Il mercato postale tra regolazione e concorrenza: profili evolutivi e normativi

Abstract

The postal market is facing a systemic crisis caused by a change in the socio-economic scenario which, for many decades now, has been moving towards digital tools as an alternative to traditional ones, as well as increasingly incisive European regulation towards the deregulation of strategic sectors. The objectives set at European level to encourage the opening up of the market and the competitive activity of postal operators in order to improve the quality of the services they provide are having to contend with a structural change in the sector due to the decline in traditional mail products (such as letters, invoices, commercial offers) as a result of the e-substitution of paper mail by electronic mail. The European postal market is aimed at strengthening and developing Information Technology Networks - ICT, consolidating electronic communications and technological innovations, and ensuring IT security, quality of service and consumer protection. The reforms carried out have not resulted in the total liberalization and deregulation of the sectors concerned, since the activities in question, while meeting the collective needs of society (citizens, social groups, businesses), are nevertheless subject to other forms of public intervention to ensure the pursuit of the general interests underlying the deregulated sectors. The “universal service rules”, for example, applied by means of public measures, help to strengthen the protection of users of public services by requiring the main operators to provide basic services to everyone, throughout the country and at reasonable prices. The universal service, in fact, acts as a corrective to market failure, introducing exceptions to the competitive regime - within the limits set out in Article 106(II) TFEU and in accordance with the conditions laid down therein - by granting special and exclusive rights to the person or persons identified for its provision. Public policy in liberalized sectors relates to subjecting liberalized activities to an administrative act to ascertain the technical capacity and reliability of economic operators; imposing public service obligations on such operators by law or on the basis of acts having the force of law; subjecting such operators to the regulatory powers of the competent administrative authorities; and identifying undertakings entrusted with the provision of universal service.

The public interest objectives underlying a given public service sector can also be pursued within the framework of a liberalized system of service management, by imposing specific legal obligations on economic operators. A company operating in a free market can freely decide whether or not to offer its services to users but, when it decides to do so, it is obliged to carry out its activity in accordance with public service obligations. In the postal sector the process of liberalization and the consequent opening of the market to competition has been gradual and progressive. The process of liberalization of the postal services market took place with the enactment of three directives: 97/67/CE, 2002/39/CE and 2008/6/CE. There are still critical points that are necessary to increase competition in the market: access to the infrastructure of the dominant national provider, maintaining the reservation on certain items and redefining the scope of the universal service. At the heart of the European debate, together with the definition of a Regulation promoting competition, is the burden of the cost of the universal postal service, which is no longer sustainable for many countries, such as Italy. In Germany and the Netherlands, expansion into the international market, through express courier services, was the solution to the crisis in the traditional sector; while in Italy and France, financial and insurance services attempted to bridge the gap of losses caused by traditional services. In Germany, universal service obligations have been radically abolished and, through full competition between market players, the provision of quality services at low tariffs has been ensured. The Italian postal services market is not fully competitive, since some market segments are affected by competitive dynamics, while others remain almost exclusively in the hands of the Universal Service Provider. The companies operating in the postal services sector are subject to the powers of the Authority (AGCom), with the task of regulating and monitoring compliance with universal service obligations. The Authorities in liberalized sectors, such as the postal services sector, are essential to ensure the correct balance between meeting users' needs, on the one hand, and competition dynamics. The Italian postal market is a unicum in Europe for two reasons: on the one hand, its small size is not such as to allow the national provider to break even in its postal operations; on the other hand, Poste Italiane S.p.A. operates in the payment instruments sector (through its BancoPosta division) which is particularly profitable.

The result is that the financial activity generates profits, which are used to finance the continuously loss- making universal postal service.

The paper will deal with the combination of regulation and competition in the postal market, with reference to European and national legislation, the intrinsic characteristics of postal services, the most relevant case studies, critical issues and prospects. [edited by Author]