Abstract
This paper looks at the complex and disputed provision of the Postal Services Directive dealing with authorizations in the postal sector (Article 9) and obligations that may be imposed on postal service providers against the recent and pending judgments of the Court of Justice, which are progressively clarifying its wording, context and objectives. In particular, it will assess the implications of the most recent DHL Express (Austria) judgment for the other two cases that are pending in this field.
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Notes
- 1.
Directive 97/67/EC 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, OJ L 15, 21.1.1998, p. 14, as last amended by Directive 2008/6/EC of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 52, 27.2.2008, p. 3.
- 2.
Judgment of 16 November 2016, Case C-2/15, DHL Express (Austria) GmbH v Post-Control-Kommission and Bundesminister für Verkehr, Innovation und Technologie, EU:C:2016:880.
- 3.
Judgment of 13 October 2011, Case C-148/10, DHL International NV, formerly Express Line NV v Belgisch Instituut voor Postdiensten en Telecommunicatie, EU:C:2011:654.
- 4.
Judgment, cit., § 32.
- 5.
Judgment of 15 June 2017, Case C-368/15, Ilves Jakelu Oy v Ministry of Transport and Communications, EU:C:2017:462. The judgment was issued following the presentation of this paper.
- 6.
Joined Cases C-259/16 and C-260/16, Confetra and others.
- 7.
Opinion delivered on 16 March 2016, Case C-2/15, DHL Express (Austria), ECLI:EU:C:2016:168.
- 8.
Ibidem.
- 9.
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, OJ L 15, 21.1.1998.
- 10.
Recital 24.
- 11.
Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services, OJ L 176, 05.07.2002.
- 12.
Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 52, 27.02.2008.
- 13.
Opinion of Advocate General Mengozzi, § 28.
- 14.
Opinion of Advocate General Mengozzi, §27.
- 15.
For completeness, the referring court also asked the following questions, were the first question to be answered in the affirmative:
“(a) Is it sufficient for a financing obligation to exist that the provider concerned provides postal services which are to be classified under the national rules as universal services, but which go beyond the mandatory minimum range of universal services under the directive?
(b) When determining an undertaking’s share of the financial contributions, is one to proceed in the same way as when determining the financial contributions to the compensation fund under Article 7(4) of the directive?
(c) Do the requirement to respect the principles of non-discrimination and proportionality within the meaning of Article 7(5) of the directive and the “taking account of inter-changeability with the universal service” within the meaning of recital 27 of Directive 2008/6 … then mean that shares of turnover which are attributed to value-added services, hence postal services not assignable to the universal service but which are connected with the universal service, are excluded and are not taken into account when determining the share?”.
- 16.
Opinion, §22.
- 17.
Judgment, §19.
- 18.
See Opinion, §§21-22-29; Judgment, §§26-27.
- 19.
Judgement, §22.
- 20.
Durviaux, Ann L., “Le marché intérieur des services postaux (Bréve présentation de la directive 2008/Ce du Parlement et du Conseil du 20 février 2008 modifiant la directive 97/67/CE en ce qui concerne l’achévement du marché intérieur des services postaux de la Communauté)”, European Journal of Consumer 3/2007–2008: 386–400.
- 21.
Ibidem, §26.
- 22.
Opinion of Advocate General Mengozzi, §33.
- 23.
Judgment, §25.
- 24.
For an example of interchangeable services, see Commission decision No 2016/C 284/01 (Compensation of Poczta Polska for the net cost of USO 2013–2015), OJ L 284 of 05/08/2015: these services include “letter items and postal parcels with weight and dimensions defined for universal services and items for the blind, not provided by the operator designated to provide universal services subject to the obligation to provide universal services” (§10).
- 25.
Ibidem, §27.
- 26.
Ibidem, §§29-31.
- 27.
Opinion of Advocate General Mengozzi, §40.
- 28.
Friboulet, Amadis “Parlement européen et Conseil: Directive 2008/6/CE du 20 février 2008 modifiant la directive 97/67/CE en ce qui concerne l’achévement du marché intérieur des services postaux de la Communauté”, Revue trimestrielle de droit euroéen 2/2009: 381–401.
- 29.
Ibidem, §§ 42-43.
- 30.
“1. Member States shall ensure that transparent, simple and inexpensive procedures are made available by all postal services providers for dealing with postal users’ complaints, particularly in cases involving loss, theft, damage or non-compliance with service quality standards (including procedures for determining where responsibility lies in cases where more than one operator is involved), without prejudice to relevant international and national provisions on compensation schemes. 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 services providers and users.
2. Without prejudice to other possibilities of appeal or means of redress under national and Community legislation, Member States shall ensure that users, acting individually or, where permitted by national law, jointly with organizations representing the interests of users and/or consumers, 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 appropriate, 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”.
- 31.
Judgment of 13 October 2011, Case C-148/10, DHL International NV, formerly Express Line NV v Belgisch Instituut voor Postdiensten en Telecommunicatie, EU:C:2011:654, §§18-22.
- 32.
Judgment of 11 March 2004, Case C-240/02, Asempre and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería, ECLI:EU:C:2004:140, § 30.
- 33.
Judgment of 13 October 2011, Case C-148/10, DHL International NV, formerly Express Line NV v Belgisch Instituut voor Postdiensten en Telecommunicatie, EU:C:2011:654, §36.
- 34.
Article 19(1), third subparagraph, of the Postal Services Directive, as amended by the third Directive.
- 35.
Judgment, §51
- 36.
Opinion delivered on 26 May 2011, Case C-148/10, DHL International NV, ECLI:EU:C:2011:351, §59.
- 37.
According to the notice (OJ C311, 21.09.2015, p. 34), the Finnish judge referred the following four questions:
“1. In interpreting Article 9 of Postal Directive 97/67/EC, as amended by Directives 2002/39/EC and 2008/6/EC, is the distribution of postal items of contract customers to be considered a service outside the scope of the universal service under Article 9(1) or a service within the scope of the universal service under Article 9(2), where the postal undertaking agrees with its customers on the conditions governing delivery and charges them an individually agreed fee?
2. If the aforementioned distribution of postal items of contract customers involves a service outside the scope of the universal service, are Article 9(1) and Article 2(14) to be interpreted in such a way that the provision of such postal services, under circumstances such as those in the main proceedings, can be made subject to an individual license, as provided for in the Postal Act?
3. If the aforementioned distribution of postal items of contract customers involves a service outside the scope of the universal service, is Article 9(1) to be interpreted in such a way that an authorization concerning such services can be made subject only to terms intended to guarantee compliance with the essential requirements under Article 2(19) of the Postal Directive and that authorizations concerning such services cannot be made subject to any terms with respect to the quality, availability, or performance of the relevant services under Article 9(2) of the Directive?
4. If authorizations concerning the aforementioned distribution of postal items of contract customers can be made subject only to terms intended to guarantee compliance with the essential requirements, can terms such as those at issue in the main proceedings—which relate to the postal service’s conditions governing delivery, the frequency of distribution of items, change-of-address and delivery-suspension service, the labelling of items, and clearance locations—be considered consistent with the essential requirements under Article 2(19) and necessary in order to guarantee compliance with the essential requirements under Article 9(1)?”.
- 38.
Opinion of Advocate General Mengozzi delivered on 16 March 2016, Case C-2/15, DHL Express (Austria) GmbH v Post-Control-Kommission and Bundesminister für Verkehr, Innovation und Technologie EU:C:2016:168, §33.
- 39.
As expected, the Court confirmed its recent case-law in Ilves Jakelu Oy (Judgment of 15 June 2017), by ruling that Article 9(1) of Directive 97/67, as amended, must be interpreted to the effect that the provision of postal services not falling within the scope of the universal service may be made subject to compliance with requirements concerning the quality, availability and performance of the relevant services pursuant to Article 9(2), second subparagraph, second indent, of that directive.
- 40.
Judgment, § 25.
- 41.
Hatzopoulos, Vassilis “Authorizations under EU internal market rules”, Research Papers in Law, 424 College of Europe 5/2013.
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Fratini, A. (2018). DHL Express (Austria): Towards Legal Certainty on Article 9 and Applicable Obligations for Postal Service Providers. In: Parcu, P., Brennan, T., Glass, V. (eds) The Contribution of the Postal and Delivery Sector. Topics in Regulatory Economics and Policy. Springer, Cham. https://doi.org/10.1007/978-3-319-70672-6_4
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