REPORT on the draft notice from the Commission on the application of the competition rules to the postal sector and in particular on the assessment of certain State measures relating to postal services (SEC(95)0830 - C4-0551/95)

21 November 1996

Committee on Economic and Monetary Affairs and Industrial Policy
Rapporteur: Mr Georges de Brémond d'Ars

By letter of 22 November 1995 the Commission forwarded its draft notice on the application of the competition rules to the postal sector and in particular on the assessment of certain State measures relating to postal services to Parliament.

At the sitting of 11 December 1995 the President of Parliament announced that he had referred the draft notice to the Committee on Economic and Monetary Affairs and Industrial Policy as the committee responsible, and to the 1Committee on Legal Affairs and Citizens' Rights and the Committee on Transport and Tourism for their opinions.

The Committee on Economic and Monetary Affairs and Industrial Policy appointed Mr Georges de Brémond d'Ars rapporteur at its meeting of 18 December 1995.

It considered the Commission draft notice and the draft report at its meetings of 23 January, 20 February, 25 June, 3 October, 9 October and 20 November 1996.

At the last meeting it adopted the motion for a resolution by 27 votes to 22.

The following were present for the vote: von Wogau, chairman; Metten, Theonas and Katiforis, vicechairmen; de Brémond d'Ars, rapporteur; Areitio Toledo, Barton (for Billingham), Béres (for Caudron), Bowe (for García Arias), Cassidy, Christodoulou, Donnelly, Falkoner (for Harrison), Fourçans, Gallagher, García-Margallo, Garosci, Gasoliba i Böhm, Glante, Haug (for Miller), Hautala, Herman, Hoppenstedt, Imaz San Miguel, Kestelijn-Sierens, Kuckelkorn, Langen, Larive, Lindqvist, Lukas, Mezzaroma, Murphy, Paasilina, Peijs, Pérez Royo, Randzio-Plath, Rapkay, Read, Rübig, Secchi, Siso Cruellas (for Friedrich), Soltwedel-Schäfer, Tappin (for Moscovici), Torres Marques, Van Velzen (for Lulling), Väyrynen (for Riis-Jørgensen), Watson and Wibe (for Ruffolo).

The opinions of the Committee on Legal Affairs and Citizens' Rights and the Committee on Transport and Tourism are attached.

The report was tabled on 21 November 1996.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant partsession.

A MOTION FOR A RESOLUTION

Resolution on the draft notice from the Commission on the application of the competition rules to the postal sector and in particular on the assessment of certain State measures relating to postal services (SEC(95)0830 - C4-0551/95)

The European Parliament,

- having regard to the Commission draft notice on the application of the competition rules to the postal sector and in particular on the assessment of certain State measures relating to postal services SEC(95)0830 - C4-0551/95,

- having regard to its opinion, delivered at first reading on 9 May 1996, on the proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service[1],

- having regard to the conclusions on the draft communication on postal services adopted by the Telecommunications Council of 27 November 1995 (12025/95 (Presse 340-G)),

- having regard to its resolution of 25 October 1995 calling on the Commission to withdraw its draft communication on the rules of competition in the postal services sector[2],

- having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy and the opinions of the 1Committee on Legal Affairs and Citizens' Rights and the Committee on Transport and Tourism (A4-0388/96),

A. whereas a notice is a form of legal act not provided for in the Treaties and without any binding legal effect that is intended to explain and state the Commission's attitude towards the consequences of existing legislation resulting from the Treaty,

B. whereas the draft notice interferes with the proposal for a directive, and the adoption of a notice cannot be justified except in the prolonged absence of a Council common position,

C. whereas, as it now stands, the draft notice seems to include many contradictions and inconsistencies vis-à-vis the Commission proposal for a directive and more especially the amendments adopted by the European Parliament at first reading,

D. whereas any notice should not conflict but be compatible in every respect with the European Parliament and Council directive whose content cannot at present be prejudged,

E. whereas adoption by the Commission of its draft notice in December would be premature and unjustified failing completion of the draft directive procedure,

F. whereas if it is in effect a matter of urgency to find a Community solution to the problems of postal services in Europe, the Commission became aware of this necessity only recently despite the requests made by Parliament since 1988 (report by Mrs Braun-Moser, OJ C 12/88 of 16 January 1989, pp. 55-69; report by Mr Simpson on the Green Paper, OJ C 42/93, p. 240; OJ C 194 of 1993, p. 397; OJ C 315 of 1993, p. 643) and the Council which in September 1989 and 7 February 1994 (OJ C 48, 16 February 1994, p. 3) called on the Commission to draw up proposals for integrating these services into the internal market,

1. Considers that the Commission should provisionally withdraw its draft notice, especially as it contains many contradictions and inconsistencies vis-à-vis the Commission proposal for a directive and more especially the amendments adopted by the European Parliament - by a large majority - at first reading;

2. Points out that the applicability of competition rules to the postal sector has been confirmed by the European Court of Justice in Luxembourg;

3. Is of the opinion that the Commission should, as it did in its communication on the telecommunications sector, include a statement in the draft notice that the provisions do not constitute rights or obligations but are merely declaratory in the opinion of the Commission and therefore that the notice itself can neither create rights or obligations in addition to those contained in the proposal for a directive nor prejudice implementation and interpretation by the Court of Justice of the European Communities of the Community rules of competition;

4. Is of the opinion, however, that the final objective must be kept clearly in sight, namely the creation of a harmonized and, to a large extent, liberalized postal market guaranteeing an affordable, high-quality service to all citizens;

5. Insists that the Council take a decision as quickly as possible on the proposal for a directive on common rules for the development of Community postal services and the improvement of quality of service;

6. Instructs its President to forward this resolution to the Commission and the Council.

• [1] () OJ C 152, 27.5.1996, p. 20
• [2] () OJ C 308, 20.11, 1996, p. 60

B. EXPLANATORY STATEMENT

BACKGROUND

In December 1995 two Commission texts published in the Official Journal of 2 December 1995 were referred to the European Parliament:

- firstly a Commission proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service (COM(95)0227),

- secondly a draft notice from the Commission on the application of the competition rules to the postal sector and in particular on the assessment of certain State measures relating to postal services (SEC(95)0830).

The European Parliament expressed its opinion on the first text at first reading on 9 May 1996 on the basis of the report by the committee responsible, the Committee on Transport (Simpson report, A4-0105/96). On 30 September 1996 the Council still had not taken a decision on the text and is to reconsider it on 28 November.

The Legal Affairs Committee delivered its opinion on the second text, which is the subject of this report and for which our committee is responsible, on 4 June 1996 (opinion of Mr Cot, PE 215.666/fin.) and the Committee on Transport delivered its opinion on 24 July 1996 (opinion of Mr Ferber, PE 218.092/fin.).

The two opinions more or less tally and in the main concentrate on the legal nature and advisability of the draft notice. The Committee on Transport calls for the withdrawal pure and simple of the draft notice, which is what distinguishes it most from the opinion of the Legal Affairs Committee. Both committees however favour suspension of the draft notice until completion of the procedure for adopting the directive. Both committees suggest that we take up their conclusions.

Even before the draft Commission communication on the application of the competition rules to the postal sector (SEC(95)0830) was published on 2 December 1995, the European Parliament had taken a stance in its resolution of 25 October 1995 against publication of the proposed draft, of which it had been informed. The Telecommunications Council of 27 November 1995 also expressed serious reservations about the advisability of the notice. Finally, the Commission has merely published a draft and not a notice as such and has undertaken not to publish the notice before the end of 1996, refusing to withdraw it but agreeing to consider changes.

INTRODUCTION

The simultaneous publication, with texts inconsistent with each other, of a proposal for a directive and a draft notice on the same subject is unprecedented.

As the Legal Affairs Committee says, a notice is a form of legal instrument not provided for in the Treaties and without any binding legal effect but that is intended to explain and state the Commission's attitude towards the consequences of existing legislation resulting from the Treaties; no notice is mentioned in Article 189 of the Treaty relating to the different legislative procedures, nor is it mentioned in Article 90(3). The proposal for a directive therefore takes precedence over the Commission notice where any basic differences exist between the two texts.

It is strange that there should be such a difference between two official documents issued by the Commission since it is precisely the Commission's task to ensure that Community legislation is consistent. The European Parliament cannot accept and should not tolerate such a departure which could well circumvent the obligation to consult Parliament and the Council under the codecision procedure applicable for proposals based on Article 100A and could constitute an unacceptable precedent for Parliament.

ADVISABILITY OF TWO TEXTS:

In its general communication introducing the proposal for a directive on common rules for the development of Community postal services and the improvement of quality of service, the Commission states in paragraph 3 that 'the proposed directive and the draft "notice" (strange and unusual terminology for a draft communication) are complementary to each other' and later that 'the proposed directive will provide for a harmonized regulatory framework at Community level for the postal sector'. In paragraph 5 it also states that 'the notice aims at establishing a clear and reliable framework with regard to the future application of the competition rules, which can, at this stage, be considered sufficient for provision of the degree of legal certainty necessary for a smooth development of the sector'. This statement raises doubts as to the Commission's desire to see the proposal for a directive adopted rapidly and this is confirmed by its rejection of most of the amendments adopted by Parliament at first reading, which would suggest that it gives precedence to its draft notice.

Any ambiguity about the legal value of the notice should be removed if it is to be published before the European Parliament and Council directive is finally adopted.

As Mr Cot, draftsman of the Legal Affairs Committee's opinion, states in his explanatory statement (paragraphs 2.1 and 2.2) the notice should logically be published after final adoption of the directive and contain a statement, as does the communication on the telecommunications sector, to the effect that the provisions therein do not constitute rights or obligations other than those appearing in the proposal for a directive, nor do they prejudice implementation and interpretation of Community competition rules by the Court of Justice of the European Communities.

On the other hand, the Commission justifies its notice on the basis of judgments by the Court of Justice of the European Communities, particularly the Corbeau judgment (Case C-320/91, ECR 1993, p. I-2563) on postal services which interprets various points of Article 90 of the Treaty. Although this may justify submitting the postal services to competition, the Commission's interpretation departs from the conclusions of the judgment in which 'the Court accepts that competition may be excluded in certain sectors in order to allow the operator responsible (of a service of general economic interest) to ensure the economic and financial equilibrium of his undertaking. None the less, the exclusion of competition is not justified where specific services, dissociable from the service of general interest, which meet the special needs of economic operators and, call for certain additional services not offered by the public service, are at issue (Court of Justice Report of Proceedings 1992-1994).

DIFFERENCES IN SUBSTANCE BETWEEN THE TWO TEXTS:

Apart from the duplication involved, the draft notice conflicts with the proposal for a directive on several points.

There are many examples of such contradictions, differences and shortcomings between the two texts. For instance the French version of the directive refers to 'objets postaux' and of the notice to 'envois postaux' [Translator's note: this comment does not seem to apply to the English version[ and point 4.5 of the draft notice states that the collection, sorting, transport and distribution of mail will be totally open to competition whereas this is not stated in the directive, which provides for a reserved sector.

The Commission also states in its report on the public consultation it organized (paragraph 6) that the definitions contained in the directive and the draft notice will normally be identical. How could this be so if the draft were adopted in December before the foreseeable conclusion of the codecision procedure for the directive whose provisions cannot be prejudged?

In its report the Commission implicitly recognizes that it could not adopt its draft notice before adoption of the directive since by definition it could not ensure that the definitions were identical in the absence of the text adopted by the Parliament and Council. Your rapporteur therefore proposes to follow the Commission's commonsense approach.

CONCLUSION:

The wildcat competition occurring in this sector makes it necessary to regulate postal services, but what would be the point of adopting a draft notice that would have every chance of being contradicted by the directive and the Commission?

The length of time (six years) it has taken the Commission to draw up its proposals and drafts cannot today justify excessive haste in adopting a text which, far from regulating competition problems in the postal sector, would merely complicate them.

Efforts must be made to speed up the procedure for adopting the directive so that once it is completed the advisability and possible content of a notice can be determined.

OPINION

(Rule 147 of the Rules of Procedure)

of the Committee on Legal Affairs and Citizens' Rights

for the Committee on Economic and Monetary Affairs and Industrial Policy

Draftsman: Jean-Pierre Cot

At its meeting of 24 January 1996 the Committee on Legal Affairs and Citizens' Rights appointed Mr Cot draftsman.

At its meetings of 18 March 1996, 23 April 1996 and 4 June 1996 it considered the draft opinion and adopted the opinions as a whole by 10 votes to 1 with 1 abstention.

The following were present for the vote: Casini, chairman; Cot, draftsman; Anastassopoulos, Florio, McIntosh, D. Martin, Medina Ortega, Oddy, Schaffner, Ullmann, Wijsenbeek and Zimmermann.

1. Background

At the December 1995 part-session Parliament was consulted on a package of measures for the development of postal services in the European Community. They take the form of a proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service[1] - which was referred to the same draftsman for an opinion (PE 215.660/fin.) - together with the present draft notice from the Commission on the application of the competition rules to the postal sector and in particular on the assessment of certain state measures relating to postal services[2].

The Telecommunications Council discussed the package on 27 November 1995 and adopted a set of conclusions[3] which referred specifically to the relationship between the proposed directive and the draft notice in the following terms:

- OBSERVES that the Notice envisaged by the Commission is not in itself binding but is a document in which it announces the guidelines it intends to follow in applying the Treaty's competition rules to the postal sector;

- REQUESTS the Commission, in any follow-up to its draft Notice, to take the utmost account of the Council's comments, especially on the need to ensure, for the sake of transparency and legal certainty, that:

- the definitions and concepts used in the Notice, in the proposal for a Directive or in other relevant Community provisions are consistent with one another;

- the notice is published in the Official Journal at the same time as the Directive and in any case before the end of 1996;

2. The relationship between the draft notice and the proposed directive

2.1. The notice is a type of act that is not laid down in the Treaties and has no binding power. The Commission has used this kind of act on occasion for subjects on which it proposes to exercise a discretional power on a case-by-case basis, and specifically in the area of its responsibilities for monitoring Community rules on competition.

A relatively recent precedent for this kind of act is the communication on 'Guidelines on the application of EEC competition rules in the telecommunications sector'[4] which dealt primarily with the application of Articles 85 and 86 of the EC Treaty to undertakings in the sector.

The general principles introducing the liberalization of certain services and parts of the telecommunications market were regulated in two previous directives based on Article 90(3) of the Treaty[5].

In its communication the Commission regards competition law as an autonomous area applicable independently of the substantive law regulating the sector, Directive 90/387/EEC on the establishment of the internal market for telecommunications services through the implementation of open network provision[6]. The Directive was adopted under Article 100a of the Treaty.

However, it is worth pointing out that the above communication, unlike the draft notice on postal services, contained a statement on the purpose of the guidelines, which says in paragraph 10 that they do not create enforceable rights nor do they prejudice the application of EC competition rules by the Court of Justice of the European Communities.

In paragraph 11 the Commission reserved the right to amend the guidelines in the light of future legal, economic or technological developments.

Provided they are reviewed from time to time, communications of this kind do serve a useful purpose. The application and interpretation by the Court of Community competition rules is an evolving process and depends largely - as case law has shown - on rapid structural change in the sector concerned, as a result of technological progress and the constant demand by consumers for new services.

There is no doubt that an act of this kind, the communication, can be of great practical and informative value to the Member States and economic agents who are interested, as a way of preventing infringement of Community competition rules. But such rules cannot be interpreted in isolation. They must be seen in conjunction with the derived law governing the sector in question, on the basis of Court of Justice case law. In view of the evolving nature of such case law, communications should be subject to periodic review.

2.2. The proposed directive on common rules for the development of Community postal services and the improvement of quality of service (COM(95)0227) and the present draft notice were published simultaneously, which does not appear either logical or consistent from a legal point of view.

The draft notice is based on an analysis of the same principles and provisions contained in the proposed directive. Be that as it may, the Community legislator has the option to amend, extend or restrict the content or scope of such principles and provisions, within the margin for manoeuvre provided by the legal basis of the proposal and the codecision procedure. For this reason publication of the draft notice ought to have been delayed until after final adoption of the draft directive.

2.3. The provisions of the draft directive form a harmonized Community framework. Under the principle of subsidiarity on which Community law is founded, it is up to the Member States to take such measures as they see fit and select the arrangements which best suit their particular situation within that framework.

The proposal sets out a series of rules which differ widely in scope. While most of its rules are of a general nature, some of them taking the form of simple statements of principle, it should be noted that the draft notice on the postal sector includes provisions of a marked regulatory nature addressed to the Member States, concerning the conduct they should observe in the provision of certain services. In some cases these provisions reflect a gap in the proposed directive.

To take a concrete example, point 3 of the draft notice examines the restrictions which may be maintained in the provision of certain trans-frontier postal services by Member States which have granted special or exclusive rights to certain operators.

Such restrictions may be justified in some conditions in view of the imperative nature of certain needs or 'essential requirements'. In the section dealing with definitions (point 1) the draft notice defines such essential requirements as non-economic reasons in the general interest which may cause a Member State to subject the provision of postal services to specific mandatory conditions, such as public decency, the surveillance of possible criminal activities and, in some cases, data protection.

Distribution and transport may also be restricted, in the context of legal or administrative proceedings connected with the exercise of official authority, under the exceptions which the Treaty makes to the free provision of services (Article 66 in conjunction with Articles 55 and 56). The provision of such services on the territory of a Member State may accordingly be subject to the requirement of authorization to protect the public interest.

The proposed directive does not contain any definition of 'essential requirements' or of postal items connected with the exercise of official authority; nor does it contain any clear provision on the scope of such restrictions.

The draft notice forms a rather unusual instrument for interpreting the provisions of the proposed directive, especially in areas where the proposal is short on explanation or ambiguously worded.

The consequences of review of the reserved sector, to which passing reference is made in Article 8(3), can only be understood in accordance with the provisions in the relevant sections of the draft notice, namely:

- that the review will include the general weight and tariff limits for postal items whose collection, transport and distribution have been 'reserved' by means of special or exclusive rights to certain providers of services (paragraph 5.2., second subparagraph);

- that the 'necessary restructuring' of operators enjoying such rights must be completed by 1 January 2000 at the latest (paragraph 5.5). As the draft notice implies, such 'restructuring' will involve the abolition of all temporal restrictions which the future directive may allow the Member States, particularly concerning direct mail and inward cross-border mail. It will imply the total liberalization of any activities such as collection and transport which the Member States may have initially reserved to certain service providers.

3. Conclusions

The Committee on Legal Affairs and Citizens' Rights requests the Committee on Economic and Monetary Affairs and Industrial Policy to incorporate the following conclusions in its report:

1. Points out that the notice is a form of instrument not provided for in the Treaties and without any legally binding effect as such, but that it is intended to explain and state the Commission's attitude towards the consequences of existing legislation resulting from the Treaties. Steps must be taken to ensure that the notice does not introduce legal uncertainty concerning the law that is actually applicable;

2. Takes the view that the Commission should include in the draft notice a statement to the effect that the provisions therein do not constitute rights or obligations other than those appearing in the proposal for a directive, nor do they prejudice implementation and interpretation of Community competition rules by the Court of Justice of the European Communities;

3. Believes that when the Directive has been adopted the Commission should proceed to modify the draft notice in the light of the Directive's provisions, and that the objective of consistency must be extended to the definitions and time limits set out in both texts;

4. Wishes the Commission to draw more closely on the case law of the Court of Justice in the 'Corbeau' and 'Almelo' cases (C-320/91, [1993[ ECR I-2563, and C-393/92, [1994[ ECR I1477) when adopting the above texts;[7]

5. Considers that the Commission should suspend this draft until Parliament and the Council have adopted the proposal for a Directive on common rules for the development of Community postal services and the improvement of quality of service.

• [1] () COM(95)0227 - C4-0540/95 - 95/0221(COD).
• [2] () SEC(95)0830 - C4-0551/95.
• [3] () 12025/95 (Presse 340-G).
• [4] () OJ C 233, 6.9.1991, pp. 2-26.
• [5] () Directive 88/301/EEC, OJ L 131, 27.5.1988, p. 73, and Directive 30/388/EEC, OJ L 192, 24.7.1990, p. 10.
• [6] () OJ L 192, 24.7.1990, p. 1.
• [7] () See draftsman's opinion on the proposal for a Directive on common rules for the development of Community postal services and the improvement of quality of service, PE 215.660/fin.

OPINION

(Rule 147 of the Rules of Procedure)

of the Committee on Transport and Tourism

for the Committee on Economic and Monetary Affairs and Industrial Policy

Rapporteur: Mr Markus FERBER

At its meeting of 24-25 April 1996 the Committee on Transport and Tourism appointed Mr Markus Ferber rapporteur.

It considered the draft opinion at its meetings of 1-2 July and 22-24 July 1996.

At the last meeting it adopted the conclusions unanimously.

The following took part in the vote: Cornelissen, chairman; Ferber, rapporteur; Castricum; Dary; Donnay, (for Danesin); Farassino; Megahy; Miller, (for Piecyk); Schmidbauer; Simpson B.; Sisó Cruellas; Stenmarck; Stockmann; Tamino, (for van Dijk); van der Waal and Waidelich, (for Watts).

1.Introduction

In 1988[1] already, the European Parliament stressed the importance of postal services in the Community and adopted an important number of questions to the Commission and the Council as well as a large number of reports and resolutions on this subject[2].

Recently the European Parliament adopted at first reading the Commission's proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service[3].

In all these reports and resolutions the European Parliament had stressed that forthcoming legislation on European postal services relate to the establishment and functioning of the Single Market in postal services and should, therefore, be submitted under article 100A of the EU Treaty.

According to this position, the European Parliament should abstain from adopting an opinion on the Commission's draft "notice" on the application of the competition rules to the postal sector; indeed, such an opinion would be superfluous as this draft "notice" should not have been issued.

Furthermore, the notice contains a number of measures which could represent a danger to the proper implementation of the directive on the development of Community postal services, as adopted by the European Parliament on 9 May 1996.

Even before the first reading of the Directive on postal services, the European Parliament with a very large majority, had asked the Commission to withdraw its draft notice on competition rules[4], as it "exceeds by far the competencies of the Commission as they are defined in the Treaty"[5], although the draft notice was published as a package by the Commission in the same Official Journal as the directive on postal services[6].

2.Observations

It should be stressed, as a preliminary remark, that the European Parliament has never disputed the Commission's competence in the field of competition policy, as defined by the EU Treaty; the Committee on Transport and Tourism would welcome, under normal circumstances, the publication of this, albeit very unusual, "draft notice", aimed at clarifying the competition rules applicable to a given economic sector.

However, this does not seem to be the aim of the "draft notice" or its only aim. As it has already been pointed out, a number of questions and inconsistencies contained in this document give raise to some doubts concerning the following points:

- the legality of the "notice" vis à vis the directive on postal services and the EU Treaty provisions,

- the overstepping of competence by the Commission,

- the notice's disputable economic analysis and coherence,

- the Commission's underlying intentions.

The uncertainties concerning these four issues could be summarised as follows:

i) the "notice" counters the aims of the directive, a text endorsed by the Commission. Several of key principles of the "notice" counter or contradict measures and objectives pursued by the Commission in the directive and, if adopted, would destabilise the markets and be counterproductive towards the achievement of a unified market in postal services. Legal security and economic visibility would hence not be guaranteed,

ii) the "notice" interprets secondary legislation which should only be applied once the overriding principle of the directive, i.e. the development of a Single Market in postal services based on a functioning universal service, has been implemented. Only then should the Commission be able to, in function of given new market situations, apply the competition rules to the postal sector and in the limits defined by the directive,

iii) the "notice" counters ECJ rulings on the admissibility of restrictions on competition, or even exclusion of all competition, as they prove necessary to enable the undertaking responsible for performing a task of general economic interest to perform that task[7],

iv) the "notice" is incompatible with the opinions expressed on decision-making competence by the political bodies of the European Union[8],

v) the "notice" potentially anticipates legislation and accelerates liberalisation. The very contents and core aims of the directive, submitted to the legal overriding political control of the Council and the European Parliament under article 100A EU, would therefore be undermined,

vi) the Commission goes too far in its assertions on the "necessary restructuring of public postal operators by 1 January 2000" (point 5.5 of the "notice"),

vii) the Commission goes too far in its assertions on the justification of restrictions to provide postal services (point 5b of the "notice"),

viii) the "notice" goes beyond the draft directive in its assertions on the liberalisation of the four different post market segments (point 4 of the "notice"),

ix) the "notice" contains a weak analysis on the distinction of the four "relevant post distribution markets" (point 4 of the "notice"),

x) the "notice" contains no sound economic analysis as regards its assertions on the liberalisation of direct mail and cross-border mail (points 5 of the "notice"),

xi) the "notice" contains at least 20 definition discrepancies in respect to the contents of the directive. The contents of the "notice" were therefore not properly harmonised upon the contents of the directive,

xii) the "notice" appears to prolong the Commission's intentions of 1994, when the Commission tried to simultaneously publish a proposal for a 100A directive on the universal service and adopt an article 90§3 Commission directive on the liberalisation of postal services.

Consequently, the Commission's underlying intentions are quite transparent to the Committee on Transports and Tourism: the Commission is seeking to adopt a "political" statement which would allow it to unilaterally liberalise the post markets by own-initiative article 90§3 EU decisions or directives, thus preempting the future contents of the directive and thus opposing and contradicting the binding legal decision making process under article 100A EU currently in progress between the European Parliament and the Council on the directive.

This is not acceptable. As stated by the Simpson report ""the notice" jeopardises the institutional balance in the decision-making procedure of the European Parliament"[9].

The Committee on Transport and Tourism therefore stresses, yet again, that any further liberalisation steps should by checked by the Council and the European Parliament on the basis of article 100A, and not by the Commission.

This position should not be interpreted as an opposition to liberalisation. It is a fundamental misunderstanding to confound European Parliament's demand for political control of liberalisation measures as contained in the Parliament's motion for a resolution of 9 May 1996, with a pretended general opposition to liberalisation measures in this sector.

Furthermore, the above-mentioned report on the proposal for a directive concerning the development of postal services, clearly mentions that "the EP fully complies with the coherence and legal security requirements as well as the necessity to guarantee the economic viability, the quality and the efficiency of the postal services as well as the conditions for a liberalised and open European market"[10]

3.Present situation

Given the time-table of the legislative procedure, it seems understandable that Parliament's position and observations concerning the directive on the development of postal services have not yet been taken into account in the "draft notice". This position could be summarised as follows:

i) the European Parliament asked for the change of the liberalisation timescale,

ii) the European Parliament asked for the deletion of the open-access provisions,

iii) the European Parliament concluded that alone article 100A of the Treaty is applicable to further proposals on the liberalisation of postal services. Here, the European Parliament's first reading therefore outruled application of article 90§3 EU to liberalise direct mail and incoming crossborder mail, future liberalisation steps are hereafter to be decided by Council and the European Parliament under an article 100A review procedure.

It should be mentioned that this position is also shared by the Economic and Social Committee and the Committee of the Regions, as well as a resolution of the French Senate, which affirms Council's and the European Parliament's decision-making competence on the basis of article 100A of the EU Treaty for any future liberalisation of postal services[11].

However, new developments concerning the timetable for the adoption of the directive and the notice could jeopardise the whole framework of any possible agreement of the EU institutions on this issue. It would indeed seem that although the directive on the development of postal services was adopted by the Parliament with considerable speed, work progress in Council has now come to a standstill.

The implications of such a standstill would be that the proposed directive would not be adopted by Parliament and Council by the end of 1996. This would risk to create further complications, as the Commission has repeatedly declared that it was willing to delay the adoption of its "draft notice" until the directive on postal services was finally adopted in order to achieve a cohesion between these two texts but it has also declared its firm intention to adopt the notice by December 1996 at the very latest.

In this case, if the "draft notice" were to be adopted before the directive, there would be no need to harmonise the two texts, since the directive would have become redundant. This would be unacceptable not only for the European parliament but also for the Council, since such a development would negate the decision-making powers of the EU legislator, i.e. the Council and the European Parliament.

It is therefore clear that the commission must not only align the contents of the "draft notice" upon the final contents of the directive, but also not adopt this "notice"until the directive has been definitely adopted by the Parliament and the Council.

4.Conclusions

The Committee on Transport and Tourism asks the Committee on Economic and Monetary Affairs and Industrial Policy to incorporate the following conclusions into its report:

1) calls on the Commission to withdraw its "draft notice";

2) asks the Commission, as already requested by Parliament and Council, not to adopt the draft "notice" until the proposal for a directive on the development of postal services and the improvement of quality has been definitely adopted by the European Parliament and the Council;

3) calls on the Commission to employ all possible means to ensure that the directive on the development of Community postal services and the improvement of quality of service is adopted within the shortest possible time;

4) asks the Commission to undertake the commitment to recognise the draft "notice" as complementary and subordinate to the directive;

5) should the Commission propose in future a new draft "notice" it must be aligned upon the final contents of the directive.

• [1] () Report by Mrs Braun-Moser, OJ C12/88, of 16 January 1989, p. 55-69
• [2] () OJ C42/93, p. 240 (report by Mr Simpson on the Green Paper), OJ C194 of 1993, p. 397, OJ C315 of 1993, p. 643
• [3] () Report by Mr B. Simpson, A4-0105/96, of 9 May 1996, see Minutes of this date
• [4] () Resolution of 25 October 1995, OJ C308/95 of 20 November 1995, p. 60
• [5] () See Mr B. Simpson's report, A4-0105/96 of 9 May 1996
• [6] () OJ C42, of 2 December 1995
• [7] () ECJ Corbeau ruling - C320/91, rec. 1993, p. I-2563
• [8] () Council resolution of 7 February 1994, OJ C48/94, p.3, Council declarations of 27 November 1995
• [9] () PE 199.154 / A4-0105/96 of May 9, 1996, point 8 of the exposé
• [10] () paragraph 25 of the explanatory statement
• [11] () JO de la République Française, 22 May 1996, Lois et décrets n. 118