POSTAL SERVICES DIRECTIVE IN ITALIAN LAW (Advisory opinion)
PRESS RELEASE
PRESS RELEASE
The Authority has issued a report on the reception into Italian law of the Community directive on postal services
The Antitrust Authority has submitted a report to parliament and the government regarding the draft legislative decree implementing the Community directive on postal services.
In its report, the Authority has pointed out that while this draft legislation respects the general criteria set out in the directive applied to the specific Italian situation, it nevertheless extends the scope of the monopoly over certain postal services which are currently being offered in competition, such as the distribution of commercial invoices, direct advertising, and general correspondence other than letters.
The Authority is concerned about the extension of these monopoly services, which can only be justified if it is indispensable in order to guarantee the provision of a universal postal service under conditions of financial equilibrium. At all events, to permit the extension of monopoly services the criterion of proportionality must be applied by the Community institutions to reach a decision on its legitimacy. The Authority pointed out that in order to guarantee financial equilibrium, the Italian Post Office should be allowed to use its own distribution network, diversifying its activities in other sectors, in free competition against other service-providers.
As far as the quality of the universal service is concerned, the draft decree provides that it should be controlled by the Regulator, but imposes no obligation on the Post Office to notify users about the features of the services it offers, as is required by article 6 of the Directive. Neither does the decree make any reference to the obligation on the part of the Regulator to ensure that the results are published at least once a year, and to introduce whatever corrective measures may be necessary if the results cannot be justified. Since the quality of the universal postal service in Italy falls far below European average standards, the Authority has recommended that the incorporation of this directive should be seized on as an opportunity to strive for higher service quality standards.
With regard to the scope of the universal service, the Authority has pointed out that the decree extends the obligation of the universal service to include parcels and packages up to the maximum 20 kilo limit set by the Community, which imposes an additional burden on the universal service-provider which is inevitably reflected in its efficiency and its trading results, in addition to the repercussions on its competitors through the financial offsetting mechanism.
The Authority also criticized the extension of the exclusive rights over hybrid electronic mail, recalling its report in November 1998 in which it maintained that Community case-law considers this a value-added service, so that it cannot be included among the services reserved exclusively to the universal service-provider. For the alternative hybrid electronic mail service-providers it is even more important, however, to set a deadline by which the Italian Post Office must implement measures to give them access to the public postal network under conditions of transparency and non-discrimination. In the current version of the decree, this deadline is not set.
Lastly, the Authority examined the planned fund to be used to compensate for the cost of the universal service, which can reach the exceptionally high level of 10% of gross revenues from the provision of the service, to which the decree requires contributions to be made both by individual licensees - namely, providers operating in sectors falling within the scope of the universal service, but with exclusive rights to provide it - and general permit-holders - namely, those who do not provide a universal service. The obligation on general permit-holders to contribute to the fund is not in accordance with Directive 97/67/EC. Furthermore, the amount of the contribution is not proportional to the results reported in the separate accounting records: for the fund is to be created immediately, whereas separate accounting, which Italian law required as long ago as 1997, has now been deferred to February 2000. Lastly, there would appear to be even less justification to require competing service-providers to contribute to the fund in cases in which the massive deficit run up by the dominant service-provider is due to inefficiencies in the service provided by the universal service-provider.
Rome, 10 May 1999