Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 28th Congress of the Universal Postal Union
Date: 2025-09-10
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: EU relations, Universal Postal Union, customs regulations, exchange of information, international convention, international organisation, postal service

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   EUROPEAN COMMISSION  Brussels, 10.9.2025  COM(2025) 506 final 2025/0284 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 28th Congress of the Universal Postal Union  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
by Member States in the 28th Congress of the Universal Postal Union (hereafter referred as 
UPU)  in  connection  with  a  report  of  the  UPU  Council  of  Administration  that  the  Congress 
will take note of and its Annex I which contains an interpretation which considers an EU Act 
as  incompatible  with  UPU  rules  as  well  as  proposals  relating  to  security  and  customs 
submitted to Congress (proposals 9 and 15). These proposals also relate to further work of the 
bodies of the UPU (Council of Administration, Postal Operations Council) in the Dubai cycle 
and possible changes to the UPU legal Acts (Constitution, Convention) to be proposed at the 
29th Universal Congress in 2029. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Universal Postal Union  

The  Universal  Postal  Union  Convention  (hereafter  UPU  Convention)  aims  to  regulate 
international  mail  exchanges  and  standardise  and  facilitate  the  relevant  procedures  and 
charges.  The  Agreement  entered  into  force  in  1874  and  established  the  Universal  Postal 
Union. In 1948, the UPU became a specialized agency of the United Nations. The Universal 
Postal  Union  is  the  global  representative  body  which  coordinates  postal  policies  among 
member countries and facilitates a uniform worldwide postal system. 

While the EU is not a Member of the UPU, all its Member States are members. However, the 
European  Union's  position  as  a  formal  observer  (represented  by  the  European  Commission) 
was agreed at the 2012 Congress in Doha1. 

2.2. 

The UPU Congress 

The  Congress  of  the  UPU  is  the  supreme  authority  of  the  Postal  Union  and  consists  of 
plenipotentiary  representatives  of  its  member  countries.  It  meets,  in  principle,  every  four 
years. The Congress exercises all the powers coming within the scope of the UPU which have 
not  been  expressly  entrusted  to  another  body  by  the  Acts  of  the  Union.  These  include  the 
power to amend the Constitution of the UPU, the Universal Postal Convention and the Special 
agreements. The Congress can also adopt resolutions, decisions, recommendations and formal 
opinions, which together make up the Decisions of Congress. 

2.3. 

The envisaged act of the UPU Congress 

At the 28th Congress of the UPU it is proposed that the report prepared by the UPU Council 
of Administration be taken note of and that approval  be granted  for a proposal  of a general 
nature relating to the further work in developing the customs policy and regulatory framework 
(proposal  9).  Furthermore,  another  proposal  (proposal  15)  has  been  tabled  by  the  United 
States of America which contains elements related to transport security and customs. Further 
work of the bodies of the UPU will be undertaken based on these proposals in the Dubai cycle 
and  possibly  modifications  to  the  Acts  (Constitution,  Convention)  may  be  proposed  for  the 
29th Universal Postal Congress in 2029. 

The  purpose  of  proposal  9  is  to  address  the  concerns  expressed  by  certain  UPU  member 
countries through the UPU secretariat  about  a potential contradiction  of  the  Union Customs 

1 

Council Document 9341/12 of 8 May 2012; Resolution C 78 of the  Universal Postal Congress (Doha 
2012). 

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Code2  with  the  UPU  Acts  with  regards  to  the  provisions  regulating  the  exchange  and 
collection of the electronic advance data i.e. in the context of the EU in relation to the entry 
summary notifications (ENS) provisions.    

Those  member  countries  seek  to  make  a  legal  distinction  between  ‘transit/transhipment’  on 
the  one  hand  and  ‘import’  (i.e.  goods  with  final  destination  in  the  EU)  on  the  other  hand, 
implying that the UCC and its Electronic Advance Data (EAD) requirements supported by the 
Import Control System 2 (ICS2) is "legally valid/applicable" only for import. These members 
have insisted that the principle of "Freedom of Transit" as enshrined in Article 1 of the UPU 
Constitution is thus considered to be infringed/violated by virtue of the legal requirements of 
the UCC for the submission  of ENS into ICS2, specifically Article 113(a)(2)  and (4) of the 
UCC Delegated Act3. 

At the 4th Extraordinary Congress of the UPU held in Riyadh in 2023, following on from a 
discussion  on  the  challenges  posed  to  UPU  designated  operators  by  the  requirements  of 
electronic advance data regulatory regimes, a taskforce was established to analyse the legal, 
operational,  regulatory  and  technical  issues  associated  with  emerging  customs  and  security 
requirements in relation to the EAD, in particular focusing on the European Union’s measures 
under the ICS2. 

The task force was assisted by the legal adviser of the UPU International Bureau (UPU IB), 
which has conducted its own legal assessment of the potential impact of the EU measures on, 
and consistency with,  the fundamental  principles of a single postal  territory and freedom  of 
transit  under  the  UPU  Acts  (in  particular  the  principles  of  non-discrimination  between 
domestic and international items). 

The UPU IB legal adviser’s legal assessment opines that the EU’s EAD requirements (in the 
form  of  the  ENS),  specifically  those  which  concern  goods  which  are  never  intended  to  be 
imported,  but  rather  move  through  the  EU,  are  in  contradiction  with  these  fundamental 
principles.  The  argument  put  forward  is  that  the  UCC  provisions  discriminate  against  the 
treatment of the international postal items as compared with the domestic items in the context 
of these ‘transit movements’, by requesting postal operators in third countries to lodge ENS 
for packages sent via the EU, whilst exempting from that obligation packages sent by a postal 
operator in the EU to another Member State, Norway or Switzerland.  

Proposal 15, submitted by the United States of America, concerns the commencement of work 
to enhance the implementation, enhancement and update of the standards and protocols within 
the UPU related to dangerous and prohibited goods in order to enhance transport safety and 
security  as  well  as  combating  the  utilisation  of  international  mail  flows  for  the  transport  of 
dangerous and prohibited items.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The subject matter of the proposals to be presented at the forthcoming Universal Postal Union 
(UPU)  Congress  falls  firmly  under  the  exclusive  competency  of  the  European  Union.  All 
Member States apply the same customs tariff and rules. The Union customs legislation (UCC) 
establishes important customs security measures aimed to ensure that customs administrations 
are  able  to  address  the  risks  to  the  security  and  safety  of  the  Union  and  its  residents  or  to 

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Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying 
down the Union Customs Code (OJ L 269, 10.10.2013, p. 1 
Commission  Delegated  Regulation  (EU)  2015/2446  of  28  July  2015  supplementing  Regulation  (EU) 
No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain 
provisions of the Union Customs Code 

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transport supply chains before the goods enter the Union customs territory. This is supported 
by the new ICS2 and EAD, which needs to be provided to customs authorities via the ICS2 by 
the trade operators, including postal operators. Hence, there is the need to establish one single 
position with respect to the report prepared by the UPU IB and which puts into question the 
compatibility of the EU measures with respect to the UPU Convention.  

These measures are consistent with the international rules and standards developed under the 
World  Customs  Organisation  (WCO),  International  Civil  Aviation  organisation  (ICAO)  as 
well as the UPU frameworks. 

It has been the consistent position of the European Commission and Member States that the 
UCC provisions regarding the lodgement of the ENS to perform anticipated risk analysis for 
safety  and  security  purposes  in  case  of  transit/transhipment  do  not  violate  the  principle  of 
“freedom of transit” as enshrined in Article 1 of the UPU. The fact that postal consignments 
under  the  UPU  Convention  are  transiting  in  the  EU  customs  territory  and,  therefore,  are 
subject  to  customs  supervision  and  may  be  subject  to  customs  controls  does  not  mean  that 
they are not “free” to transit.   

Moreover,  “freedom  of  transit”  under  the  UPU  Acts  does  not  mean  that  the  customs 
supervision or customs control rules do not apply to this movement of goods. The UCC does 
not  provide  any  exemption  from  customs  controls  and  customs  supervision  (respective 
definitions  in  Article  5  (3)  and  (27) of  the  UCC),  which  must  be  performed  to  ensure 
compliance  with  the  customs  legislation  and  other  legislations  governing  all  types  of 
movement of the goods.  

Furthermore,  “freedom  of  transit”  is  not  an  absolute  principle.  Article  8  of  the  UPU 
Convention  imposes  that  the  Member  countries  and  their  designated  operators  adopt  and 
implement a proactive security strategy at all levels of postal operations to maintain the safe 
and  secure  transport  and  transit  of  mail  between  them.  Transit  is  not,  therefore,  excluded 
under the UPU Convention when applying security  measures. That,  under their perspective, 
consists of maintaining  and enhancing  the general  public's confidence in the postal  services 
provided by designated operators. In addition, there is no evidence that in the UPU there has 
ever been the understanding that "freedom of transit" or "single postal territory" "expressly" 
(art. 23) limits the sovereign right of member countries to legislate appropriate customs and 
security controls for the import, export, or transit of postal goods. 

Finally, there is no discrimination between third country and EU postal operators. Although 
the  European  Union  is  not  a  member  of  the  UPU,  its  common  customs  policy  is  a 
fundamental  reality  accepted  by  all  UPU  parties  in  the  WTO,  WCO  or  bilateral  trade 
relations.  The  Union’s  Internal  Market  and  Customs  Union  implies  that  related  regulations 
and requirements previously applied between its Member States have been eliminated on the 
basis  of  the  introduction  of  common  requirements  applicable  at  the  external  border  of  the 
European  Union.  The  electronic  advance  data  (EAD)  requirements  imposed  by  the  Union 
Customs  Code  implementation  of  the  ICS2  system  for  the  protection  of  safety  and  security 
apply to all incoming goods without exception. This is a requirement established by EU law, 
that has to be complied with without exception. The distinction between EU Member States 
and  third  countries  is  justified  because  of  the  harmonised  controls  established  at  EU  level. 
Therefore, EU Member States and third countries are not in the same regulatory situation.  

The  enhancement  of  the  standards  and  protocols  of  the  UPU  pertaining  to  the  provision  of 
EAD for the purposes of safety and security is a welcome initiative.  

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Given  the  fact  that  the  EU  is  not  a  member  of  the  UPU  in  its  own  right  and  that  it  is  the 
Member  States  of  the  EU  who  hold  membership  of  the  UPU,  there  is  an  obligation  for 
Member States to act jointly in the interest of the Union. 

It is the intention of this Council Decision that Member States have a co-ordinated position to 
assert  that  the  EU  customs  security  measures  under  the  UCC  are  compatible  with  the  UPU 
acts,  and  their  fundamental  principles,  and  that  the  EU  and  its  Member  States  support  the 
continued work to address practical and operational issues related to EAD requirements, while 
at the same time ensuring adherence to the ENS requirements of the EU. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement4. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’5. 

4.1.2.  Application to the present case 

The UPU Congress is a body set up by an agreement, namely the UPU Convention. 

The report which the UPU Congress is called upon to approve constitutes an act having legal 
effects,  as  the  envisaged  act  contains  legal  interpretations  according  to  which  certain  EU 
legislation adopted under the UCC are incompatible with the UPU Convention. Adoption of 
such a report could therefore decisively influence EU legislation. 

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's  behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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4.2.2.  Application to the present case 

The  envisaged  act  pursues  objectives  and  has  components  in  the  area  of  customs 
cooperation  in  the  framework  of  the  customs  Union,  the  common  commercial  policy  and 
the internal market. These elements of the envisaged act are inseparably linked without one 
being incidental to the other. 

Therefore, the substantive legal basis of the proposed decision is Article 33 of the TFEU. 

4.3 Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  33,  in  conjunction  with  Article 
218(9) TFEU. 

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2025/0284 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the 28th Congress of the 
Universal Postal Union 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 33, 114 and 207, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

The UPU Convention (‘the Agreement’) entered  into force in 1874. The EU is not a 
member of the UPU, whereas all EU Member States are parties to the UPU. 

By  means  of  Regulation  (EU)  No  952/2013  (the  Code)  together  with  Commission 
Delegated  Regulation  (EU)  2015/2446,  the  Union  ensures  security  and  safety  at  its 
external  borders  by  requiring  the  submission  of  certain  electronic  data  on  all  goods 
entering  the  customs  territory  of  the  Union,  including  goods  in  postal  consignments 
(electronic advanced data). This requirement is justified to mitigate the potential threat 
to  the  transport  supply  chains,  security  and  safety  of  the  Union  and  its  residents,  to 
human, animal or plant health, to the environment or to consumers. 

Pursuant to Articles 10(3), 13, 14(2), 16, 18 and 19(2) of the UPU Rules of Procedure 
for Congress, the UPU may take note of and approve proposals submitted, specifically 
in this instance in Committee 3 of the UPU Congress.  
The 28th Congress of the UPU is called upon to take note of a report containing a legal 
opinion  written  by  a  member  of  the  UPU  Secretariat,  which  calls  into  question  the 
compatibility  of  the  Union’s  legislative  framework  on  electronic  advanced  data  with 
certain  principles  enshrined  in  the  UPU  constitution  as  well  as  the  internationally 
established legal nature of the customs Union. Furthermore, the 28th UPU Congress is 
called  to  approve  a  resolution  in  the  form  of  a  proposal  of  a  general  guidance 
(Proposal 9) the intention of which is to use this report and legal opinion as a basis for 
continuation of work on reviewing customs regulatory issues. 
The 28th Congress of the UPU is also to examine a proposal submitted by the United 
States of America to  orientate the work  of the  UPU Policy Cycle and the associated 
working groups and committees towards the enhancement and expansion of the UPU 
standards, guidance and implementation related to transport safety and security and the 
combatting of dangerous and prohibited goods in international mail. 

It is appropriate therefore to establish the position to be taken on the Union's behalf in 
the  28th  UPU  Congress,  to  preserve  the  Union  and  its  Member  States’  rights  and 
interests. 

It should be therefore ensured that a co-ordinated position is to be taken by Member 
States  to  actively  support  the  compatibility  of  the  Union’s  legislative  framework 

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regarding the safety and security requirements for goods entering the customs territory 
of the Union with the UPU Constitution and Acts.  

(8) 

As  the  EU  is  not  a  Member  of  UPU,  the  Union's  position  is  to  be  expressed  by  the 
Member States of the Union that are members of the UPU Congress, acting jointly, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf at the 28th Congress of the Universal Postal 
Union is set out in the Addendum to this Decision 

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the UPU Congress, acting jointly. 

Article 2 

Article 3 

This Decision shall enter into force on the day of its adoption. 

This Decision is addressed to the Member States. 

Done at Brussels, 

For the Council 
The President 

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ANNEX 
Position to be taken by the Member States on behalf of the European Union within the 
Universal Postal Union 28th Congress on customs requirements for electronic advanced 
information. 

Congress-Doc 42 
Item on the agenda 1: Congress is called to take note of the report (report §§ 1 to 20 and 
Annexes 1 and 2) 
The Union position on this point to the agenda shall be to vote against the taking note of the 
report. 
In doing so, they shall disagree with the assessment made by the legal adviser regarding the 
compatibility of the Union’s legislative provisions for the submission of EAD.   

Member  States  should  emphasise  that  there  is  full  consistency  of  the  EU  customs  security 
requirements with the UPU acts and fundamental principles.  

Member  States  should  highlight  the  specificities of  the  EU’s  internal  market  and  detail  that 
controls at internal borders within the EU were abolished and that the EU should be treated, 
from postal as well as customs and security point of view, as a single entity. It should also be 
highlighted that the Kingdom of Norway and the Swiss Confederation have agreed to  apply 
the same security and safety measures in force in the EU, including being part of ICS2, and 
therefore trade between these countries and the EU is exempt from the requirement to lodge 
entry and exit summary declarations. 

Member States should note that the UPU principles of the single postal territory and freedom 
of  transit  are  not  absolute  and  unqualified  obligations,  that  would  override  any  other  public 
policy objectives including safety and security. 

Item  on  the  agenda  2:  Congress  is  called  to  approve  the  proposal  of  a  general  nature 
relating to the further work in developing the customs policy and regulatory framework 
(proposal 9 of the Report): 
The Union position shall be to continue to express commitment to actively support the work 
during  the  next  policy  cycle  and  declare  a  readiness  to  engage  in  addressing  practical  and 
operational  implementation  issues  with  regards  to  the  ICS2  processes  impacting  third 
countries postal operators, whilst continuing to fully observe and defend the EU requirements. 

Member States should continue to  state their objection to  the inclusion in  Proposal  9 of the 
legal assessment of the  member of the UPU secretariat  which is disputed by the EU and its 
Member States for its wholly inaccurate classification of the EU’s EAD requirements as being 
contrary to the UPU Constitution and its legal acts.  Member States should aim to amend, at 
the 28th UPU Congress, the disputed instruction with a view to remove the reference of this 
legal assessment to serve as a basis of further review of the custom's regulatory issues. 

In  the  case  Proposal  9  would  be  adopted  without  appropriate  change  to  the  disputed 
paragraph, Member States should express their disagreement in writing to the UPU Congress, 
the UPU International Bureau and the UPU Council of Administration.  

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Position to be taken  with respect to  the  Proposal 15 submitted by the United States of 
America 

Member States should  take note of the proposal  submitted by the United States  of  America 
and indicate their support for the general principles contained within the proposal.  

Member States should indicate their willingness to discuss the specific work streams proposed 
by  the  United  States  of  America  within  the  context  of  ensuring  the  safety  and  security  of 
goods within the international mail, without creating an overly burdensome entry procedure or 
imposing  any  obligations  on  designated  postal  operators  in  excess  of  those  applied  to  other 
stakeholders in the supply chain.  

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