance with Article 7(3). The
authorisation procedures described in Article 9 shall not
be affected by this date.’

Article 2

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive no later
than 31 December 2002. They shall
forthwith inform the Commission thereof.

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

Article 3

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. The Commission sent the Council the above proposal for a regulation on 14 July 2000 (1). The

proposal is based on Articles 47(2), 55 and 95 of the Treaty.

2. The European Parliament delivered its opinion on 14 December 2000.

3. The Economic and Social Committee delivered its opinion on 29 November 2000 (2).

4. The Committee of the Regions delivered its opinion on 4 December 2000 (3).

5. The Commission adopted its amended proposal on 21 March 2001 (4).

6. The Council adopted its Common Position in accordance with Article 251 on 6 December 2001.

II. AIM OF THE PROPOSAL

The purpose of this proposal is to respond to the requirement in Directive 97/67/EC to provide for a
further gradual and controlled liberalisation of postal services, to take effect from 1 January 2003 and
to set out a timetable for further opening. It also proposes to resolve various ancillary issues relating to
the smooth functioning of the internal market in postal services.

III. ANALYSIS OF THE COMMON POSITION

The Council fully endorses the aim and the main features of the proposal. In its Common Position it
has, however, amended a number of points of the proposal, the most significant of which are as
follows:

1. The Council has made a number of adjustments to the proposed timetable for liberalisation in order
to ensure a more gradual and controlled market-opening process, taking into account the need to
maintain the universal services and the specificity of Member States. The adjustments made by the
Council move a long way towards Parliament's position (e.g. higher weight and price limits for the
reservable area in 2003, delaying the 50 grams weight step from 2003 to 2006 and the further
subsequent step from 2007 to 2009).

2. The Council adopted the European Parliament's view that outgoing cross-border mail may continue

to be reserved to the extent necessary to ensure provision of the universal service.

3. The Common Position provides for a decisive step towards the full accomplishment of the internal
market for postal services in 2009, ensuring both the right of initiative of the Commission, and the
the European Parliament and the Council. Given the overriding
full codecision powers of
importance of the sub-50 grams category,
in terms of percentage volume of the market, the
Council considered that any decision to liberalise within this market segment must be taken by
way of a further codecision procedure.

4. The Council adopted the European Parliament's view on special services by removing any definition

for these services from the text.

(1) OJ C 337 E, 28.11.2000, p. 220.
(2) OJ C 116, 20.4.2001, p. 99.
(3) OJ C 144, 16.5.2001, p 20.
(4) OJ C 180, 26.6.2001, p. 291.

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IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament Amendments accepted by the Council

— Amendment 2: Recital 5

— Amendment 6: Recital 10

— Amendment 7: Recital 11

— Amendment 9: Recital 10 of the Commission's proposal deleted.

— Amendment 11: Recital 11 of the Commission's proposal deleted.

— Amendment 19: Recital 19 of the Commission's proposal deleted.

— Amendment 24: Recital 23

— Amendment 28: Recital 27

— Amendment 29: Recital 28

— Amendment 33: Recital 30

— Amendment 35: Article 1(1) — Special services (deleted)

— Amendment 39: Article 1(2)

— Amendment 41: Article 1(3)

— Amendment 44: Article 1(5)

— Amendment 58: Recital 6

2. European Parliament amendments accepted in part or in substance by the Council

— Amendment 8: This amendment was accepted in principle. The Council endorsed Parliament's
view that the possibility for advantages in providing the universal service to offset additional
costs arising from this obligation remained to be seen, and therefore preferred to delete the
recital in question.

— Amendment 15: The Council agreed that it was necessary to complete recital 15 with a

reference to the need to ensure the continuing provision of universal service.

— Amendment 46: The Council welcomed the idea of inserting a new recital 8 establishing the
connection between postal services and services of general interest, taking the line set out in the
amended proposal from the Commission.

— Amendment 21: The substance of this amendment has been incorporated into recital 20, as well

as in Article 1(1) amending Article 7 of Directive 97/67/EC.

— Amendment 43: The Council welcomed the idea of amending Article 22 of Directive 97/67/EC
in order to spell out more explicitly the role of the national regulatory authorities, regarding the
need to ensure provision of the universal service. The Council however preferred to focus the
amendment on provisions aiming at ensuring that reserved services are respected.

— Amendments 16, 18, 22 and 38: These amendments dealing essentially with the weight and
price limits of the reservable area were accepted to the extent that Council moved substantially
towards Parliament's view on this question (see point III(1)).

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3. European Parliament amendments not accepted by the Council

Amendments 17 and 20

The Council considered that recitals 17 and 20 as proposed by the Commission (which Parliament
suggested be deleted or shortened) contained useful factual information about the background of the
current postal market and the current extent of liberalisation of direct mail in Member States.

Amendments 1, 23 and 26

The Council took the view that it is necessary to provide for a decisive step towards the full
accomplishment of the internal market for postal services to take place in 2009, ensuring both
the right of
the European
Parliament.

the Commission, and the full codecision powers of

initiative of

Amendments 10, 36 and 48

The Council took the view that these amendments are not needed as their purpose can already be
achieved within the framework of existing Directive 97/67/EC.

Amendment 12

The Council did not consider that a review of the scope of universal service provision should be
imposed as a precondition for defining further market-opening measures. However it should be
underlined that the review to be carried out by the Commission under Article 1(1) (new Article 7(3))
of the Common Position must assess the impact on universal service, for each Member State, of full
liberalisation in 2009.

Amendment 27

The Council considered this amendment inappropriate as the REIMS II agreement is a commercial
agreement between certain universal service providers only, which moreover will expire in
December 2001.

Amendments 13, 47, 49 and 54

The Council did not consider it appropriate to alter the objectives of the existing Directive by
making the promotion of a high level of employment and social protection a new additional
objective.

Amendment 4

The Council considered that this amendment did not properly report on the Lisbon Summit
conclusions.

Amendment 31

The Council rejected this amendment as requirements regarding transparency and non-discrimi-
nation applicable to universal service providers are very important
to ensure fairness to all
operators.

Amendment 55

The Council considered that a reciprocity requirement for access to postal services in Member States
was not appropriate in the context of the internal market.

Amendments 30 and 42

The Council rejected these amendments as a committee fulfilling the purpose of these amendments
is already established by the existing Directive. The provisions of Council Decision 1999/468/EC
(the new ‘Comitology’ Decision) apply automatically.

Amendments 34 and 37

The Council rejected these amendments which are not specific to the postal sector and the purpose
of which is already achieved through other directives such as Directive 2000/43/EC.

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Amendment 32

The Council preferred to delete the underlying recital (recital 30 of the Commission proposal).

Amendment 5

The Council considered that the wording of this amendment reflects the obligation in Article 23 of
Directive 97/67/EC which has already been fulfilled. It should be noted, however, that a further
Commission review in 2006 is a requirement of Article 7(3) as revised by Article 1(1) of the
Common Position. This review is also referred to in recital 24.

Amendment 25

The Council rejected this amendment on the grounds that the proposal should maintain the
neutrality of Directive 97/67/EC with regard to the solutions available to Member States for
ensuring that the universal service is maintained.