Postal Services (General) (Amendment) Regulations, 2012

L.N. 408 of 2012

POSTAL SERVICES ACT

(CAP. 254)

Postal Services (General) (Amendment) Regulations, 2012

IN exercise of the powers conferred by article 81 of the Postal

Services Act, the Minister for Infrastructure, Transport and

Communications, after consultation with the Malta Communications

Authority, has made the following regulations:-

The title of these regulations is the Postal Services Citation.

(General) (Amendment) Regulations, 2012 and these regulations shall

be read and construed as one with the Postal Services (General) S.L. 254.01

Regulations, hereinafter referred to as "the principal regulations".

Regulation 2 of the principal regulations shall be amended Amends

regulation 2 of

as follows

the principal

regulations.

(a)

immediately after the definition "box-holder" there

shall be added the following new definition

" "customer" means any person who may also be a

postal operator, who purchases a postal service from a

postal operator;"; and

(b)

immediately after the definition "postal identifier"

there shall be added the following new definition

" "postal infrastructure" includes physical

infrastructure such as post office boxes and delivery boxes,

and infrastructure in non-physical form such as postcode

information, information on change of address, redirection

service, return to sender service, or arrangements made

with others for the provision of any postal service;".

Immediately after regulation 43A of the principal Adds new

regulation to the

regulations there shall be added the following new regulation

principal

regulations.

" Universal

43B. (1) If a universal service

service

provider designated in accordance with the

provider failing

Act at any time ceases, for a continuous

to provide

service.

period of one week, to provide a universal

service the provision of which it has been

designated to provide, for any reason other

than

(a)

industrial action or other

force majeure; or

(b)

if the universal service

provider goes into liquidation or is

declared bankrupt,

then the Government may consider the

universal service provider as effectively being

unable to abide with the said universal service

obligation onerous on it.

(2) Where a universal service provider

ceases to provide a universal service in the

circumstances referred to in sub-regulation

(1), the Government may, in order to ensure

the continuity of that service, take over that

part of the operation of the postal services

relating to the provision of the universal

service obligation which the universal service

provider has ceased to provide, without any

obligation to pay compensation to the

universal service provider

Provided that in doing so the

Government, where necessary, shall without

any undue delay endeavour to find an

alternative operator to provide the said

universal service in line with the Act

Provided further that the Government or

any person authorised by the Government for

the purpose, shall be empowered to use the

assets of the universal service provider

subject to the payment of such compensation

for the said use as may be agreed between the

parties, or in default of agreement, determined

by the competent Maltese Courts or, where all

the parties agree, by arbitration according to

Maltese Law, and to recoup any reasonable

costs incurred in providing the said universal

service from the defaulting universal service

provider.".

Sub-regulation (1) of regulation 45 of the principal

regulations shall be substituted by the following

"(1) The authorisation by virtue of which a universal

service provider may provide services within the scope of the

universal services in accordance with the Act, shall be granted

by individual licence.".

Regulation 46 of the principal regulations shall be Amends

regulation 46 of

amended as follows

the principal

regulations.

(a)

the marginal note thereto shall be substituted by the

following

"Licensing of services within the scope of

universal services";

(b)

sub-regulation (1) thereof shall be substituted by

the following

"(1) The authorisation by virtue of which a postal

operator provides postal services falling within the scope

of the universal services, but where such operator is not a

universal service provider, shall be granted by individual

licence."; and

(c)

sub-regulation (2) thereof shall be substituted by

the following

"(2) The grant of a licence under sub-regulation

(1) shall be deemed to authorise the licensee to provide

also postal services outside the scope of the universal

services

Provided that the licensee shall also comply with

the conditions attached to the general authorisation.".

Sub-regulation (1) of regulation 47 of the principal Amends

regulation 47 of

regulations shall be substituted by the following

the principal

regulations.

"(1) The authorisation to provide postal services that

are outside the scope of the universal services, shall be granted

in accordance with a general authorisation.".

Sub-regulation (1) of regulation 48 of the principal Amends

regulation 48 of

regulations shall be substituted by the following

the principal

regulations.

"(1) Any person who intends to provide postal services

outside the scope of the universal services shall, before doing

so, notify the Authority of his intention to provide such

services.".

Part IX of the principal regulations shall be renumbered as Renumbers Part

IX of the

Part X thereof.

principal

regulations.

Immediately after regulation 64 of the

regulations, there shall be added the following new part

"Part IX

Market Regulation

64A. (1)

The Authority shall define

Defining a

postal services

the relevant postal services markets within the

market.

scope of the universal service appropriate to

national circumstances.

(2) The provisions of sub-regulation

(1) are without prejudice to any other relevant

postal services markets that the Authority

may define in accordance with the principles

of competition law.

64B. (1)

The

Authority

Postal

operators with

determine whether postal operators have

significant

market power.

significant market power in accordance with

this regulation and taking into account any

guidelines howsoever described by the

Authority

Provided that, on the coming into force

of these regulations, the Authority may

designate the postal operator designated as the

universal service provider, as having

significant market power in any relevant

postal services market within the scope of the

universal service as identified by the

Authority.

(3) A postal operator shall be deemed

to have significant market power if either

individually or jointly with others, it enjoys a

position equivalent to dominance, that is to

say a position of economic strength affording

it the power to behave to an appreciable

extent

independently

of

competitors,

customers and ultimately users.

(4) Where a postal operator has

significant market power on a specific

relevant postal services market, it may also be

designated as having significant market

power on a closely related postal services

market where the links between the two

markets are such as to allow the market power

held on one market to be leveraged into the

other market, thereby strengthening the

market power of the postal operator.

64C. (1)

The Authority may, at any

Market analysis

procedure.

time as it may deem necessary, after having

defined a postal services market in

accordance with regulation 64A, carry out an

analysis of such a market taking into account

any guidelines howsoever described by the

Authority.

(2) Where the Authority is required

under sub-regulations (3) and (4), or

regulations 64E to 64I, to determine whether

to impose, maintain, amend or withdraw

specific obligations on postal operators, it

shall determine on the basis of its market

analysis referred to in sub-regulation (1)

whether a relevant postal services market is

effectively competitive.

(3) Where the Authority determines

that a postal services market is effectively

competitive, it shall not impose or maintain

any of the specific regulatory obligations

referred to in sub-regulation (2) applicable to

a postal operator with significant market

power

Provided that in cases where a postal

operator had previously been designated as

having significant market power and such

obligations already exist, the Authority shall,

after giving reasonable notice to any parties

which the Authority considers to be affected

by such withdrawal, withdraw such

obligations onerous on the postal operator

concerned.

B B 4196

(4) Where the Authority determines

that a postal services market is not effectively

competitive, it shall designate postal

operators as having significant market power

in accordance with regulation 64B, and it

shall impose on such postal operators

appropriate regulatory obligations referred to

in sub-regulation (2), or maintain and amend

such obligations where they already exist.

(5) The

Authority

shall,

when

necessary, carry out a further analysis of a

relevant postal services market referred to in

sub-regulation (1), and sub-regulations (2) to

(4) shall apply accordingly.

64D. (1) The Authority shall impose the

Imposition,

amendment or

obligations identified in regulations 64E to

withdrawal of

obligations on

64I, as appropriate, on any postal operator

postal operators

having significant market power in a relevant

with significant

market power.

postal services market as a result of a market

analysis carried out in accordance with these

regulations.

(2) Unless otherwise provided in the

Act or in these regulations, and without

prejudice to the need to comply with

international commitments, the Authority

shall not impose any of the obligations set out

in regulations 64E to 64I on postal operators

who have not been designated as having

significant market power in accordance with

sub-regulation (1)

Provided that regulations 64E to 64I

shall be without prejudice to the power of the

Authority to issue any directives to any postal

operator as it may be authorised to issue at

law, including but not limited to any such

directives issued in respect of article 76A of

the Act.

64E. In accordance with the provisions

Obligation to

provide

of regulation 64D, a postal operator,

services at

cost-oriented

designated as having significant market

prices.

power in a relevant postal services market,

shall provide such services in that market to

customers at cost-oriented prices, that is to

say, that prices shall take account of, and

reflect the costs of, providing the postal

service or part of the postal service in that

market.

64F. (1) In accordance with the

Obligation of

non-

provisions of regulation 64D, a postal

discrimination.

operator designated as having significant

market power in a relevant postal services

market must provide such services in that

market to customers

(a)

at prices, terms and

conditions that are non-discriminatory;

and

(b)

shall not discriminate in

favour of itself, or of its subsidiaries or

partners, in the provision of such

services in that market.

(2) The obligation to provide such

services on a non-discriminatory basis

requires that differences in the prices, terms

and conditions for comparable postal services

have to be based on objective differences,

such as, but not limited to, variations in the

cost of the service provided, variations in the

quantity or quality of the service provided, or

variations in the duration of the service

agreement period.

64G. (1)

In accordance with the

Obligation of

provision of

provisions of regulation 64D, a postal

services on an

unbundled

operator, designated as having significant

basis.

market power in a relevant postal services

market, shall provide such services in that

market on an unbundled basis.

(2) Without prejudice to the generality

of sub-regulation (1), the postal operator shall

not require that, as a condition of purchasing

such a service, a customer shall also purchase

any other postal service or non-postal service

or product

B B

4198 4198

Provided that the postal operator may

offer customers the option to purchase a

package that contains multiple postal services

and non-postal services or products.

64H. (1) In accordance with the

Approval of

tariffs and

provisions of regulation 64D, and in

publication.

accordance with any directives that the

Authority may issue, a postal operator

designated as having significant market

power in a relevant postal services market

shall submit a tariff for the written approval of

the Authority prior to offering or modifying

the terms and conditions on which it offers

any postal service that it provides in that

market, including postal services designed for

specific customers

Provided that where a tariff has been

approved in accordance with this regulation

the postal operator shall obtain the written

approval of the Authority prior to the

withdrawal of the postal service that it

provides.

(2) The Authority may issue directives

to a postal operator designated as having

significant market power in a relevant postal

services market in respect of the manner in

which approved tariffs, terms and conditions

(including quality of service) on which the

postal operator provides the service, shall be

published.

64I. (1)

Without prejudice to the

Accounting

separation.

provisions of article 23 of the Act, in

accordance with regulation 64D and with any

directives as the Authority may issue, a postal

operator designated as having significant

market power in a relevant postal services

market is required to keep separate accounts

within its accounting system.

(2) An internal accounting system as

referred to in sub-regulation (1) shall operate

on the basis of consistently applied and

objectively justifiable cost accounting

principles

Provided that the Authority may specify

the format and accounting methodology to be

used by a postal operator found to have

significant market power.

(3) Compliance

with

the

cost

accounting

system,

including

related

regulatory accounts, shall, at the choice of the

Authority, be verified by the Authority or by a

suitably qualified independent body approved

by the Authority.

(4) The postal operator concerned

shall also publish in its annual accounts a

statement concerning compliance by it with

any cost accounting system imposed under

this regulation.

64J. (1)

A postal operator shall

General access

for the

have a right and, when requested by another

provision of

postal services.

postal operator, an obligation to negotiate

access with a view to concluding an

agreement with each other for the purpose of

providing postal services and shall serve a

notice on the Authority upon the

commencement of any such negotiations.

(2) The Authority shall, if so requested

in writing by either party to the negotiations,

specify the period within which the

negotiations referred to in sub-regulation (1)

shall be completed.

(3) Where agreement is not reached

within the period specified by the Authority

under sub-regulation (2), the Authority, at its

discretion and if so requested by either party

to the negotiations, may take steps to resolve

any dispute which may have arisen as a result

of the failure to reach an agreement

Provided that the resolution of any such

dispute shall be in accordance with

procedures established and maintained by the

Authority.

(4) A postal operator which acquires

information from another postal operator

before, during or after the process of

negotiating access arrangements shall use that

information solely for the purpose for which it

was supplied, and shall respect at all times the

confidentiality of information transmitted or

stored. The received information shall not be

passed on to any other person including any

subsidiaries or partners, for whom such

information could provide a competitive

advantage.

64K. (1)

The Authority may issue

Access to the

postal

directives to a postal operator providing

infrastructure.

services within the scope of the universal

service, requiring it to permit access to other

postal operators to its postal infrastructure on

such terms and conditions as the Authority

may direct for that purpose, in particular, in

situations where the Authority considers that

denial of access, or unreasonable terms and

conditions having a similar effect, hinder the

emergence of a sustainable competitive

market or would not be in the interest of the

user.

(2) The Authority may require a postal

operator providing services within the scope

of the universal service to adopt and publish a

reference offer which specifies the terms and

conditions on which the postal operator will

permit access to other postal operators to its

postal infrastructure.

(3) The Authority may specify the

precise information to be made available in a

reference offer, including provisions related

to the type of access to be provided, the price

of access, terms and conditions relating to

matters other than price, and the level of

detail required and the manner of publication.

(4) The Authority may impose changes

to reference offers to give effect to the

obligations imposed under these regulations.

64L. (1)

The Authority may issue

Access to the

postal network

directives to a universal service provider

of a universal

service

requiring it to meet reasonable requests for

provider.

access to, and use of, specific elements of the

postal network on such terms and conditions

as the Authority may direct for that purpose,

in particular, in situations where the Authority

considers that denial of access, or

unreasonable terms and conditions having a

similar effect would hinder the emergence of

a sustainable competitive market or would not

be in the interest of the user.

(2) The Authority may require a

universal service provider to adopt and

publish a reference access offer which

specifies the terms and conditions on which

the universal service provider shall permit

access to specific elements of the postal

network, which shall be sufficiently

unbundled to ensure that postal operators are

not required to pay for facilities which are not

necessary for the services requested

Provided that the universal service

provider shall, in doing so, give a description

of the relevant offerings broken down into

components according to market needs, and

the associated terms and conditions including

prices.

(3) The Authority may specify the

precise information to be made available in a

reference access offer, including provisions

related to the type of access to be provided,

the price of access, terms and conditions

relating to matters other than price, and the

level of detail required and the manner of

publication.

(4) The Authority may impose changes

to reference access offers to give effect to the

obligations imposed under these regulations.

64M. Any directives and decisions

Transitory

provisions.

howsoever described issued by the Authority

and in force prior to the coming into force of

these regulations shall continue to be in force

until revoked or amended by the Authority.".

B

Regulation 67 of the principal regulations shall be deleted.

Deletes

regulation 67 of

the principal

regulations.

Paragraph (b) of the First Schedule of the principal

Amends the

First Schedule

regulations shall be substituted by the following

to the principal

regulations.

"(b) Fees to be paid by

operators who are not

designated universal service

providers, licensed in terms

of regulation 46 in respect of

services which are both

within and outside the scope

of the universal services ...... €930

together with one percent

of the total gross revenue

from postal services within

the scope of the universal

services;".

€1.08