The ANRCTI President’s Decision no.2858/2007 aims at achieving two main objectives: simplifying the procedure of authorising the providers of postal services and regulating in detail the activity of postal services provision
Simplifying the procedure of authorising the providers of postal services
The previous regulation (ANRCTI President’s Decision no.118/2003) was not relevant anymore and was not in accordance with the amendments brought to the Government Ordinance no.31/2002 on postal services by the Government Emergency Ordinance no.70/2006 and by Law no.133/2007.
The main amendments concerning the authorisation of postal services providers are the following:
Ø Natural persons may become providers of postal services – Starting January 1, 2007, the barriers to entry on the market of postal services encountered by the natural persons were eliminated, these persons following to be holders of the same rights and obligations as the legal persons as regards the postal services provision.
Ø Elimination of the individual licence – In order to facilitate the new-entrants’ access on the market, the authorisation procedure was simplified, by eliminating the individual licences and, consequently, the provision of all types of postal services based on the general authorisation regime.
Ø Making uniform the authorisation regime in the communications field – Following the model provided by the electronic communications field, the term in which a person was granted the right to provide postal services (45 days from notifying ANCOM) was eliminated. At present, the requesters gain this right from the date of notifying ANCOM or from a subsequent date particularly indicated. Furthermore, the postal services providers may lose the right to provide postal services, after the regulatory authority sanctioned the provider by withdrawing this right. Therefore, the person to whom was withdrawn the right to provide postal services shall not be granted the right to provide postal services for a period of 3 years from the right’s withdrawal.
Ø Elimination of the financial-postal services – By amending the Government Ordinance no.31/2002, in view of the alignment to the European practice, the financial-postal services were excluded from the category of postal services (because these did not represent proper postal services, but monetary/financial intermediation services – funds transfers) and, therefore, they were eliminated from ANCOM’s regulation sphere.
Ø Elimination of the requester’s declaration whereby he assumes the obligation to comply with the essential requirements
Considering these amendments brought to the primary legislation, the amendment of the secondary legislation was also necessary. The ANRCTI President’s Decision no.2858/2007 describes in detail the provisions of the Government Ordinance no.31/2002 and simplifies more the authorisation procedure, mainly by:
– eliminating the obligation of the person submitting the notification, namely requester’s obligation, in his capacity as commercial entity, to submit the establishment act, with all the subsequent amendments;
– eliminating the requester’s obligation to include in his object of activity the provision of postal services: CAEN codes 6411 and, respectively, 6412;
– eliminating the requirement that the requester’s legal representative sign the notification and its replacement with a declaration on own responsibility of the person signing the notification.
Regulating in detail the postal services provision activity
The main novelty ANRCTI President’s Decision no.2858/2007 brings is represented by the review of the classification of postal services included in the scope of universal service and of postal services which are not included in the scope of universal service. This measure was caused by:
a) the fact that the services within the scope of universal service are widely used by the public, especially by the users – natural persons, and hold – from this perspective – a certain social component; this component leads to the supplementary regulation of these services and the imposition on the providers of certain obligations;
b) the finding (upheld by studies undertaken by international experts) that the previous classification of services, centred round the “value added services” notion is liable to criticism, namely that, practically, there was an unlimited number of so-called “added values”, certain of them hard to individualize, which, attached to a postal service, lead to its removal from the scope of universal service.
The ANRCTI President’s Decision no.2.858/2007 provides a limited number of services which are not included in the scope of universal service, namely those services which have sufficiently significant supplementary characteristics, which may be easily identified by the sender and for which he is willing to pay an additional tariff, thus making the respective service distinct from the services within the scope of universal service. Therefore, practically, the postal services providers may add to the standard service (which exclusively implies the taking over of the postal item and its delivery to the addressee) as many supplementary characteristics (the previous “added values”) as they wish, which could be reflected in tariffs according to the provider’s commercial offer, but only when certain supplementary characteristics are added, as established by the ANRCTI President’s Decision no.2858/2007, the respective postal services are not included in the scope of universal service.
The services which are not within the scope of universal service are: Cash-on-delivery, Change of destination, Special delivery, Advice of delivery and Express.
Moreover, the postal services subject to postal items (items of correspondence, printed matters and direct mail) exceeding 2 kg, the services subject to domestic postal packages with weight limits between 10 kg to 50 kg, the services subject to the postal packages with weight limits between 10 to 50 kg sent from outside Romania to an address located in Romania, the services subject to postal packages with weight limits between 20 to 50 kg sent from outside Romania to an address located in Romania, as well as the Document exchange service are not included in the scope of universal service.
Depending on the evolution and dynamics of services, ANCOM shall review the list of services not included in the scope of universal service.
Another novelty is represented by the regulation of the contract regarding the postal services provision. Practically, is followed the general framework for services supply, established in the commercial right: the provider establishes his general conditions regarding the provision of postal services, which are part of his commercial offer, and if the sender introduces in the postal network a postal item complying with those general conditions, it is considered that a contract was concluded between the two parties, subject to the taking over of a provider of the postal item and its delivery under the same conditions to the addressee, within a certain term and in exchange for a certain tariff.
Hence, the ANRCTI President’s Decision no.2858/2007 regulates in detail all the phases of concluding and executing such a contract: general conditions regarding the provision of postal services, especially the conditions of accepting the postal items; collection of the postal item by the provider; delivery of the postal item to the addressee; keeping of the postal item; returning of the postal item; parties’ responsibility.
The ANRCTI President’s Decision no.2.858/2007 regulates other obligations imposed on the postal services providers as well, concerning: the marking of the postal items and of the postal network’s elements; users’ notice; ensuring the protection of the correspondence secret, of the personal character data, as well as the confidentiality of the information transmitted or stored, the protection of the right to privacy; services’ availability; quality of services; complaints management; the monitoring tariff; ANCOM notification.
An important consequence of the adoption of the ANRCTI President’s Decision no2858/2007 is the obligation of all current providers to submit a new notification, by December 31, 2007, so that the services they provide could be included in the new classification. See further details