Postal Services (General) (Amendment No. 2) Regulations, 2014

L. N. 154 of 2014

POSTAL SERVICES ACT

(CAP. 254)

Postal Services (General) (Amendment No. 2) Regulations, 2014

IN EXERCISE of the powers conferred by article 81 of the

Postal Services Act, the Minister for the Economy, Investment and

Small Business, after consultation with the Malta Communications

Authority, has made the following regulations:-

(1)

The title of these regulations is the Postal Services

(General) (Amendment) (No. 2) Regulations, 2014, and these

regulations shall be read and construed as one with the Postal

Services (General) Regulations, hereinafter referred to as "the

principal regulations".

(2) These regulations shall come into force on the 12th May,

2014.

In sub-regulation (2) of regulation 2 of the principal

regulations, immediately after the definition "postal arrangement"

there shall be added the following new definition

" "Postal Directive" means Directive 2008/6/EC of the

European Parliament and of the Council of 20 February 2008

amending Directive 97/67/EC with regard to the full

accomplishment of the internal market of community postal

services;".

Regulation 7F of the principal regulations shall be deleted.

In regulation 8 of the principal regulations, for the words

"in article 17(5) of the Act." there shall be substituted the words "in

article 17(4) of the Act.".

Regulation 17 of the principal regulations shall be

substituted by the following

"17. When a postal operator is satisfied that a postal

article is addressed to a deceased person, it may at its discretion

immediately deliver or redirect such postal article upon a

legitimate request in writing by -

(a) the executors named in the will of the

addressee, or

(b)

the surviving spouse of the addressee, or

(c)

the heirs of the addressee, or

(d) the administrator of the estate of the

addressee or any other person conducting the affairs of that

estate, or

(e)

any other interested person

Provided that if the postal operator requires any

evidence that a person has a legitimate interest to request the

delivery or redirection of the postal article in question, then the

postal operator concerned shall retain the postal article in

question for such a reasonable period as is necessary to enable

such person to produce any such evidence. If the required

evidence is not provided within such period then the postal

articles shall not be retained and shall be dealt with as provided

in these regulations

Provided further that in the case of registered

postal articles, such postal articles shall not be retained in terms

of this regulation and shall be treated as undeliverable and dealt

with as provided in these regulations.".

Regulation 43A of the principal regulations shall be Substitutes

regulation 43A

substituted by the following

of the principal

regulations.

" Burden

43A. (1) Where

the

Authority

sharing in

determines that the universal service

relation to the

obligations entail a net cost calculated taking

provision of

universal

into account the Second Schedule which

services.

represent an unfair financial burden on the

universal service provider or providers, the

Authority may then introduce

(a)

a

mechanism

to

compensate the postal operator or

operators concerned from public funds

Provided that such a mechanism

may only be established with the prior

approval in writing of the Minister

granted with the concurrence of the

Minister for Finance; and, or

(b)

a mechanism for the

sharing of the net cost of the universal

service obligations between postal

operators and, or users

Provided that in such a case the

Authority may establish a compensation

fund which may be funded by postal

operators and, or the fees paid by users,

and which is administered for this

purpose by the Authority or a body

independent of the beneficiary or

beneficiaries under the supervision of

the Authority.

(2) The Authority shall notify each

postal operator required to share the cost of a

universal service obligation of its obligation

to contribute to such cost, including the

amount, manner and timing of payments to be

made.

(3) A postal operator which has been

notified of its obligation to contribute an

amount specified by the Authority, shall pay

that amount in the time and manner specified

by the Authority.

(4) The Authority shall ensure that the

principles of transparency, non-discrimination

and proportionality are respected in

establishing the compensation fund and when

fixing the level of financial contributions

referred to in sub-regulation (1)(b)

Provided that decisions taken shall be

based on objective and verifiable criteria and

that they shall be published.".

Regulation 43B of the principal regulations shall be

amended as follows

(a)

in sub-regulation (1) thereof, for the words "the

Government may consider" there shall be substituted the words

"the Authority may consider"; and

(b)

sub-regulation (2) thereof shall be substituted by

the following

"(2) Where a universal service provider ceases to

provide a universal service in the circumstances referred to

in sub-regulation (1), the Government may, with the prior

written approval of the Authority, 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 a universal service

provider has ceased to provide, without any obligation to

pay compensation to the universal service provider

concerned

Provided that in doing so the Authority, in

consultation with 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 concerned subject to the payment of such

compensation for the said use as may be agreed between

the parties, or in default of agreement, as may be

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.".

Immediately after regulation 47 of the principal Adds new

regulations 47A

regulations there shall be added the following new regulations

to 47C to the

principal

regulations.

" Conditions

47A. The granting of an individual

applicable on

licence may

the granting of

(a)

if necessary and justified,

individual

licences.

impose requirements concerning the

quality, availability and performance of

the relevant services;

(b)

where

appropriate,

be

subject to an obligation to make a

financial contribution to the sharing

mechanisms as may be established in

accordance with the Act and, or with

these regulations if the provision of the

universal service entails a net cost and

represents an unfair burden on the

universal service provider or providers

as may be designated in accordance with

the Act;

(c)

where

appropriate,

be

subject to an obligation to make a

financial contribution to the operational

costs of the Authority;

(d)

include the provision to the

Authority by the licensee of such

information relating to the turnover of

postal services that are within the scope

of the universal service and any postal

services outside this scope;

(e)

include such conditions as

the Authority may consider to be

necessary having regard to its functions

at law and, or to the international

obligations of Malta; and

(f)

in the case of universal

service providers only, be made subject

to universal service obligations.

47B. (1) An application for an

Processing and

determination

individual licence shall be submitted to the

of an individual

licence.

Authority, following which the application

shall be processed and determined in a timely

manner by the Authority which shall, in

writing, inform the applicant of its decision to

grant or refuse the application within one

month from when it receives the application

in a complete state and drawn up in a manner

that complies with the provisions of the Act

and, or these regulations. In the case of a

refusal the Authority shall give its reasons

Provided that such period of one month

may be extended by the Authority up to a

maximum of another two months where an

application requires consultation between the

Authority and any other government body or

other local or foreign public authority,

however so described, with regard to any

aspect of the provision of postal services

applied for. If the Authority requires such an

extension it shall inform the applicant

accordingly informing in writing the applicant

of the reasons as to why such an extension is

required.

(2) The time limits provided for in this

regulation shall be without prejudice to any

applicable international agreements relating

to postal services.

(3) Upon receipt of an application for

an individual licence, the Authority shall

publicise on its website that such an

application has been made, giving such details

as it may deem necessary to enable any

persons wishing to make representations

within such period as the Authority may

establish.

(4) The applicant in his application

shall provide a clear description of the postal

service or services being applied for and shall

include with his application any such

information as the Authority may require

Provided that in any case the applicant

must provide such information as is sufficient

to demonstrate that he fulfils the conditions

for the grant of the licence.

(5) Due to overriding reasons of public

interest, the absence of a final decision from

the Authority within the time periods stated in

this regulation shall not be construed to imply

the granting of an individual licence applied

for

Provided that the applicant, if he

considers the delay to be unjustified and as a

result has suffered prejudice, may then appeal

in accordance with the provisions of Part VIII

of the Malta Communications Authority Act.

(6) A person authorised in accordance

with regulation 46 shall notify the Authority

in writing of any changes to the information

provided in accordance with sub-regulation

(4) within fourteen days of such change.

47C. The Authority may refuse to grant

Grounds for

refusal of an

an application for an individual licence if it

application for

an individual

considers that the grant of the licence would -

licence.

(a)

be against the public

interest, or be inconsistent with

Government policy and the Minister

agrees that is the case;

(b)

be inconsistent with the

provisions of the Act or of any other

law, or with any international

commitment undertaken or in the

process of being undertaken by Malta;

(c)

pose a danger or nuisance

to the public or damage to any property,

or obstruct or interfere with any lawfully

operated postal services;

(d)

authorise an applicant when

he does not demonstrate to the Authority

that he fulfils the conditions for the

grant of such a licence;

(e)

be given to a person who

the Authority has valid grounds to

consider as not being a fit and proper

person to hold the licence applied for, or

would not be in a position because of his

financial and, or other specific

circumstances, to comply with the

provisions of the Act and, or of these

regulations or with the licence

conditions if granted.".

Sub-regulation (1) of regulation 50 of the principal

regulations shall be substituted by the following

"(1)

The Authority shall establish and maintain a

register of those persons who are authorised to provide postal

services in accordance with these regulations

Provided that any information that the Authority

considers appropriate, other than information which the

Authority reasonably considers to be confidential, shall be

entered in the register established and maintained under this

sub-regulation.".

Immediately after regulation 50 of the principal

regulations there shall be added the following new regulation

" Transferabi-

50A. (1)

No individual licence may

lity of

be transferred or assigned by the authorised

authorisation.

provider to another person without the prior

consent in writing of the Authority

Provided that the Authority shall

communicate its decision within one month

from when the authorised provider applies in

writing for its consent and, in doing so, the

Authority shall state its reasons for the

decision

Provided further that where the

authorised provider is a body corporate or

another body of persons, a change in the

control of ownership or management of that

body shall be equivalent to the transfer of the

individual licence, and shall be subject to the

prior consent of the Authority as aforesaid.

(2) The change in the control of the

ownership or management of an authorised

body corporate or other body of persons

enjoying a general authorisation, shall be

immediately notified in writing to the

Authority.".

In regulation 65 of the principal regulations, for the words Amends

"with article 17(3) of the Act" there shall be substituted the words regulation

the principal

"with article 17(2) of the Act".

regulations.

The Second Schedule to the principal regulations shall be Substitutes the

Second

substituted by the following

Schedule to the

principal

regulations.

"SECOND SCHEDULE

(Regulation 43A)

Guidance on calculating the net cost, if any, of universal service

in accordance with the Postal Directive

Part A: Definition of the universal service obligations

Universal service obligations refer to the obligations, referred to

in article 17 of the Act, placed upon a postal service provider by a

Member State which concern the provision of a postal service

throughout a specified geographical area, including, where required,

uniform prices in that geographical area for the provision of that

service or provision of certain free services for blind and partially

sighted persons.

These obligations may include, among others, the following

-

a number of days of delivery, superior to those set

in this Directive;

-

accessibility to access points, in order to satisfy the

universal service obligations;

-

the tariffs affordability of the universal service;

-

uniform prices for universal service;

-

the provision of certain free services for blind and

partially sighted persons.

Part B: Calculation of net cost

The Authority shall consider all means to ensure appropriate

incentives for postal service providers (designated or not) to provide

universal service obligations cost efficiently.

The net cost of universal service obligation is any cost related to

and necessary for the operation of the universal service provision.

The net cost of universal service obligations is to be calculated, as the

difference between the net cost for a designated universal service

provider of operating with the universal service obligations and the

same postal service provider operating without the universal service

obligations.

The calculation shall take into account all other relevant

elements, including any intangible and market benefits which accrue

to a postal service provider designated to provide universal service,

the entitlement to a reasonable profit and incentives for cost

efficiency.

Due attention is to be given to correctly assessing the costs that

any designated universal service provider would have chosen to

avoid, had there been no universal service obligation. The net cost

calculation should assess the benefits, including intangible benefits,

to the universal service operator.

The calculation is to be based upon the costs attributable to

(i)

elements of the identified services which can only

be provided at a loss or provided under cost conditions falling

outside normal commercial standards. This category may

include service elements such as the services defined in Part A;

(ii)

specific users or groups of users who, taking into

account the cost of providing the specified service, the revenue

generated and any uniform prices imposed by the Authority, can

only be served at a loss or under cost conditions falling outside

normal commercial standards.

This category includes those users or groups of users that would

not be served by a commercial operator that did not have an

obligation to provide universal service.

The calculation of the net cost of specific aspects of universal

service obligations is to be made separately and so as to avoid the

double counting of any direct or indirect benefits and costs. The

overall net cost of universal service obligations to any designated

universal service provider is to be calculated as the sum of the net

costs arising from the specific components of universal service

obligations, taking account of any intangible benefits. The Authority

shall be responsible for verifying the net cost. The universal service

provider(s) shall cooperate with the Authority to enable it to verify

the net cost.

Part C: Recovery of any net costs of universal service

obligations

The recovery or financing of any net costs of universal service

obligations may require designated universal service providers to be

compensated for the services that they provide under non-commercial

conditions. As such compensation involves financial transfers the

Authority shall ensure that these are undertaken in an objective,

transparent, non-discriminatory and proportionate manner. This

means that the transfers result as far as possible in the least distortion

to competition and to user demand.

A sharing mechanism based on a fund referred to in regulation

43A of these regulations should use a transparent and neutral

mechanism for collecting contributions that avoids a double

imposition of contributions falling on both outputs and inputs of

undertakings.

The Authority or the independent body administering the fund,

as the case may be, is to be responsible for collecting contributions

from undertakings, which are assessed as liable to contribute to the

net cost of universal service obligations and is to oversee the transfer

of sums due to the undertakings entitled to receive payments from the

fund.".

€0.99