Updated: Sept. 25, 2012 (Initial publication: March 2, 2010)

Sectorial Analysis

Marie-Anne Frison-Roche, Director of the Regulatory Law Review (RLR)

II-2.1 : The Law of 9 February 2010 transforms state-owned La Poste into a Public Limited Company and expands its public service obligations.

by Marie-Anne Frison-Roche

http://www.thejournalofregulation.com/spip.php?article138

Main information

The Law of 9 February 2010 transforms the status of La Poste (the French Postal Service) into a Public Limited Company ({Société Anonyme}) from 1st March 2010 and organises postal activities, especially as relates to national and regional development programmes.

Context and Summary

 

The validation by the Conseil constitutionnel (French Constitutional Council) of Law n° 2010-123 of 9 February 2010 concerning the state-owned company La Poste (the French Postal Service) and postal activities, confirms the transformation of La Poste, previously a state-owned company, into a public limited company whose capital is 100% state-owned, on 1st March 2010.
This change does not modify the nature of La Poste’s universal postal service obligations, but rather requires a modification of the status of the Public Limited Company in order to comply with the responsibilities of being the universal postal service provider. These responsibilities are, on one hand, (i) universal postal service, (ii) contribution to national and regional development, (iii) transport and distribution of newspapers and periodicals, (iv) accessible banking services, and on the other hand, collection, sorting, transport, and distribution of letters. Therefore, La Poste will benefit from derogation from certain provisions of the French Commercial Code relating to the status of Public Limited Companies, in order to enable compliance with the aforementioned responsibilities.
 
The difficulty of the change in the status of La Poste crystallises around the issue of access to postal services, and of the cost engendered by responsibilities for national and regional development. The manner in which these costs will be subsidised is set out in Article 3 of the law. The maintenance of a national postal network is financed by a fund named Fonds postal de péréquation territoriale (Postal Network Subsidy Fund), managed by La Poste according to principles defined in a contract called contrat pluriannuel de la présence postale territoriale (pluriannual contract for continuous national postal service). This fund is to be financed by the local tax relief from which the Post benefits, pursuant to the third indent of the second part of Article 1635 sexies of the French General Tax Code. Therefore, the Autorité de régulation des communications électroniques et des postes – ARCEP (The French telecommunications and posts regulator) will perform a yearly estimate of the additional cost incurred as a result of maintaining a universal postal network in accordance with La Poste’s responsibility for contributing to national and regional development. It will transmit a report to the Government and to the Parliament each year on the net cost of universal postal service maintenance, which will permit, if necessary, a reappraisal of the tax relief granted.

Brief commentary

Pursuant to the Postal Directive of 1997, universal postal service is defined as “the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users." Member States shall therefore take steps in order to ensure "the density of the points of contact and of the access points takes account of the needs of users," and to take measures in order to guarantee “every working day and not less than five days a week" at least "one clearance" and "one delivery to the home or premises of every natural or legal person" save under circumstances or geographical conditions deemed exceptional by the national regulatory authorities.
Logically, La Poste was designated by the law n°99-533 of 25 June 1999 as the universal postal service provider in France and thereby “contributes to social cohesion and balanced national and regional development.” Universal postal service is to be provided in respect of “the principles of equality, continuity, and adaptability, while striving for the best economic and social efficiency. It ensures all users, anywhere in the country, permanent access to postal services complying with defined quality standards. These services are provided at reasonable prices for all users.”
Thus, La Poste's missions are not modified by this change of status, but it must be noted that, as a result, the missions of the Autorité de Régulation des Communications Electroniques et des Postes (ARCEP, French Telecommunications and Posts Regulator) have been tacitly enlarged: a monitoring authority since its creation in 2001, the ARCEP's powers now englobe national and regional development. However, the ARCEP is essentially an economic regulator, whereas national and regional development is an eminently political issue. Consequently, there might be a discrepancy between these new missions and the inherent nature of the ARCEP, initially created to foster undistorted competition in the postal services market.
At the core of this system is a contract and taxation: the tools used by the State to negociate the fulfilment of its public interest objectives with La Poste. This ‘contractualisation’ of State intervention is perceived by some as a privatisation of the State, and by others as an efficient means of intervention.

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