3. Building postal Europe

The European Union calendar for the development of a single postal market, which was initiated under the French presidency in 1989, has already seen many delays. The measures for harmonising European regulation in this sector will not come into force before 1996.

After the publication of the Postal Green Paper in 1992, the European Council of Posts and Telecommunications Ministers identified in its Resolution of 7 February 1994 the objectives of European Union policy in the field of postal services and emphasized the need for determined action by European Union institutions in order to fully realize these objectives, which contribute to building a single market. As a consequence, the Commission of the European Communities was asked to prepare by the end of the first half of 1994 the measures required for achieving these objectives in the areas of universal postal service, reserved services, harmonisation and quality of service.

France has taken the opportunity to reaffirm once again its support for the objectives of European Union postal policy as set out by the Council and the urgency of European Union regulations for this sector. Without such regulations, the postal market will find itself without the operating principles needed by both service providers and users for a long time to come; if this were to occur, regulation would be developed by dealing with disputes on a case by case basis, and not on the basis of a clear coherent overall framework.

When it assumes the presidency of the Council of Ministers on 1 January 1995, France thus intends to support the adoption of such a regulatory framework, including the definition of universal service and reservable services, as well as the conditions for fair competition on the market.

Furthermore, the French presidency will propose that the Council adopt a Resolution giving a political framework to any conclusion reached between postal operators on the system of terminal dues applicable in Europe. Such a Resolution would help set up a real internal market for postal services, without awaiting the adoption of the Directives that the Commission must propose.

The "Corbeau" decree of the European Communities Court of Justice

of 19 May 1993

the Belgian postal monopoly faces up to the rules of competition

This Decision, which significantly affects the application of Article 90 of the Treaty of Rome, originated when a criminal procedure was brought against Mr. Corbeau for violating Belgian laws on the postal monopoly.

The criminal court considered it necessary to pose preliminary questions to the Court of Justice in order to determine whether Belgian law could use criminal sanctions to forbid an economic operator doing business in the country to offer certain specific services on the mail market, for which collection, transportation and distribution is the exclusive responsibility of the Belgian Post Office.

After having determined that the situation is definitely one where a Member State has accorded exclusive rights to the Post Office which has a dominant position on a substantial part of the Common Market in the sense of Article 86 of the Treaty, the Court of Justice considered that it was necessary to examine whether this Government policy was contrary to the rules of competition. In examining this question, it is necessary to take into account Article 90-2 which allows Member States to accord companies to which it has given the responsibility for services which are in the public economic interest exclusive rights which could raise impediments to the application of the rules of competition as set forth by the Treaty. In this case, it is necessary to determine whether the restriction on competition, that is, the exclusion of all competition by other economic operators, is necessary in order to ensure the fulfillment of the specific operations that were entrusted to the companies holding the exclusive rights.

The Court of Justice developed its reasoning in three stages:

• It recognizes that there is a mission of public economic interest, which it defines by making direct reference to notions of continuity, equal treatment of users, and quality of service.
• Once the mission of public economic interest has been set forth, it then seeks to determine whether the infringements on competition are actually necessary for accomplishing this mission profitably.

The Court of Justice acknowledges that limits to competition in an economically profitable sector could be justified. To hold otherwise would be to permit some operators to concentrate on the most profitable operations while not allowing the operator holding the exclusive rights to compensate for the losses suffered in non-profitable sectors with the gains from those that are more profitable.

• Nonetheless, such an exclusion of competition is not acceptable in cases involving specific services that are separable from the public interest service and which meet the specific needs of economic operators and which require certain additional undertakings that the traditional postal service does not offer, such as collection at the home, great speed or reliability in distribution or, for instance, the possibility of changing the destination during the course of delivery, to the extent that the economic health of the service of public economic interest ensured by the holder of the exclusive rights is not harmed.

This Decision has the merit of attracting attention to the constraints on public service, but its reasoning based on drawing a distinction between universal service activities and those that can be termed "specific services" is not without certain weaknesses.

The Court of Justice leaves it to the national jurisdiction to determine whether the services concerned here meet the above criteria and whether the economic healthiness of the service of public economic interest might be harmed.

If, despite the Postal Green Papers and the Council Resolution of 7 February 1994, there is no common postal policy, then it is on the basis of this jurisprudence that the

liberalisation of the postal service might well develop.

Chapter IV