Discussion Papers

Ludwig Gramlich

Gesetzliche Exklusivlizenz, Universaldienstpflichten und "höherwertige" Dienstleistungen im PostG 1997
Nr. 194 / September 1999

Summary

The German Postal Act of Dec. 22, 1997 seems to continue the former "reserved right" of the Deutsche Bundespost because sec. 51 para. 1 in its first sentence confers a (fixed-term) exclusive licence in respect of certain postal services (in particular, letter ost items) to the Deutsche Post AG, i.e. the successor company of the Federal Postal Office. This exclusive privilege based on art. 143 b para. 2 of the Basic Law does however (inter alia) not include those kind of services which are "distinct from universal services, having special features and higher quality" (sec. 51 para. 2, second sentence, no. 4 of the Act). The licences granted for these "postal services D" by the Regulatory Authority (RegTP) were challenged by the Deutsche Post AG which filed various suits to the Administrative Court at Cologne.

The following legal expertise was asked for by the RegTP and then delivered to the court in order to confirm the legal opinion of this federal body. At first, the analysis describes the framework of modern postal law consisting of provisions of (German) constitutional, European as well as international (treaty) law. Next, essential structural and systemic elements of the 1997 Postal Act are dealt with more precisely to show which fundamental legal change took place when the "reserved right" of the former Act was abolished at the end of 1997. The new exclusive licence is merely an exception from the now generally enacted fundamental freedom of (postal) commerce. So its scope has to be interpreted narrowly. It also follows therefrom that a licence for "higher quality" postal services does not rest upon an unwritten precondition that the financially balanced condition of the Deutsche Post AG must not be put into disorder although this enterprise today is - in fact, but not in law - the only universal service provider. Certainly, the issue of "financially balanced condition" of a universal service provider has to be taken into account on behalf of EC law directives, but Community law does not require a specific way of implementation. Thus, the Federal Diet was in accordance with EC law when it took another direction and merely extended the scope of the exclusive licence to abide by the prevailing legal prescription.

Only German language version available.

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