Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services
Date: 2002-06-10
Institutions: Council of the European Union, European Parliament
Subjects: administrative transparency, approximation of laws, harmonisation of standards, postal service, provision of services, quality standard, single market

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Official Journal of the European Communities

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DIRECTIVE 2002/39/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 10 June 2002

amending Directive 97/67/EC with regard to the further opening to competition of Community
postal services

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

(2)

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

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
setting of
service
maximum limits for the postal services which Member
States may reserve to their universal service provider(s)
with a view to the maintenance of the universal service,
and a timetable for decision-making on the further
opening of the market to competition, for the purposes
of creating a single market in postal services.

a universal

and the

(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

(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 (OJ C 110 E, 7.5.2002, p. 37) and Decision of the European
Parliament of 13 March 2002 (not yet published in the Official
Journal). Council Decision of 7 May 2002.

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

should be taken that such services operate on the basis
of principles and conditions which enable them to fulfil
their missions.

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

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 employ-
ment and of social protection, are also achieved as objec-
tives.

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.

the Commission,

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 Council and the
respective
Member States
powers. The requested actions are: first, 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

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 provisions
general
economic interest and to the undertakings entrusted with
operating such services.

to services of

relating

The Commission has undertaken a thorough review of
the Community postal sector,
including the commis-
sioning of studies on the economic, social and technolo-
gical developments in the sector, and has consulted
extensively with interested parties.

(4)

(5)

(6)

(7)

(8)

(9)

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

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(10)

(11)

The Community postal sector requires a modern regula-
tory framework which aims in particular at enhancing
the internal market for postal services. Increased compe-
titiveness should enable the postal sector to be integrated
with alternative methods of communication and allow
service provided to ever-more
the quality of
demanding users to be improved.

the

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 possi-
bility 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
further market-
providers may incur as a result of
opening and would thereby further
safeguard the
universal service.

(13) Amongst the factors which bring about change affecting
employment in the postal sector, technological develop-
ment and market pressure for efficiency gains are the
most important; of 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 time-
table for a gradual and controlled opening of the letters
market to competition which allows all universal service
providers sufficient
in place the further
time to put
measures of modernisation and restructuring required to
ensure their long-term viability under the new market
conditions. An appropriate period of time is also needed
regulatory
to enable Member States to adapt
systems to a more open environment. It 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 accomplish-
ment of the internal market for postal services or deter-
mining a relevant alternative step towards it in the light
of the review results.

their

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 compe-
tition with possible exceptions to the extent necessary to
ensure the provision of universal service, represent rela-
tively simple and controlled further phases which are
nevertheless significant.

(17)

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

(18)

Price limits for the services capable of being reserved, of
respectively three 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 neces-
sary to ensure the provision of universal service, would
allow different postal operators to collect, sort and trans-
port all outgoing cross-border mail.

(15)

is appropriate to ensure that
It
market-opening are both substantial

the next phases of
in nature and

(21) Opening incoming cross-border mail

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

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making its effects unpredictable. Identifying the origins
of
items of correspondence could present additional
enforcement difficulties. 100-gram and 50-gram weight
limits for items of ordinary incoming cross-border corre-
spondence 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
items of
increase in the weight of individual
correspondence.

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 posts.

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.

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 accomplish-
ment of the internal market for postal services, or deter-
mining a relevant alternative step towards it in the light
of the review results.

(22)

(23)

(24)

(25) Measures adopted by a Member State,

including the
establishment 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 area can be combined with requirements obliging
such licensees to contribute to the provision of universal
service.

(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
the dynamics of the European Postal markets, the impor-
tant role national regulatory authorities play should be
in particular concerning
acknowledged and furthered,
the task of ensuring that
the reserved 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 Direc-
tive.

(28)

It might be appropriate for national regulatory authori-
ties to link the introduction of licences to requirements
that consumers of the licensees’ services are to have
transparent, simple and inexpensive procedures available

including individual

to them for dealing with their complaints, regardless of
whether they relate to the services of
the universal
service provider(s) or to those of operators holding
authorisations,
It
might be further appropriate for these procedures to be
available to users of all postal services, whether or not
they are universal services. Such procedures should
include procedures for determining responsibility in case
of loss of, or damage to, mail items.

licence-holders.

(29)

(30)

(31)

The universal
service providers normally provide
services, for example to business customers, consolida-
tors 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.
the
universal service providers should comply with the prin-
ciples of transparency and non-discrimination, both as
between different
third parties and as between third
parties and universal service providers supplying equiva-
lent services. It is also necessary for such services to be
available to private customers who post in similar condi-
tions, given the need for non-discrimination in the provi-
sion of services.

In doing this,

In order to keep the European Parliament and the
Council
informed on the development of the internal
market for postal services, the Commission should regu-
larly submit reports to those institutions on the applica-
tion of this Directive.

It is appropriate to postpone until 31 December 2008
the date for the expiry of Directive 97/67/EC. Authorisa-
tion procedures established in Member States in compli-
ance with the Directive 97/67/EC should not be affected
by this date.

(32) Directive 97/67/EC should therefore be amended accord-

ingly.

(33)

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 application of the competi-
tion rules to the postal sector and on the assessment of
certain State measures relating to postal services (1),

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

1.
To the extent necessary to ensure the maintenance of
universal service, Member States may continue to reserve
services to universal service provider(s). Those services shall
be limited to the clearance, sorting, transport and delivery of
items of domestic correspondence and incoming cross-
border correspondence, whether by accelerated delivery or
not, within both of the following weight and price limits.

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

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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 more than, three times the public tariff for an item of
correspondence in the first weight step of the fastest cate-
gory, and, as from 1 January 2006, if the price is equal to,
or more than, two and a half times this tariff.

In the case of the free postal service for blind and partially
sighted persons, exceptions to the weight and price restric-
tions 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
have already been liberalised or because of the specific char-
acteristics particular to the postal services in a Member State,
outgoing cross-border mail may continue to be reserved
within the same weight and price limits.

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 the Council accom-
panied 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

consolidators of mail

service providers apply special
for example for services for businesses, bulk
tariffs,
from different
mailers or
customers, they shall apply the principles of transpar-
ency and non-discrimination with regard both to 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 features
offered for the clearance, transport, sorting and delivery
of individual postal items and, together with the asso-
ciated conditions, shall apply equally both as between
different third parties and as between third parties and
universal service providers supplying equivalent services.
Any such tariffs shall also be available to private custo-
mers who post under similar conditions,

— cross-subsidisation of universal

services outside the
reserved sector out of revenues from services in the
reserved sector shall be prohibited except to the extent
to which it is shown to be strictly necessary to fulfil
specific universal service obligations imposed in the
competitive area; except in Member States where there
are no reserved services, rules shall be adopted to this

effect by the national regulatory authorities who 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’
theft,
complaints, particularly in cases
damage or non-compliance with service quality standards
(including procedures for determining where responsibility
lies in cases where more than one operator is involved).

involving loss,

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,
for a system of reimbursement and/or
where warranted,
compensation.’;

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

following:

‘The national regulatory authorities 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.’

5. Article 23 shall be replaced by the following:

‘Article 23

Without prejudice to Article 7, every two years, on the first
occasion no later than 31 December 2004, the Commission
shall submit a report to the European Parliament and the
Council on the application of this Directive, including the
appropriate information about developments in the sector,
particularly concerning economic, social, employment and
technological aspects, as well as about quality of service. The
report shall be accompanied where appropriate by proposals
to the European Parliament and the Council.’;

6. Article 27 shall be replaced by the following:

‘Article 27

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

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Article 2

Article 3

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 forth-
with inform the Commission thereof.

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

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

This Directive is addressed to the Member States.

Article 4

Done at Luxembourg, 10 June 2002.

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.

For the European Parliament

The President

P. COX

For the Council

The President

J. PIQUÉ I CAMPS