Common Position (EC) No 19/2007 of 8 November 2007 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 the adoption of a Directive of the European Parliament and of the Council amending Council Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services
Date: 2007-11-08
Institutions: Council of the European Union
Subjects: competition, financing, liberalisation of the market, postal service, provision of services, public service, services of general interest, universal service

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Official Journal of the European Union

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COMMON POSITION (EC) No 19/2007

adopted by the Council on 8 November 2007

with a view to adopting Directive 2007/…/EC of the European Parliament and of the Council of …
amending Council Directive 97/67/EC with regard to the full accomplishment of the internal market
of Community postal services

(2007/C 307 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 47(2), Articles 55 and 95
thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

(2)

(3)

The Council in its Resolution of 7 February 1994 on the
development of Community Postal Services (4) identified
as one of
the main objectives of Community postal
policy the reconciling of the gradual, controlled opening
to competition of the postal market with a sustainable
guarantee of the provision of the universal service.

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 (5) 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 be
to the maintenance of
reduced in a gradual and progressive manner, and a time-
table for decision-making on the further opening of the
market to competition, for the purposes of creating an
internal market in postal services.

the universal

service,

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

(1) OJ C 168, 20.7.2007, p. 74.
(2) OJ C 197, 24.8.2007, p. 37. Opinion delivered following non-compul-

sory consultation.

(3) Opinion of the European Parliament of 11 July 2007 (not yet published
in the Official Journal), Council Common Position of 8 November
2007 and Position of the European Parliament of … (not yet published
in the Official Journal).
(4) OJ C 48, 16.2.1994, p. 3.
(5) OJ L 15, 21.1.1998, p. 14. Directive as last amended by Regulation (EC)

No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(4)

(5)

(6)

(7)

(8)

The positive role played by services of general economic
interest was emphasised by Special Eurobarometer 219
of October 2005 which indicated that postal services are
the most appreciated services of general economic
interest according to users throughout the EU, with 77 %
of people questioned responding positively.

Since they constitute an essential instrument for commu-
nication and information exchange, postal services fulfil a
vital role which contributes to the objectives of social,
economic and territorial cohesion in the Union. Postal
networks have important territorial and social dimen-
sions which make universal access to essential
local
services possible.

The measures in the area of postal services should be
designed in such a way that the tasks of the Community
pursuant to Article 2 of the Treaty, namely, to promote
throughout the Community a harmonious, balanced and
sustainable development of economic activities, a high
level of employment and of social protection, sustainable
and non-inflationary growth, a high degree of competi-
tiveness and convergence of economic performance, the
raising of the standard of living and quality of life, and
economic and social cohesion and solidarity among
Member States, are achieved as objectives.

European postal markets have undergone dramatic
change in recent years, a development that has been
driven by technological advancements and increased
competition resulting from deregulation. Due to globali-
sation, it is essential to take a pro-active and pro-develop-
ment stance so as not to deprive Union citizens of the
benefits of such change.

In its Conclusions concerning the mid-term review of the
Lisbon Strategy the European Council of 22 and
23 March 2005 re-stated the importance of completing
the internal market as an instrument to foster growth
and create more and better jobs, and the important role
that effective services of general economic interest have
to play in a competitive and dynamic economy. These
Conclusions remain applicable to postal services as an
essential instrument of communication, trade, and social
and territorial cohesion.

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(9)

(10)

(11)

(12)

(13)

The European Parliament Resolution of 2 February 2006
on the application of the Postal Directive (1) highlighted
the social and economic importance of efficient postal
services and their important role within the framework
of the Lisbon Strategy, indicating that reform measures
undertaken so far have brought about significant positive
developments in the postal sector, along with increased
quality, more efficiency and better user-orientation. In its
the European Parliament called on the
Resolution,
Commission, in view of the sometimes perceptibly diver-
gent developments in universal service obligations in the
Member States,
in particular, when
drawing up its prospective study, on the quality of the
universal service provided and on its future funding and
to propose,
in the context of that study, a definition,
scope and appropriate financing for the universal service.

to concentrate

the full accomplishment of

In accordance with Directive 97/67/EC, a prospective
study assessing, for each Member State, the impact on
universal service of
the
internal market of Community postal services in 2009
has been carried out. The Commission has also under-
taken a thorough review of the Community postal sector,
including the commissioning of studies on the economic,
social and technological developments in the sector, and
has consulted extensively with interested parties.

that

The prospective study states
the basic aim of
ensuring the sustainable provision of a universal service
matching the standard of quality defined by the Member
States in accordance with Directive 97/67/EC can be
secured throughout the Community by 2009 without the
need for a reserved area.

The progressive and gradual opening of postal markets to
competition has provided universal service providers with
sufficient time to put in place the necessary modernisa-
tion and restructuring measures required to ensure their
long-term viability under new market conditions, and
enabled Member States to adapt their regulatory systems
to a more open environment. Furthermore, Member
States may avail themselves of the opportunity offered by
the transposition period, and the substantial time neces-
sary for the introduction of effective competition,
in
order to proceed with further modernisation and restruc-
turing of the universal service providers as necessary.

The prospective study shows that
the reserved area
should no longer be the preferred solution for the finan-
cing of the universal service. This assessment takes into
account the interest of the Community and its Member
States in the accomplishment of the internal market and
its potential for delivering growth and employment, as
well as ensuring the availability of an efficient service of
general economic interest for all users.
It is therefore
appropriate to confirm the final date for the accomplish-
ment of the internal market for postal services.

(14)

There are a number of drivers of change within the
postal sector, notably demand and changing user needs,

(1) OJ C 288 E, 25.11.2006, p. 77.

organisational change, automation and the introduction
of new technologies, substitution by electronic means of
communication and the opening of the market. In order
to meet competition, cope with new consumer require-
ments and secure new sources of funding, postal service
providers may diversify their activities by providing elec-
tronic business services or other
information society
services.

the

including

service providers,

Postal
designated
universal service providers, are being spurred on to
improve efficiency as a result of new competitive chal-
lenges (such as digitalisation and electronic communica-
tions) which differ from the traditional postal services
and this will in itself contribute to a major increase in
competitiveness.

Complete market-opening will help to expand the overall
size of the postal markets. It will further contribute to
maintaining sustainable and quality employment within
universal service providers as well as facilitate the crea-
tion of new jobs in other operators, new entrants and
associated economic sectors. This Directive is without
prejudice to the competence of Member States to regulate
employment conditions in the postal services sector,
which should not, however, lead to unfair competition.
Social considerations should be taken into due account
when preparing the opening up of the postal market.

Transport alone should not be considered as a postal
service. Direct mail consisting solely of advertising,
marketing or publicity material and comprising an iden-
tical message, except for the addressee's name, address
and identifying number, may be considered as an item of
correspondence.

Increased competitiveness should furthermore enable the
postal sector to be integrated with alternative methods of
communication and allow the quality of
the service
provided to evermore demanding users to be improved.

Rural postal networks, in, inter alia, mountain and island
regions, play an important role in integrating businesses
into the national/global economy and in maintaining
cohesion in social and employment terms. Furthermore,
rural postal points in remote regions can provide an
important infrastructure network for access to new elec-
tronic communications services.

(15)

(16)

(17)

(18)

(19)

(20) Developments

in the neighbouring communications
markets have had a varied impact in different regions of
the Community and segments of the population and on
the use of postal services. Territorial and social cohesion
should be maintained, and taking into account
that
Member States may adapt some specific service features
to accommodate local demand by making use of the flex-
ibility provided for in Directive 97/67/EC,
it is appro-
priate to fully maintain the universal service and the asso-
ciated quality requirements set out in Directive 97/67/EC.

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It is appropriate to clarify, in line with existing practice,
that Member States should provide clearance and delivery
of mail only on the working days of the week that are
not defined, by national legislation, as public holidays. In
order to ensure that the opening of the market continues
to benefit all users,
in particular consumers and small
and medium-sized enterprises, Member States should
monitor
and supervise market developments. They
should take appropriate regulatory measures, available
under Directive 97/67/EC, to ensure that accessibility to
postal services continues to satisfy the needs of users,
including, by ensuring, where appropriate, a minimum
number of services at the same access point and, in par-
ticular,
there is an appropriate density of access
points to postal services in rural and remote regions.

that

(21)

(22)

The universal service guarantees, in principle, one clear-
ance and one delivery to the home or premises of every
natural or
legal person every working day, even in
remote or sparsely populated areas.

The provision of high-quality postal services contributes
significantly to attaining the objective of social and terri-
torial cohesion. E-commerce,
in particular, offers new
opportunities for remote and sparsely populated areas to
participate in economic life for which the provision of
good postal services is an important precondition.

(23) Directive 97/67/EC established a preference for the provi-
sion of the universal service through the designation of
universal service providers. Member States may require
that the universal service be provided throughout the
whole of the national territory. Greater competition and
choice means that Member States should be given further
flexibility to determine the most efficient and appropriate
mechanism to guarantee the availability of the universal
service, while respecting the principles of objectivity,
transparency, non-discrimination, proportionality and
least market distortion necessary to ensure the free provi-
sion of postal services in the internal market. Member
States may apply one or a combination of the following:
the provision of the universal service by market forces,
the designation of one or several undertakings to provide
different elements of the universal service or to cover
different parts of the territory and public procurement of
services.

the provision of

In the event that a Member State decides to designate
one or more undertakings for
the
the various
universal service, or for the provision of
components of the universal service, it must be ensured
that quality requirements pertaining to the universal
service are imposed in a transparent and proportionate
manner on the universal service providers. Where a
Member State designates more than one undertaking, it
should ensure that there is no overlap in the universal
service obligations.

(24)

is important

It
the
universal services provided and that postal service provi-
the rights and obligations of
ders be informed of

that users be fully informed of

the

specific

universal
should
service provider(s). Member States
ensure that users remain fully informed of the features
and accessibility of
services provided.
Member States should ensure that all such information is
made available. It is however appropriate, in line with the
enhanced flexibility given in favour of Member States, to
the universal service in ways
ensure the provision of
other
service
the universal
provider(s), in order to give Member States the flexibility
to decide how such information is to be made available
to the public.

than the designation of

(25)

(26)

In the light of the studies carried out and with a view to
unlocking the full potential of the internal market for
it is appropriate to end the use of the
postal services,
reserved area and special rights as a means of ensuring
that the universal service is financed.

The external financing of the residual net costs of the
universal service may still be necessary for some Member
States. It is therefore appropriate to explicitly clarify the
alternatives available in order to ensure the financing of
the universal service, to the extent that this is needed and
is adequately justified, while leaving Member States the
choice of the financing mechanisms to be used. These
alternatives include the use of public procurement proce-
dures including, as provided for in the public procure-
ment Directives, competitive dialogue or negotiated
procedures with or without the publication of a contract
notice and, whenever universal service obligations entail
net costs of the universal service and represent an unfair
burden on the designated universal service provider,
public compensation and cost sharing between service
providers and/or users in a transparent manner by means
of contributions to a compensation fund. Member States
may use other means of financing permitted by Com-
munity law, such as deciding, where and if necessary, that
the profits accruing from other activities of the universal
service provider(s) outside the scope of
the universal
service are to be assigned, in whole or in part, to the
financing of the net costs of the universal service, as long
as this is in line with the Treaty. Without prejudice to the
obligation of Member States to uphold the Treaty rules
on State aid, including specific notification requirements
in this context, Member States may notify the Commis-
sion of the financing mechanisms used to cover any net
costs of the universal service, which should be reflected
in the regular
the Commission should
that
present to the European Parliament and Council on the
application of Directive 97/67/EC.

reports

(27)

Postal service providers may be required to contribute to
the financing of
the universal service in cases where
provision is made for a compensation fund. In order to
determine which undertakings may be required to contri-
bute to a compensation fund, Member States should
consider whether the services provided by such undertak-
ings may,
from a user's perspective, be regarded as
services falling within the scope of the universal service,

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as they display inter-changeability to a sufficient degree
with the universal service, taking into account the charac-
teristics of the services, including added value features, as
well as the intended use and the pricing. These services
do not necessarily have to cover all the features of the
universal service, such as daily delivery or complete
national coverage.

the provision of

In order to comply with the principle of proportionality
when determining the contribution to be made to the
the universal service in a
costs of
Member State required from these undertakings, Member
States should use transparent and non-discriminatory
criteria such as the share of these undertakings in the
activities falling within the scope of the universal service
in this Member State. Member States may require those
providers which are required to contribute to a compen-
sation fund to introduce appropriate accounting separa-
tion in order to ensure the functioning of the fund.

The principles of transparency, non-discrimination and
proportionality, as presently provided for in Directive
97/67/EC, should continue to be applied to any financing
mechanism and any decision in this area should be based
on transparent, objective and verifiable criteria. In par-
ticular, the net cost of the universal service should be
calculated, under the supervision of the national regula-
tory authority, as the difference between the net costs of
a designated universal service provider operating under a
universal service obligation and not operating under a
universal service obligation. The calculation should take
into account all other relevant elements,
including any
market benefits which accrue to a postal service provider
designated to provide universal service, the entitlement to
a reasonable profit and incentives for cost efficiency.

In cases where Member States decide to make accessible
to the public, on their national territory, additional or
complementary services, with the exception of
those
relating to the universal service obligations, as defined in
this Directive, such as pensions and postal orders delivery
in rural areas, these services should not be subject to any
compensation mechanisms requiring the contribution of
specific undertakings. Where appropriate, Member States
may grant financing for such additional or complemen-
tary services in accordance with the Treaty rules on State
aid. Except in the case of universal service provider(s), the
authorisations may not be made subject to the obligation
to provide such additional services.

It is appropriate to provide Member States that have
acceded to the Union after the entry into force of Direc-
tive 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 (1) and may have faced par-
ticular difficulties regarding the smooth adaptation of
their postal markets because they joined the postal
reform process at a late stage, and certain Member States

(28)

(29)

(30)

(31)

(1) OJ L 176, 5.7.2002, p. 21.

with a small population and a limited geographical size
having specific characteristics that are particular to postal
services or with a particularly difficult topography, with a
huge number of islands with the possibility to postpone
the implementation of this Directive for a limited period
of time, in order to continue to reserve services to their
universal service provider(s), subject to notification to the
Commission. Taking into account the exceptional nature
it is also appropriate, within this
of such a possibility,
limited period of
time and for a limited number of
services, to allow those Member States that have comple-
tely opened up their markets to refuse monopolies oper-
ating in another Member State authorisation to operate
in their own territory.

(32)

assistance

The Commission should provide
to the
Member States on the different aspects of the implemen-
tation of this Directive, including on the calculation of
any net cost. Moreover, cooperation between national
regulatory authorities in continuing to develop bench-
marks and guidance in this area should contribute to the
harmonised application of this Directive.

(33) Member States should be allowed to use general authori-
licences whenever justified and
sations and individual
proportionate to the objective pursued. However, as high-
lighted by the Third report on the application of Direc-
tive 97/67/EC, further harmonisation of the conditions
that may be introduced appears necessary in order to
reduce unjustified barriers to the provision of services in
the internal market. In this context, Member States may
for example allow postal service providers to choose
between the obligation to provide a service or to contri-
bute financially to the costs of this service provided by
another provider, but should no longer be allowed to
impose concurrently a requirement to contribute to a
sharing mechanism and universal service or quality obli-
gations that are intended to serve the same purpose. It is
also appropriate to clarify that some of the provisions on
general authorisations and licensing should not apply to
designated universal service providers.

(34)

In an environment where several postal undertakings
provide services within the universal service area,
it is
appropriate to require all Member States
to assess
infrastructure or
whether some elements of the postal
certain services generally provided by universal service
providers should be made accessible to other operators
providing similar services, in order to promote effective
competition, and/or protect all users by ensuring the
overall quality of
service. Where several
universal service providers with regional postal networks
exist, Member States should also assess and, where neces-
sary, ensure their interoperability in order to prevent
impediments to the prompt transport of postal items. As
the legal and market situation of
these elements or
services is different among the Member States it is appro-
to adopt an
priate to only require Member States

the postal

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informed decision on the need, extent and choice of the
regulatory instrument,
including where appropriate on
cost sharing. This provision is without prejudice to the
right of Member States to adopt measures to ensure
access to the postal network under conditions of trans-
parency and non-discrimination.

(35) Member States should ensure that postal service provi-
ders, when processing personal data pursuant to Directive
97/67/EC, apply Community and national provisions on
the protection of personal data, in particular those laid
down by Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protec-
tion of
individuals with regard to the processing of
personal data and on the free movement of such data (1).

(36)

The provisions of this Directive should be without preju-
dice to national provisions governing the expropriation
conditions for organising the universal service provision.

(37) Given the importance of postal services for blind and
partially-sighted persons, it is appropriate to confirm that
the opening of the market should not prevent the conti-
nuing provision by the universal service provider(s) of
for blind and partially-sighted
certain free
persons introduced by the Member States in accordance
with applicable international obligations.

services

(38)

In a fully competitive environment, it is important, both
for the financial equilibrium of the universal service as
well as for limiting market distortions, that the principle
that prices reflect normal commercial conditions and
costs is only departed from in order to protect public
interests. This objective should be achieved by continuing
to allow Member States to maintain uniform tariffs for
single piece tariff mail, the service most frequently used
by consumers, including small and medium-sized enter-
prises. Member States may also maintain uniform tariffs
for some other mail items, such as, for example, newspa-
pers and books, to protect general public interests, such
as access to culture, ensuring participation in a demo-
cratic society (freedom of press) or regional and social
cohesion.

(39)

For the provision of services for all users, including busi-
nesses, bulk mailers and consolidators of mail
from
different users, universal service providers may enjoy
more price flexibility in line with the cost-orientation
principle. Tariffs should take account of
the avoided
costs, as compared to the standard service covering the
complete range of
features offered for the clearance,
sorting, transport and distribution of individual postal
items.

(40)

(41)

In view of the national specificities involved in the regu-
the conditions under which the incumbent
lation of
service provider must operate in a fully
universal
is appropriate to leave
competitive environment,
Member States the freedom to decide how best
to
monitor cross-subsidies.

it

In view of
the transition towards a fully competitive
market, and in order to prevent cross-subsidies from
adversely affecting competition,
is appropriate to
continue to require Member States to maintain the obli-
gation on universal service providers of keeping separate
and transparent accounts, subject to necessary adapta-
tions.

it

This obligation should provide national regulatory autho-
rities, competition authorities and the Commission with
the information necessary to adopt decisions related to
the universal service and to monitor fair market condi-
tions until competition becomes effective. Cooperation
between national regulatory authorities in continuing to
develop benchmarks and guidelines in this area should
contribute to the harmonised application of these rules.

separate

Keeping
should
and transparent
provide Member States and their national regulatory
authorities with accounting information of
sufficient
detail to:

accounts

— adopt decisions related to the universal service,

— be used as an input when determining whether the
universal service obligations imposed entail a net cost
and represent an unfair
financial burden on the
universal service provider,

— ensure that the tariffs applied to the universal service
comply with the principles on tariffs as set out in this
Directive,

— ensure compliance with the principles on terminal

dues as set out in this Directive, and

— monitor

fair market conditions until competition

becomes effective.

(42)

In line with existing rules in other service areas and in
order to increase consumer protection, it is appropriate
application of minimum principles
to extend the
concerning
complaint procedures beyond universal
service providers. With a view to increasing the effective-
ness of complaint handling procedures, it is appropriate
to encourage the use of out-of-court settlement proce-
in Commission Recommendation
dures as
98/257/EC of 30 March 1998 on the principles applic-
able to the bodies responsible for out-of-court settlement
of consumer disputes (2) and Commission Recommenda-
tion 2001/310/EC of 4 April 2001 on the principle for
out-of-court bodies involved in the consensual resolution

set out

(1) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC)

No 1882/2003.

(2) OJ L 115, 17.4.1998, p. 31.

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of consumer disputes (1). Consumer interests would also
be furthered through the enhanced inter-operability
between operators
to certain
elements of infrastructure and services, and the require-
ment for cooperation between national regulatory autho-
rities and consumer protection bodies.

resulting from access

In order to protect the interests of users in the event of
theft or loss of, or damage to, postal
items, Member
States should introduce, where warranted, a system of
reimbursement and/or compensation.

(43) Directive 97/67/EC provides that certain measures are to
be
adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the proce-
dures for the exercise of implementing powers conferred
on the Commission (2).

(44) Decision 1999/468/EC has been amended by Decision
2006/512/EC, which introduced the regulatory procedure
with scrutiny for the adoption of measures of general
scope designed to amend non-essential elements of a
basic instrument adopted in accordance with the proce-
dure referred to in Article 251 of the Treaty, inter alia by
deleting some of those elements or by supplementing the
instrument with non-essential elements.

(45)

(46)

(47)

as

for

future

In particular, the Commission should be empowered to
adopt measures
adjustment of
regards
quality-of-service standards
to technical progress or
market developments as well as of standardised condi-
independent performance monitoring by
tions
external bodies. Since those measures are of general
scope and are designed to amend non-essential elements
of this Directive and to supplement this Directive by the
addition of new non-essential elements, they must be
adopted in accordance with the regulatory procedure
with scrutiny provided for in Article 5a of Decision
1999/468/EC.

The Committee assisting the Commission in accordance
with Directive 97/67/EC should follow developments in
the provision of the universal service in Member States.

The role of national regulatory authorities is likely to
remain crucial,
in particular in those Member States
where the transition to competition still needs to be
completed. In accordance with the principle of separation
of regulatory and operational functions, Member States
should guarantee the independence of the national regu-
latory authorities, thereby ensuring the impartiality of
their decisions. This requirement of
independence is
without prejudice to the institutional autonomy and
constitutional obligations of the Member States and to
the principle of neutrality with regard to the rules in
Member States governing the system of property owner-
ship laid down in Article 295 of the Treaty. National

(1) OJ L 109, 19.4.2001, p. 56.
(2) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

regulatory authorities should be provided with all neces-
sary resources, in terms of staffing, expertise and finan-
cial means, for the performance of their tasks.

(48) Due to the frequent involvement of different national
bodies in the exercise of regulatory functions, it is appro-
priate to introduce transparency in the allocation of tasks
and require the different relevant bodies charged with
sector regulation, the application of competition rules
and with dealing with consumer issues to cooperate in
their
order to ensure the effective accomplishment of
tasks.

(49) Any party which is the subject of a decision by a national
regulatory authority should have the right to appeal to a
body that is independent of that authority. This body
may be a court. This appeal procedure is without preju-
dice to the division of competences within national judi-
cial systems and to the rights of legal entities or natural
persons under national
law. Pending the conclusion of
these procedures there is a need to ensure the temporary
validity of national regulatory authorities' decisions in
order to guarantee legal certainty and market security.

(50) National regulatory authorities should, where necessary,
cooperate with other regulatory bodies of Member States
and with the Commission in carrying out their tasks
under Directive 97/67/EC. This would promote the devel-
opment of the internal market for postal services and
help to ensure the consistent application, in all Member
States, of the provisions laid down by the Directive, in
particular
law implementing
Community law gives national
regulatory authorities
considerable discretionary powers in the application of
the relevant rules. This cooperation could take place, inter
alia, within the Committee assisting the Commission in
accordance with the Directive or within a group
comprising European regulators. Member States should
decide which bodies are national regulatory authorities
for the purposes of the Directive.

in areas where national

(51) National regulatory authorities need to gather informa-
tion from market players in order to carry out their tasks
effectively. Requests for information should be propor-
tionate and not impose an undue burden on undertak-
ings. Such information may also need to be gathered by
the Commission in order to allow it to fulfil its obliga-
tions under Community law. The recipient of information
should ensure confidentiality in accordance with the rules
in force.

(52)

In order
to keep the European Parliament and the
Council informed of developments in the internal market
for postal services,
the Commission should regularly
submit reports to those institutions on the application of
Directive 97/67/EC.

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(53)

This Directive does not affect labour law, that is any legal
or contractual provision concerning employment condi-
tions, working conditions, including health and safety at
work and the relationship between employers and
workers, which Member States apply in accordance with
law which is in conformity with Community
national
law. Equally,
the social
security legislation of the Member States. Where neces-
sary, Member States may reflect working conditions in
their authorisation procedures in line with the principles
of transparency and proportionality.

this Directive does not affect

whatsoever within the meaning of Article 87(1) of the
Treaty,
this Directive is without prejudice to Member
States' obligation to respect the Treaty rules on State aid.

(60)

In accordance with point 34 of
the Interinstitutional
agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the inter-
ests of the Community, their own tables illustrating, as
far as possible, the correlation between this Directive and
the transposition measures, and to make them public,

(54) Member States should ensure that sufficient access points
are established that take account of the needs of users in
rural and sparsely populated areas. Member States should
ensure an appropriate density of access points in these
areas in order to satisfy the universal service obligation.

(55)

(56)

In order to maintain the framework for the regulation of
the postal sector, the date of expiry of Directive 97/67/EC
should be deleted. The provisions that have not been
amended by this Directive continue to apply. The services
that Member States may continue to reserve, during the
implementation period, are those specified in Direc-
tive 97/67/EC.

Since the objectives of this Directive, namely achieving
services,
an internal market of Community postal
ensuring a common level of universal services for all
users and setting harmonised principles for the regulation
of postal services, cannot be sufficiently achieved by
Member States and can therefore, by reason of the scale
and effects, be better achieved at Community level, the
Community may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve those objec-
tives.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

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

1. Article 1 shall be replaced by the following:

‘Article 1

This Directive establishes common rules concerning:

— the

conditions governing the provision of postal

services,

— the provision of a universal postal service within the

Community,

— the financing of universal services under conditions that
guarantee the permanent provision of such services,

— tariff principles and transparency of accounts

for

universal service provision,

— the setting of quality standards for universal service
provision and the setting-up of a system to ensure
compliance with those standards,

— the harmonisation of technical standards,

— the creation of independent national regulatory authori-

ties.’;

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

2. Article 2 shall be amended as follows:

ingly.

(58)

This Directive is consistent with other Community instru-
ments concerning services.
In the event of conflict
between a provision of this Directive and a provision of
in particular Directive
another Community instrument,
the
2006/123/EC of
Council of 12 December 2006 on services in the internal
market (1), the provisions of this Directive will prevail
and will apply in full to the postal sector.

the European Parliament and of

(59)

This Directive is without prejudice to the application of
the Treaty rules on competition and on the freedom to
provide services. Insofar as mechanisms for the financing
of the universal service involve aid granted by a Member
in any form
State or

through State aid resources

(a) point 1 shall be replaced by the following:

‘1. postal services: services involving the clearance,
sorting, transport and distribution of postal items;’;

(b) the following point shall be inserted:

‘1a. postal service provider: undertaking that provides

one or more postal services;’;

(c) in point 2 the words ‘public postal network’ shall be

replaced by ‘postal network’;

(d) point 3 shall be replaced by the following:

‘3. access points: physical

facilities,

including letter
boxes provided for the public either on the public
highway or at the premises of the postal service
items may be deposited
provider(s), where postal
with the postal network by senders;’;

(1) OJ L 376, 27.12.2006, p. 36.

(2) OJ C 321, 31.12.2003, p. 1.

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(e) point 4 shall be replaced by the following:

(l) point 19 shall be replaced by the following:

‘4. clearance: the operation of collecting postal items

by a postal service provider;’;

(f) point 6 shall be replaced by the following:

‘6. postal item: an item addressed in the final form in
which it
is to be carried by a postal service
provider. In addition to items of correspondence,
such items also include for instance books, catalo-
gues, newspapers, periodicals and postal parcels
containing merchandise with or without commer-
cial value;’;

(g) point 8 shall be deleted;

(h) point 12 shall be deleted;

(i) point 13 shall be replaced by the following:

‘13. universal service provider: the public or private
postal
service provider providing a universal
postal service or parts thereof within a Member
State, the identity of which has been notified to
the Commission in accordance with Article 4;’;

(j) point 14 shall be replaced by the following:

‘14. authorisations: any permission setting out rights
and obligations specific to the postal sector and
allowing undertakings to provide postal services
and, where applicable, to establish and/or operate
their networks for the provision of such services,
in the form of a general authorisation or indivi-
dual licence as defined below:

— “general

an

authorisation”:

authorisation,
regardless of whether it is regulated by a “class
licence” or under general law and regardless of
whether such regulation requires registration
or declaration procedures, which does not
require the postal service provider concerned
to obtain an explicit decision by the national
regulatory authority before
exercising the
rights stemming from the authorisation,

— “individual licence”: an authorisation which is
granted by a national regulatory authority and
which gives a postal service provider specific
rights, or which subjects that undertaking's
operations
supple-
menting the general
authorisation where
applicable, where the postal service provider is
not entitled to exercise the rights concerned
received the decision by the
until
national regulatory authority;’;

to specific obligations

it has

‘19. essential

requirements:

conditions on the

general non-economic
reasons which can induce a Member State to
impose
supply of postal
services. These reasons are the confidentiality of
correspondence,
the network as
security of
regards the transport of dangerous goods, respect
for
the terms and conditions of employment,
social security schemes, laid down by law, regu-
lation or administrative provision and/or by
collective agreement negotiated between national
in accordance with Community
social partners,
and national law and, where justified, data protec-
tion, environmental protection and regional plan-
ning. Data protection may include personal data
protection,
information
transmitted or stored and protection of privacy;’;

confidentiality of

the

(m) the following point shall be added:

‘20. services provided at single piece tariff: postal
services for which the tariff is set in the general
terms and conditions of universal service provider
(s) for individual postal items.’;

3. Article 3 shall be amended as follows:

(a) the first subparagraph of paragraph 3 shall be replaced

by the following:

service is guaranteed not

‘3. Member States shall take steps to ensure that the
universal
than five
working days a week, save in circumstances or geogra-
phical conditions deemed exceptional, and that
it
includes as a minimum:

less

— one clearance,

— one delivery to the home or premises of every
natural or legal person or, by way of derogation,
under conditions at the discretion of the national
regulatory authority, one delivery to appropriate
installations.’;

(b) paragraph 5 shall be replaced by the following:

limit of universal

The national regulatory authorities may increase
‘5.
the weight
service coverage for
postal parcels to any weight not exceeding 20 kilo-
grams and may lay down special arrangements for the
door-to-door delivery of such parcels.

Notwithstanding the weight limit of universal service
coverage for postal parcels established by a given
Member State, Member States shall ensure that postal
parcels
and
weighing up to 20 kilograms are delivered within their
territory.’;

received from other Member States

(k) point 17 shall be replaced by the following:

‘17. user: any natural or legal person benefiting from
service provision as a sender or an

postal
addressee;’;

(c) paragraph 6 shall be replaced by the following:

The minimum and maximum dimensions for the
‘6.
postal items in question shall be those as laid down in
the relevant provisions adopted by the Universal Postal
Union.’;

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4. Article 4 shall be replaced by the following:

7. the heading of Chapter 3 shall be replaced by the following:

‘Article 4

1.
Each Member State shall ensure that the provision of
the universal service is guaranteed and shall notify the
Commission of the steps it has taken to fulfil this obliga-
tion. The Committee referred to in Article 21 shall be
informed of the measures established by Member States to
ensure the provision of the universal service.

2. Member States may designate one or more undertak-
ings as universal service providers in order that the whole
of the national territory can be covered. Member States
may designate different undertakings to provide different
elements of universal service and/or to cover different parts
of the national territory. When they do so, they shall deter-
mine in accordance with Community law the obligations
and rights assigned to them and shall publish these obliga-
In particular, Member States shall take
tions and rights.
measures
the conditions under which
universal services are entrusted are based on the principles
of
transparency, non-discrimination and proportionality,
thereby guaranteeing the continuity of the universal service
provision, by taking into account the important role it
plays in social and territorial cohesion.

to ensure that

the universal service provider(s)

Member States shall notify the Commission of the identity
they designate. The
of
designation of a universal service provider shall be subject
to a periodic review and be examined against the conditions
and principles set out in this Article. However, Member
States shall ensure that the duration of this designation
provides a sufficient period for return on investments.’;

5. paragraph 2 of Article 5 shall be replaced by the following:

‘2.
The provisions of paragraph 1 shall not preclude
measures which the Member States take in accordance with
requirements relating to the public interest recognised in
in particular Articles 30 and 46 thereof,
the Treaty,
inter alia, public morality, public security,
concerning,
including criminal investigations, and public policy.’;

6. Article 6 shall be replaced by the following:

‘Article 6

Member States shall take steps to ensure that users and
postal service providers are regularly given sufficiently
detailed and up-to-date information by the universal service
provider(s) regarding the particular features of the universal
service offered, with special reference to the general condi-
tions of access to these services as well as to prices and
quality standard levels. This information shall be published
in an appropriate manner.

‘Financing of universal services’;

8. Article 7 shall be replaced by the following:

‘Article 7

1. Member States shall not grant or maintain in force
exclusive or special rights for the establishment and provi-
sion of postal services. Member States may finance the
provision of universal services in accordance with one or
more of the means provided for in paragraphs 2, 3 and 4,
or in accordance with any other means compatible with the
Treaty.

2. Member States may ensure the provision of universal
services by procuring such services in accordance with
and regulations,
applicable public procurement
including, as provided for in Directive 2004/17/EC of the
European Parliament and of the Council of 31 March 2004
coordinating the procurement procedures of entities oper-
ating in the water, energy, transport and postal services (*),
competitive dialogue or negotiated procedures with or
without publication of a contract notice.

rules

3. Where a Member State determines that the universal
service obligations, as provided for in this Directive, entail a
net cost, calculated taking into account Annex I, and repre-
sent an unfair financial burden on the universal service
provider(s), it may introduce:

(a) a mechanism to compensate
concerned from public funds; or

the

undertaking(s)

(b) a mechanism for the sharing of the net cost of the
service obligations between providers of

universal
services and/or users.

4. Where the net cost is shared in accordance with para-
graph 3(b), Member States may establish a compensation
fund which may be funded by service providers and/or
users' fees, and is administered for this purpose by a body
independent of
the beneficiary or beneficiaries. Member
States may make the granting of authorisations to service
providers under Article 9(2) subject to an obligation to
make a financial contribution to that fund or to comply
with universal service obligations. The universal service
obligations of the universal service provider(s) set out in
Article 3 may be financed in this manner.

5. Member States shall ensure that
the principles of
transparency, non-discrimination and proportionality are
respected in establishing the compensation fund and when
fixing the level of the financial contributions referred to in
paragraphs 3 and 4. Decisions taken in accordance with
paragraphs 3 and 4 shall be based on objective and verifi-
able criteria and be made public.

Member States shall notify the Commission, of how the
information to be published in accordance with the first
paragraph is to be made available.’;

(*) OJ L 134, 30.4.2004, p. 1. Directive as last amended by
Council Directive 2006/97/EC (OJ L 363, 20.12.2006,
p. 107).’;

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9. the heading of Chapter 4 shall be replaced by the following:

‘Conditions governing the provision of postal services
and access to the network’;

10. Article 9 shall be replaced by the following:

‘Article 9

1.
the
For services which fall outside the scope of
universal service, Member States may introduce general
authorisations to the extent necessary to guarantee compli-
ance with the essential requirements.

2.
the
For services which fall within the scope of
universal service, Member States may introduce authorisa-
tion procedures, including individual licences, to the extent
necessary in order to guarantee compliance with the essen-
tial
the
requirements and to ensure the provision of
universal service.

and

The

obligations

procedures,

3.
requirements
referred to in paragraphs 1 and 2 shall be transparent,
accessible, non-discriminatory, proportionate, precise and
unambiguous, made public in advance and based on objec-
tive criteria. Member States shall ensure that the reasons for
refusing or withdrawing an authorisation in whole or in
part are communicated to the applicant and shall establish
an appeal procedure.’;

11. paragraph 1 of Article 10 shall be replaced by the

following:

‘1.
The European Parliament and the Council, acting on
a proposal from the Commission and on the basis of Arti-
cles 47(2), 55 and 95 of
the
measures necessary for the harmonisation of the proce-
dures referred to in Article 9 governing the commercial
provision of postal services to the public.’;

the Treaty, shall adopt

12. Article 11 shall be replaced by the following:

The granting of authorisations may:

‘Article 11

— be made subject to universal service obligations,

— if

and

necessary

requirements
concerning the quality, availability and performance of
the relevant services,

justified,

impose

— where appropriate, be subject to an obligation to make
a financial contribution to the sharing mechanisms
referred to in Article 7, if the provision of the universal
service entails a net cost and represents an unfair
burden on the universal service provider(s), designated
in accordance with Article 4,

— where appropriate, be subject to an obligation to make
regulatory

a financial contribution to the national
authority's operational costs referred to in Article 22,

— where appropriate, be made subject to or impose an
obligation to respect working conditions laid down by
national legislation.

Obligations and requirements referred to in the first indent
and in Article 3 may only be imposed on designated
universal service providers.

Except in the case of undertakings that have been desig-
nated as universal service providers in accordance with
Article 4, authorisations may not:

— be limited in number,

— for the same elements of the universal service or parts
of the national territory, impose universal service obli-
gations and, at the same time, financial contributions to
a sharing mechanism,

— duplicate conditions which are applicable to undertak-
ings by virtue of other, non-sector-specific national
legislation,

— impose technical or operational conditions other than
those necessary to fulfil the obligations of this Directive.

The European Parliament and the Council, acting on a
from the Commission and on the basis of
proposal
Articles 47(2), 55 and 95 of the Treaty, shall adopt such
harmonisation measures as are necessary to ensure that
users and the postal service provider(s) have access to the
postal network under conditions which are transparent and
non-discriminatory.’;

13. the following Article shall be inserted:

‘Article 11a

Whenever necessary to protect the interest of users and/or
to promote effective competition, and in the light of
national conditions and national legislation, Member States
shall ensure that
transparent, non-discriminatory access
conditions are available to elements of postal infrastructure
the universal
or services provided within the scope of
service,
address database,
post office boxes, delivery boxes, information on change of
address, re-direction service and return to sender service.
This provision shall be without prejudice to the right of
Member States to adopt measures to ensure access to
the postal network under transparent, proportional and
non-discriminatory conditions.’;

such as postcode

system,

14. Article 12 shall be replaced by the following:

‘Article 12

Member States shall take steps to ensure that the tariffs for
each of the services forming part of the universal service
comply with the following principles:

— prices shall be affordable and must be such that all
users, independent of geographical location, and, in the
light of specific national conditions, have access to the
services provided. Member States may maintain or
introduce the provision of a free postal service for the
use of blind and partially-sighted persons,

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— prices shall be cost-oriented and give incentives for an
efficient universal service provision. Whenever neces-
sary for reasons relating to the public interest, Member
States may decide that a uniform tariff shall be applied,
throughout their national territory and/or cross-border,
to services provided at single piece tariff and to other
postal items,

— the application of a uniform tariff shall not exclude the
right of the universal service provider(s) to conclude
individual agreements on prices with users,

— tariffs shall be transparent and non-discriminatory,

— whenever universal

for

for

services

example

service providers apply special
tariffs,
for businesses,
from different
bulk mailers or consolidators of mail
users, they shall apply the principles of transparency
and non-discrimination with regard both to the tariffs
and to the associated conditions. The tariffs, together
with the associated conditions, shall apply equally both
as between different third parties and as between third
parties and universal service providers supplying equiva-
lent services. Any such tariffs shall also be available to
individual users and small and
users,
similar
medium-sized enterprises, who post under
conditions.’;

in particular

15. Article 14 shall be amended as follows:

(a) paragraphs 1, 2 and 3 shall be replaced by the

following:

‘1. Member States shall take the measures necessary
to ensure that the accounting of the universal service
providers is conducted in accordance with the provi-
sions of this Article.

The universal service provider(s) shall keep sepa-
2.
rate accounts within their internal accounting systems
in order to clearly distinguish between each of
the
services and products which are part of the universal
service and those which are not. This accounting
separation shall be used as an input when Member
States calculate the net cost of the universal service.
Such internal accounting systems shall operate on the
basis of consistently applied and objectively justifiable
cost accounting principles.

3.
The accounting systems referred to in paragraph 2
shall, without prejudice to paragraph 4, allocate costs in
the following manner:

(a) costs which can be directly assigned to a particular

service or product shall be so assigned;

(b) common costs,

is costs which cannot be
directly assigned to a particular service or product,
shall be allocated as follows:

that

(i) whenever possible, common costs shall be allo-
cated on the basis of direct analysis of
the
origin of the costs themselves;

(ii) when direct analysis is not possible, common
cost categories shall be allocated on the basis
of an indirect linkage to another cost category
or group of cost categories for which a direct
assignment or
the
indirect linkage shall be based on comparable
cost structures;

allocation is possible;

(iii) when neither direct nor indirect measures of
cost allocation can be found, the cost category
shall be allocated on the basis of a general allo-
cator computed by using the ratio of all
expenses directly or indirectly assigned or allo-
cated, on the one hand, to each of the universal
services and, on the other hand, to the other
services;

(iv) common costs, which are necessary

for
the provision of both universal services and
non-universal services, shall be allocated appro-
priately; the same cost drivers must be applied
to both universal services and non-universal
services.’;

(b) paragraph 8 shall be replaced by the following:

‘8. Where a given Member State has not used a
financing mechanism for the provision of the universal
service, as permitted under Article 7, and where the
national regulatory authority is satisfied that none of
the designated universal
in that
Member State is in receipt of State assistance, hidden or
otherwise, and that competition in the market is fully
effective, the national regulatory authority may decide
not to apply the requirements of this Article.’;

service providers

(c) the following paragraphs shall be added:

‘9.
This Article may, however, be applied to the
universal service provider designated before the final
date for Full Market Opening as long as no other
universal service provider(s) have been designated. The
national regulatory authority shall inform the Commis-
sion in advance of any such decision.

10. Member States may require those postal service
providers which are obliged to contribute to a compen-
sation fund to introduce an appropriate accounting
separation to ensure the functioning of the fund.’;

16. Article 16 shall be amended as follows:

(a) the second indent of

the third paragraph shall be

replaced by the following:

‘— the European Parliament and the Council

in the
case of intra-Community cross-border services (see
Annex II). Future adjustment of these standards to
technical progress or market developments shall be
made in accordance with the regulatory procedure
with scrutiny referred to in Article 21(2).’;

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(b) the fourth paragraph shall be replaced by the following:

‘Independent performance monitoring shall be carried
out at least once a year by external bodies having no
links with the universal service providers under standar-
dised conditions to be specified in accordance with the
regulatory procedure with scrutiny referred to in
reports
Article 21(2) and shall be the subject of
published at least once a year.’;

17. paragraphs 1 and 2 of Article 18 shall be replaced by the

following:

‘1.
In accordance with Article 16, quality standards for
intra-Community cross-border services are laid down in
Annex II.

2. Where exceptional situations relating to infrastructure
or geography so require, the national regulatory authorities
may determine exemptions from the quality standards
provided for in Annex II. Where national regulatory autho-
they shall
rities determine exemptions in this manner,
notify the Commission forthwith. The Commission shall
submit an annual
the notifications received
during the previous 12 months to the Committee referred
to in Article 21 for its information.’;

report of

18. Article 19 shall be replaced by the following:

‘Article 19

1. Member States shall ensure that transparent, simple
and inexpensive procedures are made available by all
service providers for dealing with postal users'
postal
complaints, particularly in cases
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),
international and national
without prejudice to relevant
provisions on compensation schemes.

involving loss,

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.

Member States shall also encourage the development of
independent out-of-court schemes for the resolution of
disputes between postal service providers and users.

2. Without prejudice to other possibilities of appeal or
means of redress under national and Community legisla-
tion, Member States shall ensure that users, acting individu-
ally or, where permitted by national law, jointly with orga-
nisations representing the interests of users and/or consu-
mers, may bring before the competent national authority
cases where users' complaints to undertakings providing
postal services within the scope of the universal service
have not been satisfactorily resolved.

In accordance with Article 16, Member States shall ensure
that the universal service providers and, wherever appro-

priate, undertakings providing services within the scope of
the universal service, publish,
together with the annual
report on the monitoring of their performance, information
on the number of complaints and the manner in which
they have been dealt with.’;

19. Article 21 shall be replaced by the following:

‘Article 21

1.

The Commission shall be assisted by a committee.

reference
to (4)

is made
paragraph,
2. Where
Articles 5a(1)
and Article 7 of Decision
1999/468/EC shall apply, having regard to the provisions
of Article 8 thereof.’;

this

to

20. Article 22 shall be replaced by the following:

‘Article 22

1.
Each Member State shall designate one or more
national regulatory authorities for the postal sector that are
legally separate from and operationally independent of the
postal operators. Member States that retain ownership or
control of postal service providers shall ensure effective
structural
from
activities associated with ownership or control.

the regulatory functions

separation of

Member States shall inform the Commission which national
regulatory authorities they have designated to carry out the
tasks arising from this Directive. They shall publish the
tasks to be undertaken by national regulatory authorities in
an easily accessible form, in particular where those tasks
are assigned to more than one body. Member States shall
ensure, where appropriate, consultation and cooperation
between those authorities and national authorities entrusted
with the implementation of competition law and consumer
protection law on matters of common interest.

The national regulatory authorities shall have as a par-
2.
task ensuring compliance with the obligations
ticular
arising from this Directive,
in particular by establishing
monitoring and regulatory procedures to ensure the provi-
sion of the universal service. They may also be charged
with ensuring compliance with competition rules in the
postal sector.

The national regulatory authorities shall work in close colla-
boration and shall provide mutual assistance in order to
facilitate the application of this Directive within the appro-
priate existing bodies.

3. Member States shall ensure that effective mechanisms
exist at national
level under which any user or postal
service provider affected by a decision of a national regula-
tory authority has the right to appeal against the decision
the parties
to an appeal body which is independent of
involved. Pending the outcome of any such appeal, the deci-
sion of the national regulatory authority shall stand, unless
the appeal body decides otherwise.’;

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21. the following Chapter shall be inserted:

24. Articles 24, 25, 26 and 27 shall be deleted;

‘CHAPTER 9a

Provision of information

Article 22a

1. Member States shall ensure that postal service provi-
ders provide all
to the
national regulatory authorities, including financial informa-
tion and information concerning the provision of
the
universal service, namely for the following purposes:

the information,

in particular

(a) for national regulatory authorities to ensure conformity
with the provisions of, or decisions made in accordance
with this Directive;

(b) for clearly defined statistical purposes.

2.
Postal service providers shall provide such informa-
tion promptly on request and in confidence, where neces-
sary, within the timescales and to the level of detail required
by the national
regulatory authority. The information
requested by the national regulatory authority shall be
proportionate to the performance of its tasks. The national
regulatory authority shall give the reasons justifying its
request for information.

3. Member States shall ensure that national regulatory
authorities provide the Commission, upon request, with
appropriate and relevant information necessary for it to
carry out its tasks under this Directive.

4. Where information is considered confidential by a
in accordance with Com-
national regulatory authority,
munity and national business confidentiality rules,
the
authorities
regulatory
Commission and the national
concerned shall preserve such confidentiality.’;

22. Article 23 shall be replaced by the following:

‘Article 23

than
Every four years, on the first occasion no later
31 December 2013, the Commission shall submit a report
to the European Parliament and the Council on the applica-
tion of this Directive, including appropriate information on
developments
concerning
economic, social, employment patterns and technological
aspects, as well as on quality of service. The report shall be
accompanied, where appropriate, by proposals
to the
European Parliament and the Council.’;

sector, particularly

in the

23. the following Article shall be inserted:

‘Article 23a

The Commission shall provide assistance to the Member
States on the implementation of this Directive, including on
the calculation of any net cost of the universal service.’;

25. the following text shall be inserted as Annex I:

‘ANNEX I

Guidance on calculating the net cost,
universal service

if any, of

Part A: Definition of the universal service obligations

refer

service obligations

Universal
to the obligations
referred to in Article 3 placed upon a postal service
provider by a Member State which concern the provision of
a postal service throughout a specified geographical area,
including, where required, uniform prices in that geogra-
phical area for the provision of that service or provision of
certain free services for blind and partially-sighted persons.

Those obligations may
following:

include,

among others,

the

— a number of days of delivery, superior to those set in

this Directive,

— accessibility to access points,
universal service obligations,

in order to satisfy the

— the tariffs affordability of the universal service,

— uniform prices for universal service,

— the provision of certain free services for blind and

partially-sighted persons.

Part B: Calculation of net cost

National regulatory authorities are to consider all
means to ensure appropriate incentives for postal
service providers
to provide
universal service obligations cost efficiently.

(designated or not)

The net cost of universal service obligations is any cost
related to and necessary for the operation of the universal
service provision. The net cost of universal service obliga-
tions is to be calculated, as the difference between the net
cost for a designated universal service provider of operating
with the universal service obligations and the same postal
service provider operating without
the universal service
obligations.

The calculation shall take into account all other relevant
elements,
including any intangible and market benefits
which accrue to a postal service provider designated to
provide universal service, the entitlement to a reasonable
profit and incentives for cost efficiency.

Due attention is to be given to correctly assessing the costs
that any designated universal service provider would have
chosen to avoid, had there been no universal service obliga-
tion. The net cost calculation should assess the benefits,
including intangible benefits,
service
operator.

to the universal

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The calculation is to be based upon the costs attributable
to:

26. the Annex shall become Annex II.

(i) elements of the identified services which can only be
provided at a loss or provided under cost conditions
falling outside normal commercial standards. This cate-
gory may include service elements such as the services
defined in Part A;

(ii) specific users or groups of users who,

taking into
account the cost of providing the specified service, the
revenue generated and any uniform prices imposed by
the Member State, can only be served at a loss or under
cost conditions falling outside normal commercial stan-
dards.

Article 2

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 December 2010 at the latest. They shall forth-
with inform the Commission thereof.

When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States

This category includes those users or groups of users that
would not be served by a commercial operator that did not
have an obligation to provide universal service.

2. Member States shall communicate to the Commission the
text of their laws, regulations and administrative provisions with
regard to the application of this Directive.

The calculation of
the net cost of specific aspects of
universal service obligations is to be made separately and
so as to avoid the double counting of any direct or indirect
benefits and costs. The overall net cost of universal service
obligations to any designated universal service provider is
to be calculated as the sum of the net costs arising from
the specific components of universal service obligations,
taking account of any intangible benefits. The responsibility
for verifying the net cost lies with the national regulatory
authority. The universal service provider(s) shall cooperate
with the national regulatory authority to enable it to verify
the net cost.

Part C: Recovery of any net costs of universal service obligations

The recovery or financing of any net costs of universal
service obligations may require designated universal service
they
providers to be compensated for the services that
provide under non-commercial
such
compensation involves financial transfers, Member States
have to ensure that they are undertaken in an objective,
transparent, non-discriminatory and proportionate manner.
This means that the transfers result as far as possible in the
least distortion to competition and to user demand.

conditions. As

A sharing mechanism based on a fund referred to in
and neutral
Article 7(4)
a
should use
mechanism for collecting contributions
that avoids a
double imposition of contributions falling on both outputs
and inputs of undertakings.

transparent

Article 3

By derogation to Article 2, the following Member States
1.
may postpone the implementation of
this Directive until
31 December 2012, in order to continue to reserve services to
universal service provider(s):

— Czech Republic

— Greece

— Cyprus

— Latvia

— Lithuania

— Luxembourg

— Hungary

— Malta

— Poland

— Romania

— Slovakia

These Member States may decide to implement this Directive at
an earlier stage.

The independent body administering the fund is to be
responsible for collecting contributions from undertakings,
which are assessed as liable to contribute to the net cost of
universal service obligations in the Member State and is to
oversee the transfer of sums due to the undertakings
entitled to receive payments from the fund.’;

2.
The relevant Member States shall notify the Commission
confirming their intention to make use of the implementation
delay set out in paragraph 1 by … (*).

(*) Six months after the date of entry into force of this Directive.

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3. Member States
reserved areas by
that abolish their
31 December 2012 may, between 1 January 2011 and
31 December 2012, refuse to grant the authorisation provided
for in Article 9(2) of Directive 97/67/EC for services within the
abolished reserved area
in question to postal operators
providing services within the scope of the universal service, as
well as companies controlled by them, which are granted a
reserved area in another Member State.

Article 5

This Directive is addressed to the Member States.

Done at …, …

Article 4

For the European Parliament

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.

The President

…

For the Council

The President

…

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. The Commission adopted its proposal for a Directive of the European Parliament and of the Council
amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Com-
munity postal services on 18 October 2006. (1) The proposal is based on Articles 47(2), 55 and 95
of the Treaty.

2. The European Parliament adopted its First-Reading Opinion at its 9 July to 12 July 2007 plenary

session.

In carrying out its work, the Council also took account of the opinions of the Economic and Social
Committee and the Committee of the Regions adopted on 26 April and 6 June 2007 respectively (2).

3. On 8 November 2007, the Council adopted its common position in accordance with Article 251 of

the Treaty.

II. OBJECTIVES

The proposal for the amending Directive aims to set the ‘last step’ towards Full Market Opening (FMO)
by removing all remaining exclusive or special rights in force for (a) universal service provider(s) and all
other obstacles to the postal services provision, as foreseen by the current Postal Services Directive
97/67/EC (as amended by Directive 2002/39/EC). In accordance with the timetable established in its
Article 7 and on the basis of several studies and a thorough Impact Assessment, the Commission
confirmed that 1 January 2009 would be the final date for the full accomplishment of the postal
services internal market. The amending provisions seek to adapt the regulatory framework to the new
environment, whilst ensuring the universal service provision and its appropriate financing by suggesting
a non-exhaustive list of indicative accompanying measures. Upon entry into force of the new Directive,
the ‘sunset clause’ included in the 2002 Directive (3) would be deleted (Article 1 (point 24), recital 55),
thereby ensuring legal continuity beyond the expiration of the current Directive (31 December 2008).

III. ANALYSIS OF THE COMMON POSITION

1. GENERAL

In its 11 July 2007 Plenary, the European Parliament (EP) adopted 64 amendments to the Commission
proposal. The Council common position reflects changes to the Commission proposal
(see below
under 2(a)) by incorporating a considerable number of amendments,

— either verbatim or almost verbatim (EP amendments 1, 2, 3, 4, 8, 9, 12, 14, 16, 17, 18, 25, 36, 37,

39, 49, 50, 53, 61, 79),

— in part (EP amendments 10, 13, 20, 31, 46, 47, 48, 56, 58), or

— in spirit, by means of similar wording (EP amendments 21 + 65, 22 + 34, 23, 28, 30, 32, 35, 63,

40, 44 + 81, 46, 52, 55).

However, a few amendments are not reflected in the common position because the Council agreed that
they were either redundant (as they are covered by other modifications) or because provisions from the
original Commission proposal were completed or thoroughly redrafted (see below under 2(b).

(1) COM(2006) 594 final, OJ C …
(2) OJ C 168, 20.7.2007, p. 74.
OJ C 197, 24.8.2007, p. 37.

(3) Article 27 sets out that, unless otherwise decided, the provisions of the existing Directive shall expire on 31 December

2008.

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The common position also includes changes other than those envisaged in the European Parliament's
First — Reading opinion. A number of drafting changes have been introduced, mostly as a consequence
of:

— the insertion of a new Annex I (Guidance on calculating the net cost, if any, of universal service)
and the appearance of the existing Annex (Quality of standards for intra-Community cross-border
mail) as Annex II to the amending Directive (Article 1, points 16, 17 and 25), and

— the introduction of new terms into the definitions (in Article 1 (point 2) and its further impact on

the terminology used throughout the text (e.g. Article 1 (point 18)).

Others seek to ensure the Directive's overall coherence, in particular with respect to:

— the notification of a/the universal service provider(s) to the Commission (Article 1, point 4),

— accountancy separation and transparency rules (Article 1, point 15, in conjunction with recital 41),

and

— the new rules on the ‘comitology’ procedure which are to be applied (regulatory procedure with

scrutiny, Article 1 (point 16, 19), recitals 43-46), and

— the Inter-institutional agreement on better law-making (recital 60, on which the Commission made

a statement).

2. SPECIFIC ISSUES

(a) Changes to the Commission's proposal

The fundamental modification to the Commission's original proposal regards the final date for Full
Market Opening. It sets (in Article 2) the end of 2010 as the final date for the amending Directive's
implementation that is the full accomplishment of the postal services internal market. An implementa-
tion delay until 31 December 2012 is provided under strict conditions for certain Member States (listed
in Article 3 of the Directive) which seeks to meet particular difficulties with regard to the postal sector
reform process (see below under (x)).

All the above led to a number of other substantial changes to the original proposal (they can be identi-
fied under the amending Directive's Article 1), which could be summarized as follows:

(i) Rationale and Scope (Article 1 (point 1), Recitals 1-9, 14-15, 19-20, 22, 56)

Relevant European Parliament amendments: 1-4, 8-9, 11-12, 13, 16

The common position confirms the ultimate goals and the rationale of the Community postal policy
and highlights the positive role of postal services as services of general economic interest as well as their
contribution to the objectives of social, economic and territorial cohesion in the EU. It mainly clarifies
the Directive's scope with regard to the universal service provision, by considering its financing under
conditions that guarantee its permanent provision as a key objective of postal reform. This acknowledg-
ment is enshrined in the text and can be used as a guiding principle for the implementation of the
amending Directive.

(ii) Definitions (Article 1 (point 2), Recitals 17, 27, 42)

Relevant European Parliament amendments: 15, 21 + 65, 36-37

The common position seeks to update and adapt a significant number of definitions included in the
existing Directive to the regulatory changes and new circumstances in the postal markets. The
newly inserted term ‘postal service provider’ and its distinction with the ‘universal service provider’, as well as
the re-definition of ‘user’, are pivotal and seek to clarify the roles and responsibilities of each of these in
a FMO context. In addition, the common position identifies the key elements qualifying the ‘services
falling within the scope of the universal service’ in accordance with the European Court of Justice relevant
case law and includes in the list of ‘essential requirements’ (which can induce a Member State to impose
conditions on the supply of postal services), respect for the terms and conditions of employment as
well as social security provisions, in accordance with Community and national law. This is in line with
the political importance that social considerations maintain within the FMO process.

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(iii) Universal service provision (Article 1 (points 3-6), Recitals 5, 8-12, 20-21, 23-24, 27-30, 36-37,

40-41, 46, 54)

Relevant European Parliament amendments: 4, 6, 13-14, 17-18, 24-27, 32, 39, 43, 62 + 64, 63

The common position is based on the principle that universal service provision is a key element for the
accomplishment of the postal services' internal market and plays a paramount role in terms of social
and territorial cohesion. Against this background, the text aims at strengthening the existing Directive's
provisions and safeguarding its swift implementation in the new FMO context. It permits Member States
a certain flexibility in the designation and operation of the (a) universal service provider(s), whilst on
the other hand, ensuring a periodic review of their conformity with the statutory principles set out in
the Directive as well as a sufficient period for return on investments.

Furthermore, it makes clear that (a) universal service provider(s) shall provide sufficiently detailed and
up-to-date information regarding the particular features of the universal service offered, including the
general conditions of access to these services, as well as to prices and quality standard levels. Finally, the
common position excludes from the amending Directive's scope the national provisions governing the
expropriation conditions for organising the universal service provision and acknowledges that the conti-
nuing supply of certain free services for blind and partially-sighted persons introduced by the Member
States should not be curtailed.

(iv) Financing of universal services (Article 1 (points 7-8 and 25), Recitals 13, 25-30, 33, 40-41,

59)

Relevant European Parliament amendments: 4, 6, 20, 21 + 65, 22, 24, 29-30, 40, 41 + 66, 62 + 64

The common position, based on the principles enshrined in the Commission's proposal, devotes par-
ticular attention to the means of guaranteeing the universal service financing. The Council agrees in
general on the means proposed by the Commission, as they are fully in line with the subsidiarity prin-
ciple and devote attention to national market conditions. Member States may choose an appropriate
enabling measure for that purpose, depending on the specific national market characteristics. In order
to meet concerns expressed by some Member States with regard to the net cost calculation and to
ensure guidance on the basis of an indicative common methodology, the common position introduced
a new Annex to the Directive. This is largely inspired by Annex IV to the Universal Service Directive (1).

(v) Conditions governing the provision of postal services and the access to the networks (Article 1

(points 9-13), Recitals 30, 33)

Relevant European Parliament amendments: 44 + 81

The common position sets out further detailed conditions governing the provision of postal services
and the access to the networks with the dual aim of providing legal certainty for (a) universal service
provider(s) and other postal service provider(s), as well as avoiding these being used as concealed
barriers to new market entrants. The overall objective is the proper functioning of postal markets and
the complementary functioning of different postal networks. The Directive's provisions are without
prejudice to the right of Member States to adopt measures to ensure access to the postal network under
the conditions of transparency, proportionality and non-discrimination.

The common position includes, where appropriate, among the conditions for granting authorisations,
the possible financial contribution to the national regulatory authority operational costs and the respect
of working conditions established by national legislation. Clarification is also provided as regards the
exclusion of a ‘double’ imposition (for the same elements of universal service or parts of the national
territory) of universal service obligations and, at the same time, of financial contributions to a sharing
mechanism (compensation fund).

(1) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users'

rights relating to electronic communications networks and services (OJ L 108, 24.4.2002, p. 51 (73)).

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(vi) Employment and social security provisions (Article 1 (points 2 and 10), Recitals 16, 53)

Relevant European Parliament amendments: 10, 35, 37

As developed above (under ii), the common position includes in the list of ‘essential requirements’, respect
for the terms and conditions of employment as well as social security provisions, in accordance with
Community and national
law. Furthermore, social considerations are addressed in the provisions
regarding the conditions for granting authorisations, whereby it may, where appropriate, be made subject
to or impose the respect of working conditions laid down by national legislation (see also under (v)).

(vii) Tariff principles and transparency of accounts (accounting separation) (Article 1 (points 14-15),

Recitals 26, 28, 37-39, 41)

Relevant European Parliament amendments: 27-28, 30, 47-49, 50-52, 79

The common position accepts the basic innovations contained in the Commission proposal with regard
to the different tariff principles for universal service provision (cost-orientation principle, notwith-
standing a certain degree of
it allows
Member States to maintain or introduce the provision of a free postal service for the use of blind and
partially-sighted persons.

flexibility under specific conditions). Furthermore,

tariff

The/a universal service provider(s) is/are obliged to keep separate accounts in order to clearly distinguish
between universal services and other services which are not part of it. Specific provisions allow Member
States to apply the transparency rules (set out in Article 1, point 15) to the universal service provider
designated before the FMO final date, as long as no other universal service provider(s) have been desig-
nated.

(viii) National regulatory authorities and information provision (Article 1 (points 20-21), Reci-

tals 41-42, 47-51)

Relevant European Parliament amendments: 18, 33, 55

The common position leaves no doubt about the form of co-operation between the national regulatory
authorities, thereby excluding the establishment of new bodies or structures at European level.

National regulatory authorities are focused on postal markets monitoring,
including by appropriate
information provision by all market players. The general principles governing the information provision
and the respect for confidentiality rules are adequately addressed in the text.

(ix) The Commission's assistance in the Directive's implementation (Article 1 (points 22-23), Reci-

tals 32, 52)

Relevant European Parliament amendments: 22, 34, 56-58

The Commission assumes enhanced responsibilities in the new FMO environment, as it is entrusted
with the general task of providing assistance during the new Directive's implementation, including on
the calculation of any universal service net cost and on evaluating, on a regular basis, all relevant devel-
opments, particularly concerning economic, social, employment patterns and technological aspects, as
well as in quality of service.

(x) Final date(s) for Full Market Opening (Articles 2 and 3, Recitals 25, 31, 55)

Relevant European Parliament amendments: 7 + 74, 19, 23, 41 + 66 as well as 59, 61, 62 + 64

With regard to the final date(s) for the accomplishment of the Community postal services internal
market, the Council took into serious consideration the approach enshrined in the relevant European
Parliament amendments. The European Parliament considered that the Commission's proposed final
date of 1 January 2009 was not proven appropriate and suggested therefore a Full Market Opening of
the postal sector from 31 December 2010. In addition, it proposed that Member States that acceded to
the EU after the entry into force of Directive 2002/39/EC or Member States with a small population
and limited geographical size, or Member States with a particularly difficult topography, especially those
with a considerable (‘huge’) number of islands, may continue, until 31 December 2012, to reserve
services to (a) universal service provider(s) within certain limits and conditions.

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The common position lists a number of Member States which have explicitly requested a maximal
implementation delay till 31 December 2012 at the latest. Such a notification shall be addressed to the
Commission, without impeding them from terminating it at an earlier stage. For those Member States
wishing to apply the above implementation delay, a reciprocity clause towards Member States that
opened up their postal markets completely shall apply for a limited time-period.

(b) European Parliament amendments

The Council moreover considered a number of amendments, even though maintaining a different posi-
tion in that respect. In some cases, their acknowledgment however becomes clear from a combined
reading of different provisions. In particular,

Recitals:

— Amendment 6 is not accepted, since the prospective study is one of the elements considered by the
European Parliament and the Council as a basis for their agreement on the basic aim of the
amending Directive (see also recital 13),

— Amendments 7 and 74 have been modified in recital 13, where one specific date is not precisely
mentioned, but the idea of a final date for the accomplishment of the internal market for postal
services is clearly confirmed,

— Amendment 11 was considered redundant, as it is sufficiently addressed in recitals 14 and 18,

— Amendment 13 is not fully accepted, as part of it due to its normative character was considered as

inappropriate for a recital and is better reflected in Article 1 (point 18),

— Amendment 15 has become now part of the wider definition of ‘user’ (in Article 1, point 2),

— Amendment 19 is addressed in the core provisions of the common position; it becomes clear, in

particular from a combined reading of the amending Article 2 and recital 13,

— Amendment 22 has been taken into serious consideration and a new specific Article has been intro-

duced to that purpose into the common position (Article 1, point 23),

— Amendment 24 is considered as unnecessary, as the underlying issue is dealt with in the general
principles governing the universal service scope (N.B.: The Commission will also make a relevant
statement on the Council's common position),

— Amendment 26: The Council considered that the most appropriate place for this amendment to
provide some legal effect would be within its main provisions; therefore, the idea is now considered
in Article 12 (Article 1, point 14),

— Amendment 27 was considered as too detailed and prescriptive; Article 12 provisions instead
comprise all necessary clarification about the conditions justifying price flexibility and the public
interest reasons allowing uniform tariffs; recital 38 provides significant examples for the latter case,

— Amendment 29 was not supported, as the deleted general statement should remain valid throughout

the FMO process. However, the Council agreed with the related EP amendment 30,

— Amendment 31 was adapted to the general principles set out in Article 1 (point 18),

— on Amendment 32 the Council maintains its position with respect to the composition of the Postal

Committee,

— on Amendment 33, the Council supports the Commission proposal and considers that the co-opera-
tion between national regulatory authorities, other regulatory bodies and the Commission shall be
under the specific conditions set out in Article 22 (Article 1, point 20).

Articles:

— with regard to Amendments 41 and 66, the Council supports a consistent approach to the financing
of universal services; the text of the Commission proposal has been considerably improved, in order
to better reflect the different means and ways for guaranteeing its permanent provision. In addition,
a new Annex I on the net cost calculation provides an indicative common basis. Member States may
provide the Commission with their financing plans as indicated in recital 26,

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— Amendments 62 and 64 have constituted the basis for the derogation set out now in Article 3 of
the amending Directive; however, the general and unconditional derogation for all Member States
that acceded to the EU after the entry into force of the last postal Directive 2002/39/EC has been
substituted by a precise list of Member States that have explicitly requested such a derogation,

— Amendment 43 gave rise to concerns and scepticism within the Council, and therefore, the Council
agreed to maintain the text of the existing Directive, on the additional grounds that its practice was
not so far put into question,

— with regard to Amendments 44 and 81, the Council undertook a thorough examination and
re-drafting of the Article dealing with authorisation issues with the ultimate goal of eliminating any
obstacles to the unhindered provision of postal services. Regarding the precise references to services
falling within the scope of universal service, the Council agreed to maintain the existing provisions
and the Commission made a statement thereon. In addition, it has to be noted that the question of
the respect for working conditions is appropriately addressed in other parts of the common position
(as presented under 2(a)(vi)),

— Amendment 46 is currently addressed partly in recital 35 and partly in Article 1 (point 13),

— Amendment 51 was considered as a superfluous reference to another amending provision of the

same Directive,

— Amendment 54 was not accepted by the Council, as being out of the scope of this amending Direc-

tive and not in line with the subsidiarity principle,

— Amendment 56 was supported by the Council, although it agreed on the first report being issued
no later than 31 December 2013 (instead of 31 December 2011), in order for it to provide a thor-
ough overview of the Directive's implementation in all Member States, including those benefiting
from an implementation delay by the end of 2012,

— Amendment 57 is covered by Article 1 (point 22); the Commission shall provide a thorough

analysis of employment trends in the postal sector in its regular report,

— Amendment's 58 objective was carefully taken into consideration in the Council common position
(Article 1 (point 23)); however, the limitations in time are not taken on board, as the Commission's
assistance on the Directive's implementation is to be understood as a general task and a continuous
exercise throughout the Directive's implementation. In addition, the Council strongly supports the
position that it should not be compulsory for all Member States to submit their financing plans to
the Commission (recital 26),

— finally, Amendment 59 is no longer consistent with the overall transposition time-table, as set out

in the common position.

IV. CONCLUSIONS

The common position is largely and extensively based on the European Parliament First Reading
opinion and reflects the overall balance achieved at the informal negotiations between the European
Parliament, the Council and the Commission with a view to concluding an early agreement at the stage
of second reading in the European Parliament. The text maintains the approach and the legal architec-
ture proposed by the Commission (and based on the current Directive 97/67/EC, as amended) with a
view to adapting the regulation of the postal sector to the new conditions pertaining to the full accom-
plishment of the internal market by the end of 2010. It provides a certain number of Member States
with the possibility of requesting a derogation (by 31 December 2012, at the latest) with regard to the
implementation date of the new Directive, in order to meet particular structural needs of their national
postal markets.

Against this background, important clarifications and re-adjustments have been made in particular, to
the relevant definitions of the proposal, the guarantees for the universal service provision, including its
financing, the authorisation regime, the role of the national authorities and the information provision
by all postal service providers.

The Council looks forward to the confirmation by the European Parliament of its agreement on the
common position with a view to an early adoption of this Directive.