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These two parliamentary reports published at the same time relate the development of La Poste’s legal status to the requirements of Community competition law. Their successive and complementary presentation will nonetheless make it possible to draw common conclusions and analyses.
Information Report No. 2143 - the first under the new provisions of Article 151-1-1 of the National Assembly’s Rules of Procedure, according to which the European Affairs Committee may comment on any provision of a draft or proposed law on the agenda relating to an area covered by the activity of the European Union - traces the development of European postal services since the Treaty of Rome (1957). It is true that the opening up of the postal sector to competition has been very gradual; it has taken place over a period of some twenty years, a period which is nevertheless necessary to strike a balance between the necessary adjustments to the requirements of the single market and the preservation of certain "national acquis" in this area. The rapporteur, MEP Philippe Cochet, sets out the picture in three parts.
It first recalls the genesis of the first Postal Directive, which runs from 1989 to 1997. The rapporteur goes back over the transformation of European postal services and the beginning of Community intervention. Postal services are not mentioned in the Treaty of Rome and their transformation took place gradually at European level. Although the debate began in the 1980s following the emergence and then intensification of competition (with the arrival of the operators DHL and UPS, for example), the Member States changed the status of postal services from the end of the 1980s on the basis of three operator models: a public-law body, a private-law but publicly owned company, and a partially privatised company. A Community postal law gradually took shape. The report highlights two decisive stages at the start of Community intervention: the informal Council meeting in Antibes in September 1989, which launched the European debate on the postal sector with the planned reform of the French P&T administration; and the preparatory discussions for the Green Paper on the development of the single market in postal services (December 1990-June 1992). The Council then invited the European Commission to draw up a directive specifying the definition of the universal service and the list of services that could be reserved. On 26 July 1995, the European Commission therefore presented two texts: a notice on the application of competition rules to the postal sector and 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. The latter will be finally adopted by the Council of Ministers in December 1997.
In the second part, the rapporteur presents the three successive postal Directives: 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 established a comprehensive regulatory framework for European postal services and set a timetable for the further opening of postal markets to competition ; 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 by setting out the next steps in the process of gradual and controlled market opening and further limiting the service areas that may be reserved; Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC concerning the full accomplishment of the internal market of Community postal services requires Member States to abolish all reserved areas by 31 December 2010 (cf.ConcurrencesNo. 2-2008, Regulations column, p. 169). The author notes that the application of these directives has led to the beginning of a change in the situation of the postal sector in Europe, based on the one hand on the European Commission’s report published in December 2008, and on the other hand on recent developments in Germany, the United Kingdom, the Netherlands, Sweden and Spain.
The third and final part of the report presents the work of the National Assembly on these three directives. Directive 97/97/EC was examined by the Delegation of the National Assembly for the European Union, before being transposed by Act No. 99-533 of 25 June 1999 on the planning and sustainable development of the territory and by Decree No. 2001-122 relating to the specifications of La Poste. This was in fact a transposition a minima which led to the sending of a reasoned opinion to France by the European Commission on 25 June 2002. The new French legislation resulting from this transposition proved to be in breach of the Directive in that there was no functional separation between the national regulatory authority and the postal operator, the Minister responsible for the Post Office being both the national regulatory authority and responsible for supervising La Poste. Directive 2002/39/EC was also examined by the Delegation of the National Assembly for the European Union, before being transposed by Act No. 2005-516 of 20 May 2005 on the regulation of postal activities. This law focuses on two main areas: the organisation of postal activities (delimitation of "reserved" services, determination of La Poste’s liability regime and various measures) and the creation of the Autorité de Régulation des Communications Electroniques et des Postes (ARCEP). Finally, the aforementioned Directive 2008/6/EC setting the total liberalisation of postal markets in Europe as of 31 December 2010 is being transposed into national law by the bill relating to the public company La Poste and postal activities, which is the subject of the report by Jean Proriol, Member of Parliament.
Report No. 2138 of the National Assembly’s Economic Affairs Committee endorses the conclusions of the work of the committee on the development of La Poste, chaired by Mr. François Ailleret: the postal sector is in crisis or, more precisely, the historical postal activity - mail delivery - is in sharp decline (competition from fax, e-mail and telephone). The logic or spirit of the bill presented is summarized as follows: "If we want the unity of the La Poste group, it is necessary to give it the means it needs to enter into a bitter struggle in the parcels and express sectors, as well as in the field of action of the Postal Bank. Faced with the downturn in the mail sector, these are the business lines that will be able to provide La Poste with growth prospects. To do this, it is necessary to bring in money, and to bring in money, the status of a limited company is the most suitable". A link between the form or legal status of the operator and the development of its activities is postulated. Thus, over and above the legal obligation to transpose Directive 2008/6/EC, the rapporteur justifies the draft law by the need to change the status of La Poste, while respecting the balance between competitiveness and public service missions.
The first part of the report deals with the need to change the status of La Poste. Although the French postal service enjoys a traditional monopoly, it is futile to claim that there is a need to freeze La Poste within its current legal framework, that of a public establishment which is not concealed by the singular title of ’independent operator under public law’. The Post Office has never ceased to transform itself: from a private body to a fiscal body, from a sectorial administration to a public establishment, from an entity coupled with the telecommunications departments to an autonomous company. Through a brief historical overview, the rapporteur attempts to show that the changeover to public limited company status in no way prejudges a change in the mission of the public postal service. The report also throws a comparative light, recalling that a movement to reform the national postal services began in the late 1960s. At that time, the successive reforms, which were mostly set up as ministerial departments, brought their organization closer to that of private sector companies. In the European Union, in particular, the postal directives of 1997, 2002 and 2008 generalised the reform movement initiated earlier by certain Member States, so that today more than two thirds of the former postal operators have become private-law companies. Better still, the transformation of the status of national Posts has been accompanied by a strengthening of universal postal service guarantees, particularly within the European Union. From 1997 onwards, competition in the postal sector was increasingly allowed by Member States. Full opening to competition is now effective in about one third of EU countries; for another third of Member States, including France, it will become effective on 1 January 2011; and for the remaining third, it will become effective on 1 January 2012.
The second part of the report deals with the balance between guaranteeing public service missions and adapting to a competitive environment. The rapporteur addresses this issue through three points. Firstly, the question of funding is crucial. The full opening of the postal sector to competition on 1 January 2011 calls into question the balance currently established. Indeed, if La Poste no longer benefits from recourse to the reserved sector, it is necessary for the public authorities to determine another method of compensation. Several mechanisms could be envisaged for this purpose, taking into account the specific territorial and demographic characteristics of France, which juxtapose densely populated areas and sparsely populated areas - which may also be difficult to access. Alternative operators should logically favour the former and abandon the latter when they enter the market. It would first be possible to charge for access to La Poste’s infrastructure. This is the option favoured by the European Commission. The alternative service provider would pay a user fee in return for the use of the incumbent’s network and sorting centres. The Directive also opens up the possibility of a mechanism for compensating the universal service provider from public funds. The subsidy allows the expression of national solidarity since it leads to the financing of the universal postal service by taxpayers. This option, as the rapporteur quite rightly notes, does not seem appropriate in a context of budgetary difficulties. France therefore favours another solution, that of setting up a compensation fund fed by the postal operators. The draft law introduces guarantees into the operation of this compensation fund, which will be placed under the management of a public institution independent of postal sector companies. It will be up to the regulator to set the amounts of contributions payable by operators and the sum to be paid in return to the universal service provider. The universal service provider will also be subject to strict supervision to avoid any risk of cross-subsidisation. Finally, the regulator will monitor the evolution of the incumbent’s tariffs to ensure that they allow the universal service to be financed without reaching levels that are too low and which would make them predatory.
The second point is compliance with La Poste’s specific public service tasks. The Law of 20 May 2005 on the regulation of postal activities entrusts La Poste, the service provider to which the universal service is devolved, with obligations that go beyond the ordinary law of the European Union. The universal service is explicitly qualified as a public service by Article 2 of the draft law. It therefore complies with the rules relating to the latter: the need to ensure the equality of all, the need for temporal and spatial continuity, and the need for mutability in the light of changes in legal and factual circumstances. Consequently, La Poste has a specific mission of national spatial planning. A mission imposed by law, but which is coupled with an aspect of universal service. Article 3(2) of the Postal Directive 97/67/EC, as amended by Directive 2008/6/EC, stipulates that ’Member States shall take measures to ensure that the density of contact and access points takes account of the needs of users’. The cost of the regional planning task is determined by La Poste through the Contribution du Réseau à l’Aménagement du Territoire (CRAT). It is made up of two elements: an accessibility contribution in application of the rules relating to the universal service on the one hand, and a residual contribution based on the town and country planning mission on the other hand.
The third point, the most important one formally and symbolically: La Poste is being transformed into a state-controlled limited company with entirely public capital. It is true that, from the outset, the Minister for Industry, Mr Christian Estrosi, had stated on behalf of the Government that La Poste is "imprivatisable". The bill provides effective guarantees in this regard. The capital of La Poste may be held only by the State and legal persons belonging to the public sector, with the exception of the share held by the staff.
The bill, which was examined by the Senate on 9 November 2009, was put to a vote by deputies on 22 December 2009, before going through a joint committee at the beginning of the year for final adoption by Parliament on 12 January 2010. Although the government is trying to play down its scope, the change in the status of La Poste marks the beginning of a new page in its history, as important as its transformation from an administration to a public establishment of an industrial and commercial nature in 1991. It also raises the question - a recurrent and lively one - of the possible privatization of La Poste. Over and above the ’safeguards’ provided for by law, the fact that La Poste belongs to the public sector is merely the product of political will. This may change in this respect, particularly in the light of the European context. Nevertheless, the prospect of privatisation is only conceivable within the framework of a national consensus, La Poste being to some extent part of our "national identity", to use a (re)fashionable expression.