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Postal Act (Postgesetz, PostG)

In the version published on 22 December 1997.

Translation provided by the Federal Regulatory Authority for Telecommunications and Posts and reproduced with kind permission.

Table of Contents

Chapter I General Provisions

§ 1 Legislative Purpose
§ 2 Regulation
§ 3 Scope
§ 4 Definitions

Chapter II Licences

§ 5 Licensed Sector
§ 6 Grant of Licence
§ 7 Licence Transfer
§ 8 Licensing Costs
§ 9 Revocation of Licence
§ 10 Separation of Corporate Structures and Separate Accounting

Chapter III Universal Service

§ 11 Definition and Scope
§ 12 Safeguarding Universal Service
§ 13 Imposition of Universal Service Obligations
§ 14 Soliciting of Bids for Services
§ 15 Payment of Compensation
§ 16 Compensation Levy
§ 17 Disclosure of Sales

Chapter IV Framework Conditions Governing Postal Services

§ 18 Postal Services Ordinance

Chapter V Rates Regulation

§ 19 Rates Subject to Approval
§ 20 Criteria Applicable to Rates Approval
§ 21 Forms of and Procedure for Rates Approval
§ 22 Decisions on Rates Approval
§ 23 Divergence from Approved Rates
§ 24 Ex Post Review of Approved Rates
§ 25 Review of Rates Not Subject to Approval
§ 26 Regulatory Authority Orders Relating to Rates Approval and Rates Review
§ 27 Amendments to General Terms and Conditions Relevant to Rates

Chapter VI Provision of work sharing services, Access to PO Box Facilities and to Information on Changes of Address

§ 28 Provision of work sharing services
§ 29 Access to PO Box Facilities and to Information on Changes of Address
§ 30 Requirement to Submit Contracts
§ 31 Regulatory Authority Arbitration and Orders
§ 32 Special Control of Anti-Competitive Practices

Chapter VII Service of Documents under Public Law Regulations

§ 33 Service of Documents Requirement
§ 34 Remuneration for Service of Documents
§ 35 Liability in the Performance of Service of Documents

Chapter VIII Notification Requirement, Reporting Requirement, Liability for Damages

§ 36 Notification Requirement
§ 37 Reporting Requirement
§ 38 Liability for Damages

Chapter IX Postal Secrecy, Data Protection

§ 39 Postal Secrecy
§ 40 Communications to Courts and Public Authorities
§ 41 Data Protection
§ 42 Monitoring and Enforcing Obligations

Chapter X Postage Stamps, Regulatory Authority

§ 43 Postage Stamps
§ 44 Regulatory Authority
§ 45 Right to Information and Audits
§ 46 Ruling Chambers
§ 47 Activity Report
§ 48 Cooperation with the Federal Cartel Office

Chapter XI Administrative Fines Provisions

§ 49 Administrative Fines Provisions
§ 50 Competent Authority

Chapter XII Transitional Provisions

§ 51 Statutory Fixed-Term Exclusive Licence
§ 52 Universal Service Obligation during the Period of Validity of the Statutory Exclusive Licence
§ 53 Rates Approval during the Period of Validity of the Statutory Exclusive Licence
§ 54 Use of Postage Stamps during the Period of Validity of the Statutory Exclusive Licence
§ 55 Conveyance Prohibition Relaxation Ordinance

Chapter XIII Final Provisions

§ 56 Requirement to Give Notice of Curtailed Provision of Universal Service
§ 57 Transfer Provisions
§ 58 Entry into Force, Expiration

Chapter I General Provisions

§1 Legislative Purpose

The purpose of this Act is, through regulation of the postal sector, to promote competition and to guarantee appropriate and adequate services throughout the Federal Republic of Germany.

§2 Regulation

(1) Regulation of the postal sector shall be a sovereign task of the Federal Republic of Germany.

(2) The aims of regulation shall be:

  1. to safeguard the interests of customers and to maintain postal secrecy;
  2. to ensure equal-opportunity and workable competition, in rural as well as urban areas, in postal markets;
  3. to ensure provision throughout the Federal Republic of Germany of basic postal services (universal service) at affordable prices;
  4. to safeguard public safety interests;
  5. to meet social requirements.

(3) The Law against Restraints of Competition shall remain unaffected.

§3 Scope

The present Act shall also apply to postal traffic with other countries, unless international treaties and their implementing statutes and ordinances having the force of law provide otherwise.

§4 Definitions

For the purposes of this Act

1. Postal services as defined by this Act shall mean the following services provided on a profit-oriented basis:

a) the conveyance of letter post items;b) the conveyance of addressed parcels weighing not more than 20 kilogrammes each; or

c) the conveyance of books, catalogues, newspapers or magazines, insofar as such conveyance is effected by companies providing postal services according to a) or b) above.

2. Letter post items shall mean addressed written communications. Catalogues and publications appearing on a recurrent basis such as newspapers and magazines shall not be deemed written commmunications within the meaning of sentence 1 above. Communications not addressed to an individual by name but bearing solely a collective indication of place of residence or business shall not be deemed addressed within the meaning of sentence 1 above.

3. Conveyance shall be the collecting, forwarding or delivery of postal items to the addressee.

4. Commercial provision of postal services shall be the conveyance for other parties, on a long-term basis, of postal items with or without the intention to obtain profits.

5. Postal items shall be deemed items within the meaning of subpara 1 of this paragraph, also where they are conveyed on a commercial basis.

6. Having a dominant position in the market shall mean any company deemed as having a dominant position in the market under §22 of the Law against Restraints of Competition.

Chapter II Licences

§5 Licensed Sector

(1) Whosoever conveys for other parties, on a profit-oriented basis, letter post items weighing not more than 1000 grammes each shall require authorisation (a licence).

(2) Not requiring a licence according to (1) above shall be any person who

  1. conveys letter post items on behalf of the person granted authorisation according to (1) above, as a vicarious agent or as a person employed in the performance of its obligations;
  2. conveys letter post items enclosed with another item and relating solely to the contents of that item;
  3. conveys letter post items in such a way that individual recorded items, in the interest of rapid, reliable conveyance, are accompanied at all times on the journey from sender to addressee by a person who has access to the item at all times and who can make the necessary arrangements (courier service).

§6 Grant of Licence

(1) There shall be granted in writing by the Regulatory Authority licences upon written request. The applicant shall specify the area in which the activity subject to licence is to be carried on. Licences shall be granted unless there is a reason for denial according to (3) below. The Regulatory Authority shall decide on licence applications within a period of six weeks.

(2) The regulatory aims according to §2(2) of this Act shall be observed when licences are granted. To ensure these aims, collateral clauses may be attached to the licence even after it has been granted. If the prerequisites for a collateral clause cease to exist, the Regulatory Authority shall repeal such clause at the request of the licensee.

(3) A licence shall be denied when

  1. facts warrant the assumption that the applicant is not in possession of the efficiency, reliability or specialised knowledge required to exercise the licence rights;
  2. facts warrant the assumption that public safety or order would be endangered by the startup of an activity subject to licence;
  3. facts warrant the assumption that the applicant fails to a not inconsiderable extent to meet the basic working conditions common in the licensed sector.

Whosoever guarantees

  1. availability of the means of production for setting-up and operation necessary to exercise licence rights shall be deemed to possess the efficiency
  2. compliance, as a licensee, with the legal provisions shall be deemed to possess the reliability
  3. the necessary knowledge, experience and skills of the persons engaged in the exercise of licence rights shall be deemed to possess the specialised knowledge required according to sentence 1 subpara 1.

§7 Licence Transfer

(1) Licence transfer shall require written form and the prior consent of the Regulatory Authority. Consent shall be withheld given the constraints of §6(3) of this Act.

(2) Applicable in the case of the death of the licensee shall be §46 of the Industrial Code. Competent authority within the meaning of §46(3) of the Industrial Code shall be the Regulatory Authority. Where the business is to be continued by a representative, the Regulatory Authority shall be informed without undue delay.

(3) Where a licence is granted to a corporation, any party acquiring shares or interests in the corporation and consequently holding more than ten per cent of that corporation’s shares or interests shall notify the Regulatory Authority without undue delay.

§8 Licensing Costs

Fees and expenses shall be incurred for decisions on the grant of a licence and on consent to the transfer of a licence. Fees and expenses shall still be incurred when an application for the grant of a licence or for consent to the transfer of a licence is withdrawn after the beginning, but prior to completion, of processing. The Federal Ministry of Posts and Telecommunications shall be empowered to regulate, by ordinance not requiring the consent of the German Bundesrat and in agreement with the Federal Ministry of the Interior, the Federal Ministry of Finance, the Federal Ministry of Justice and the Federal Ministry of Economics, the level of fees in accordance with the Administrative Expenses Act.

§9 Revocation of Licence

(1) A licence may be revoked wholly or in part by the Regulatory Authority over and above the reasons cited in §49 of the Administrative Procedures Act when a licensee fails to meet its obligations arising from this Act or from an ordinance having the force of law issued by virtue of this Act.

(2) Revocation according to (1) above shall only be permitted when the licensee fails to comply within the specified period with a call from the Regulatory Authority to meet its obligations.

§10 Separation of Corporate Structures and Separate Accounting

(1) Companies having a dominant position in markets other than a postal services market shall carry on postal services by means of one or more legally independent companies invested with important entrepreneurial decision-making powers.

(2) Companies having a dominant position in a postal services market shall guarantee the transparency of financial relations between and among postal services within the licensed sector by establishing a separate accounting system. This also applies to financial relations between and among postal services in the licensed sector and postal services in the licence-exempt sector. The Regulatory Authority may prescribe the structure of internal postal services accounting.

Chapter III Universal Service

§11 Definition and Scope

(1) Universal services are a minimum set of postal services according to §4 subpara 1 of this Act, provided in specified quality throughout the Federal Republic of Germany at an affordable price. Universal service shall be limited to postal services subject to licence and to such postal services as can, at least in part, be provided using conveyance means of postal services subject to licence. It shall only include such services as are generally deemed indispensable.

(2) The Federal Government shall be empowered to define, by ordinance requiring the consent of the German Bundestag and the German Bundesrat, the content and scope of universal service in accordance with (1) above. Definition of universal services shall be adapted to technical and social developments in line with demand. In addition, there shall be determined in the above ordinance the minimum quality of service including the quality features relating to the acceptance and delivery networks (letter boxes, facilities where contracts on letter post or parcel conveyance services can be entered into and performed, letter post delivery) and to letter post conveyance times as well as the criteria governing universal service pricing. The Regulatory Authority shall be empowered to rule on compliance with these criteria. The consent of the German Bundestag shall be deemed given when the Bundestag does not withhold consent within a period of three parliamentary weeks following receipt of the submission from the Federal Government.

§12 Safeguarding Universal Service

(1) Where a universal service according to §11 of this Act is not being appropriately or adequately provided or where there is reason to believe that such will be the case, each licensee with sales in the licensed sector exceeding one million Deutschmarks in the preceding calendar year shall undertake to make a contribution in accordance with §§13 to 17 of this Act in order to facilitate provision of the relevant universal service.

(2) Para (1) above shall apply accordingly to any licensee constituting a single company with another licensee. A single company is created through any corporate linkage within the meaning of §23(1) sentence 2, (2) and (3) of the Law against Restraints of Competition.

§13 Imposition of Universal Service Obligations

(1) Where a universal service is not being appropriately or adequately provided or where there is reason to believe that such will be the case, the Regulatory Authority shall publish in its Official Gazette a statement to this effect. It shall give notice of its intention to proceed as provided for by (2) to (4) below and by §§14 to 17 of this Act unless a company declares itself willing, within a period of one month of publication of the statement, to provide the universal service without payment of compensation according to §15 of this Act.

(2) Upon expiration of the period referred to in (1) above the Regulatory Authority may oblige one of the companies designated in §12 of this Act to provide the relevant universal service. Such obligation may only be imposed on a licensee providing postal services subject to licence in the geographically relevant market or in a geographically adjacent market and having a dominant position in that market.

(3) Where several licensees jointly have a dominant position in the relevant market, the Regulatory Authority may, after hearing the eligible licensees, oblige one or more of these licensees to provide the relevant universal service. Such obligation may not unduly prejudice licensees thus obliged in relation to other licensees.

(4) Paras (2) and (3) above shall apply accordingly to any company operating in a market referred to in (2) above and constituting a single company with a licensee according to (2) or (3) above. A single company is created through any corporate linkage within the meaning of §23(1) sentence 2, (2) and (3) of the Law against Restraints of Competition.

(5) Companies called upon to provide universal services according to (2) or (3) above or according to §14(2) of this Act may be obliged by the Regulatory Authority to cooperate. §31 shall apply accordingly. The Regulatory Authority may also stipulate the terms of cooperation according to §31(2) of this Act and order that they be legally binding in cases where companies obliged fail to enter into negotiations or, in the event of failing to reach agreement, to defer to the Regulatory Authority as the arbitration body.

§14 Soliciting of Bids for Services

(1) Where a company that is to be obliged to provide a universal service under §13(2) or (3) of this Act shows sufficient cause and furnishes sufficient prima facie evidence that it would be financially prejudiced as a result of this obligation and could claim compensation under §15 of this Act, the Regulatory Authority shall solicit bids for the service concerned. The Regulatory Authority may dispense with a solicitation for bids if such solicitation does not appear appropriate.

(2) The service that is the subject of bids solicitation shall be awarded to the efficient, reliable bidder with the necessary specialised knowledge who requires the least financial compensation.

(3) Where obligation according to §13(2) or (3) of this Act is not possible, bids shall be solicited for the universal service as provided for by (1) above.

(4) Prior to soliciting bids for a universal service according to (1) or (3) above, the Regulatory Authority shall stipulate in detail which universal service will be provided in which area or in which place and according to what criteria the necessary efficiency, reliability and specialised knowledge of the bidder will be assessed. In addition, the Regulatory Authority shall stipulate detailed rules for the bidding proceeding; these rules shall be objective, comprehensible and non-discriminatory.

§15 Payment of Compensation

(1) A licensee may demand compensation from the Regulatory Authority for an obligation imposed under §13(2) or (3) of this Act when it evidences that the long-term additional costs of providing the relevant service efficiently, inclusive of adequate interest on capital employed, exceed the income from that service. The income shall be computed on the basis of the affordable prices as laid down by ordinance having the force of law according to §11(2) of this Act.

(2) Compensation will be paid at the end of the calendar year in which a deficit in providing the service has been sustained. The amount of compensation will be determined on the basis of the long-term additional costs incurred by providing the service, inclusive of adequate interest on capital employed, less the income earned from the service. Para (1) sentence 2 above shall apply accordingly in respect of computing income.

(3) In the event of bids solicitation as provided for by §14 of this Act the Regulatory Authority shall grant compensation in line with the outcome of this solicitation.

§16 Compensation Levy

(1) Where the Regulatory Authority grants compensation under §15 of this Act, any licensee having sales exceeding one million Deutschmarks in the calendar year for which compensation is to be granted shall undertake to contribute to the compensation payable by the Regulatory Authority by means of a compensation levy. The amount shall be computed according to the ratio of the licensee’s sales to the total sales of all licensees obliged under sentence 1 above. Sales within the meaning of sentences 1 and 2 above shall be solely the sales achieved within the respective licensed sector.

(2) At the end of the calendar year for which compensation is to be granted under §15 of this Act the Regulatory Authority shall determine the amount of compensation payable and the share of the contributing licensees, and notify the companies concerned accordingly. The total amount of the compensation obligations shall equal the deficit to be offset under §15(1) of this Act plus the market interest. Interest shall be payable as from the day following the end of the calendar year referred to in sentence 1 above.

(3) Companies liable to the levy shall pay to the Regulatory Authority the amount due within a period of one month of receiving notice of their particular share.

(4) In the event of a licensee obliged under (1) sentence 1 above being unable to pay the levy due, the amount owing shall be borne by the other licensees in proportion to their own particular share.

§17 Disclosure of Sales

(1) Where an obligation to provide a universal service has been imposed under §13(2) or (3) or §14 of this Act, licensees concerned shall disclose to the Regulatory Authority, upon request, annual sales in their licensed sector. If they fail to do so, the Regulatory Authority may make an estimate.

(2) §23(1) sentences 2 and 3 of the Law against Restraints of Competition shall apply accordingly with regard to establishing sales.

Chapter IV Framework Conditions Governing Postal Services

§18 Postal Services Ordinance

The Federal Government shall be empowered to specify, by ordinance having the force of law requiring the consent of the German Bundesrat, framework conditions governing the use of postal services. In particular, there shall be determined in the above ordinance regulations on the conclusion of contracts, the subject and termination of contracts as well as the rights and obligations of the contracting partners and other parties engaged in postal traffic, including liability regulations and provisions on the limitation of liability.

Chapter V Rates Regulation

§19 Rates Subject to Approval

All rates charged by a licensee in a market for postal services subject to licence shall require approval by the Regulatory Authority, provided the licensee has a dominant position in the relevant market. Sentence 1 shall not apply to rates payable for conveyance services involving a minimum mailing volume of 50 letter post items.

§20 Criteria Applicable to Rates Approval

(1) Rates subject to approval shall be based on the costs of efficient service provision and comply with the requirements of (2) below.

(2) Rates subject to approval may not

1. contain any surcharges prevailing solely as a result of the provider’s dominant position in the market;
2. contain any discounts prejudicing in anti-competitive manner the competitive opportunities of other companies in a postal services market;
3. create any advantages for individual users in relation to other users of postal services of the same type

unless a legal obligation or another objectively justifiable reason can be evidenced. Due regard shall be given in particular to the costs of observance of the basic working conditions common in the licensed sector as well as the costs of postal service provision throughout the Federal Republic of Germany and the costs incurred by staff pension payments ensuing from legal succession to Deutsche Bundespost.

(3) §11(1) and any ordinance having the force of law issued by virtue of §11(2) of this Act shall remain unaffected.

§21 Forms of and Procedure for Rates Approval

(1) The Regulatory Authority shall approve rates

1. on the basis of the costs of efficient service provision apportioned to the particular service; or
2. on the basis of the benchmarks it prescribes for the average rates of change in the rates for a basket of combined services.

(2) In the case of (1) subpara 1 above the Regulatory Authority shall examine compliance with the requirements of §20(2) subpara 1 of this Act for each separate rate. In the case of (1) subpara 2 above the requirements of §20(2) subpara 1 of this Act shall be deemed satisfied given compliance with the benchmarks specified.

(3) Rates shall not be approved when they fail to satisfy the requirements of §20(2) subpara 1 of this Act in accordance with (2) above or when they violate other legal provisions. Nor shall rates be approved when it is clear that they fail to satisfy the requirements of §20(2) subpara 2 or 3 of this Act.

(4) The Federal Government shall be empowered to issue, by ordinance not requiring the consent of the German Bundesrat, detailed provisions on the forms of approval referred to in (1) above and the conditions underpinning the Regulatory Authority decision on which of the procedures referred to in (1) above is applicable. The ordinance shall detail the procedure to be followed, notably the licensee’s obligation to submit documents, the structure of the cost statement the licensee shall draw up and the obligation of the Regulatory Authority to publish rates. Further, the components and the content of the benchmarks and baskets referred to in (1) subpara 2 above shall be determined. Sentences 1 and 2 above shall also apply to the rates review according to §§24 and 25 of this Act.

§22 Decisions on Rates Approval

(1) Applications for rates approval shall be submitted in writing. Where approval granted for a limited period expires, an application for extended approval shall be submitted at least ten weeks prior to the expiration date.

(2) The Regulatory Authority shall decide on an application for approval within a period of six weeks of receipt of the application. It may extend this by a period not exceeding four weeks by notifying the applicant accordingly. The Regulatory Authority shall decide on the application within this four-week period.

(3) The collateral clauses referred to in §36(2) of the Administrative Procedures Act may be appended to approval.

(4) Rates approved shall be published in the Official Gazette of the Regulatory Authority.

§23 Divergence from Approved Rates

(1) The licensee shall undertake to charge solely rates as approved by the Regulatory Authority.

(2) Contracts for services featuring rates other than those approved shall be effective provided that the rate approved takes the place of the rate agreed. In the absence of approved rates despite the rates being subject to approval under §19 of this Act, contracts shall be ineffective.

(3) The Regulatory Authority may prohibit execution of a contract featuring rates other than rates approved, or ineffective according to (2) sentence 2 above.

§24 Ex Post Review of Approved Rates

(1) Where the Regulatory Authority becomes aware of facts warranting the assumption that approved rates fail to comply with the criteria given in §20(2) subpara 2 or 3 of this Act, it shall initiate a review of these rates. It shall notify the company concerned in writing of such initiation.

(2) The Regulatory Authority shall take a decision within a period of two months of initiating the review.

(3) Where the Regulatory Authority establishes that rates reviewed fail to comply with the criteria given in §20(2) subpara 2 or 3 of this Act, it shall call upon the company concerned to adjust the rates to the given criteria without undue delay. Any such call shall be published in the Official Gazette of the Regulatory Authority.

(4) In the event of non-compliance with the adjustment called for by the Regulatory Authority according to (3) above the Regulatory Authority shall prohibit the practices to which objection was made and declare the rates invalid.

§25 Review of Rates Not Subject to Approval

(1) Where the Regulatory Authority becomes aware of facts warranting the assumption that rates not subject to approval charged by a provider in a market for postal services fail to comply with the criteria given in §20(2) of this Act, it shall initiate a review of these rates if the provider has a dominant position in the relevant market. It shall notify the company concerned in writing of such review. §24(2) of this Act shall apply accordingly.

(2) Where the Regulatory Authority establishes that rates fail to comply with the criteria given in §20(2) of this Act, it shall call upon the company concerned to adjust the rates to the given criteria without undue delay. Any such call shall be published in the Official Gazette of the Regulatory Authority.

(3) In the event of non-compliance with the adjustment called for by the Regulatory Authority according to (2) above the Regulatory Authority shall prohibit the practices to which objection was made and declare the rates invalid.

§26 Regulatory Authority Orders Relating to Rates Approval and Rates Review

(1) In order to approve rates under §22 of this Act or to review rates under §§24 and 25 of this Act the Regulatory Authority may order the provider to

1. give the detailed information required on the service offering, on the current and anticipated sales figures, on the current and anticipated volume of sales and costs, and on the foreseeable effect on customers and competitors;
2. make available any other documents required;
3. draw up its cost statement within a reasonable period in such a way as to enable the Regulatory Authority to obtain the cost data required.

(2) To enforce these orders, an administrative fine not exceeding one million Deutschmarks may be fixed in accordance with the Administration Enforcement Law.

(3) The Regulatory Authority may prescribe the form in which rates or changes in rates shall be published.

§27 Amendments to General Terms and Conditions Relevant to Rates

§§19 to 26 shall also apply when amendments to General Terms and Conditions result in different rates to those hitherto valid becoming applicable in relation to a particular service, although the amounts fixed as rates remain unchanged.

Chapter VI Provision of work sharing services, Access to PO Box Facilities and to Information on Changes of Address

§28 Provision of work sharing services

(1) Where a licensee has a dominant position in a market for postal services subject to licence, it shall, given demand, provide parts of its overall conveyance offering separately, if this is economically reasonable. The obligation according to sentence 1 above shall only apply in relation to another postal service provider when the requesting company does not have a dominant position in the market and when there would otherwise be undue restraints of competition in the same or another market. The licensee may refuse to provide any such work sharing service if the operational capability of its facilities or operational reliability would be endangered thereby or if, in a given instance, all available capacity for the service required is exhausted.

(2) Rates for work sharing services to be provided under (1) above shall be subject to approval according to §§19 and 20 of this Act when the work sharing services are included by the licensee obliged under (1) above in its General Terms and Conditions. Rates for offerings not included in the General Terms and Conditions shall be subject to review according to §25 of this Act. Where rates are approved according to sentence 1 or reviewed according to sentence 2 above, due regard shall be given to the pro-rata costs of the overall conveyance chain.

(3) Where a licensee according to (1) above provides parts of its overall conveyance offering separately without being obliged to do so under (1) above, (2) above shall apply accordingly.

§29 Access to PO Box Facilities and to Information on Changes of Address

(1) Where a licensee has a dominant position in a market for postal services subject to licence it shall undertake, provided demand exists, to allow in this market other postal service providers, against payment of a fee, to convey postal items to the PO box facilities it operates unless this is not objectively justified. §28(2) and (3) shall apply accordingly.

(2) Para (1) above shall apply accordingly in respect of access to information on changes of address in the possession of any licensee having a dominant position in the market.

§30 Requirement to Submit Contracts

All contracts on work sharing services according to §28 of this Act and all contracts on the shared use of PO box facilities or access to information on changes of address according to §29 of this Act shall be submitted to the Regulatory Authority by the dominant provider within a period of one month of concluding the contract.

§31 Regulatory Authority Arbitration and Orders

(1) Where a contract between a licensee obliged under §28 or §29 of this Act and a user desiring work sharing services according to §28 of this Act or shared use of PO box facilities or access to information on changes of address according to §29 of this Act fails to come about within a period of three months from the time the user first sought such contract, the parties concerned may jointly defer to the Regulatory Authority as the arbitration body.

(2) Where a contract between a licensee obliged under §28 or §29 of this Act and a user desiring work sharing services according to §28 of this Act or shared use of PO box facilities or access to information on changes of address according to §29 of this Act fails to come about within a period of three months from the time the user first sought such contract, the Regulatory Authority shall, following deference by one of the parties, stipulate within a period of two months the conditions of the contract and order validity of the same.

(3) §26(1) and (2) of this Act shall apply accordingly.

§32 Special Control of Anti-Competitive Practices

(1) The Regulatory Authority shall have, in relation to any provider having a dominant position in a postal services market, the powers referred to in (2) below, if this company abuses its dominant position. Abuse within the meaning of sentence 1 above is deemed to exist in particular when a dominant postal service provider impairs without objectively justifiable reason the competitive opportunities of other postal service providers by means of contracts on services according to §§28 and 29 of this Act.

(2) The Regulatory Authority may impose on any company violating (1) above certain practices or prohibit anti-competitive practices and declare contracts wholly or partially null and void. Prior to this, the Regulatory Authority shall call upon the company to discontinue the anti-competitive practices objected to.

Chapter VII Service of Documents under Public Law Regulations

§33 Service of Documents Requirement

(1) Any licensee providing letter post delivery services shall undertake to serve documents, irrespective of their weight, in accordance with the provisions of the relevant rules of procedure and legislation on the rules of service in administrative procedure. Sovereign powers commensurate with this obligation shall be vested in the licensee (entrepreneur charged with specific functions in the public interest).

(2) The Regulatory Authority shall exempt from the obligation according to (1) above a licensee thus obliged, upon its request, provided the licensee does not have a dominant position in the market. Exemption is ruled out if there is reason to believe that service of documents according to (1) above would no longer be ensured across the Federal Republic of Germany as a result. Exemption may be revoked if the licensee becomes dominant in the market or if the condition set forth in sentence 2 above becomes applicable. A request for exemption may be linked to an application for licence grant.

§34 Remuneration for Service of Documents

Any licensee thus obliged shall be entitled to remuneration. Remuneration shall cover all services provided by the licensee, including the sovereign functions of authentication and return of the authentication documents to the contracting office. Remuneration shall meet the criteria given in §20(1) and (2) of this Act. It shall be subject to approval by the Regulatory Authority. The Federal Ministry of Justice and the Federal Ministry of the Interior shall be informed without undue delay of any such intended approval.

§35 Liability in the Performance of Service of Documents

Liable for any damage caused by neglect of duty in the performance of service of documents shall be the licensee obliged, in accordance with the regulations governing a civil service employer’s liability for damages in the territorial area.

Chapter VIII Notification Requirement, Reporting Requirement, Liability for Damages

§36 Notification Requirement

Whosoever provides postal services not subject to licence shall notify the Regulatory Authority in writing of the startup of, changes to or termination of operations within a period of one month. The Regulatory Authority may publish in its Official Gazette notices received.

§37 Reporting Requirement

Whosoever provides postal services shall undertake to make available to the Regulatory Authority, at its request, the information it requires as the national regulatory authority to fulfil its reporting requirements in relation to the European Commission on the basis of Directives issued in accordance with Article 90(3) or Article 100a of the Treaty establishing the European Community.

§38 Liability for Damages

Whosoever intentionally or negligently violates this Act, an ordinance having the force of law issued by virtue of this Act, any obligation arising from a licence or any other Regulatory Authority order shall, to the extent that the legal provision, obligation or order aims to protect another party, be obliged to compensate that party for any damage arising from such violation.

Chapter IX Postal Secrecy, Data Protection

§39 Postal Secrecy

(1) The detailed circumstances of the postal traffic of particular natural or legal persons as well as the contents of postal items shall be subject to postal secrecy.

(2) Whosoever provides postal services on a commercial basis or assists in the provision of such services shall be obliged to maintain postal secrecy. The obligation to maintain secrecy shall endure even after termination of the activity through which such commitment arose.

(3) Any party subject to the obligation according to (2) above shall be prohibited from procuring for itself or for other parties any information regarding the contents of postal items or the detailed circumstances of postal traffic beyond that which is required for provision of the postal service(s). They may use knowledge of facts that are subject to postal secrecy solely for the purpose referred to in sentence 1 above. Use of this knowledge for other purposes, notably for passing on to other parties, shall be permitted only if this Act or another legal provision provides for such and makes explicit reference to postal items or postal traffic. The reporting requirement according to §138 of the Penal Code shall have precedence.

(4) The prohibitions of (3) above shall not apply where the acts designated therein are necessary to

  1. verify that reduced rate postal items meet the relevant pricing conditions;
  2. secure the contents of damaged postal items;
  3. establish the addressee or sender of an undeliverable postal item when this cannot be done by any other means;
  4. avert physical danger to persons or property from a postal item of mail.

Delivery of postal items to substitute addressees shall be permitted under the contractual agreement with the sender.

(5) Communications concerning a party’s postal traffic shall be permitted, provided they are required to assert in or out of court claims against this party arising in connection with the provision of a postal service, or to enable prosecution of a criminal offence committed to the detriment of a postal company during the course of post.

§40 Communications to Courts and Public Authorities

Companies and persons providing postal services on a commercial basis or assisting in the provision of such services shall inform courts and public authorities at their request of the postal address, in a form enabling correct delivery, of any party participating in postal traffic, provided this is required for purposes of postal traffic of the courts or public authorities. This shall also apply when the addressee has not given the consent required for such communication or has raised objections to communication.

§41 Data Protection

(1) The Federal Government shall issue, by ordinance having the force of law requiring the consent of the German Bundesrat, provisions on the protection of the personal data of those participating in postal traffic which govern the collection, processing and use of such data for companies providing postal services on a commercial basis or assisting in the provision of such services. These provisions shall take account of the principle of reasonableness, specifically of restricting collection, processing and use to that which is necessary, and the principle of purpose-tying. Maximum storage periods shall be laid down and overall the legitimate interests of the companies and parties concerned taken into account. Particulars of legal persons subject to postal secrecy shall be treated as equivalent to personal data. Applicable in respect of communications to the data subjects shall be §19 of the Federal Data Protection Act and applicable to the correction, blocking and erasure of data shall be §20(1) to (7) of the Federal Data Protection Act.

(2) Companies and persons providing postal services on a commercial basis or assisting in the provision of such services may, in accordance with the ordinance referred to in (1) above, collect, process and use the data of natural and legal persons insofar as this is necessary to operate their commercial postal services, that is to say

  1. to establish, frame the contents of and modify a contractual relationship;
  2. to establish traffic data for contractual purposes;
  3. to duly deliver postal items;
  4. to duly establish, perform accounting, evaluate and verify rates chargeable for commercial postal services.

Under the powers according to sentence 1 above the collection, processing and use of data relating to the contents of postal items shall not be permitted.

(3) The companies and persons referred to in (2) above may process and use personal data they have collected for establishment, framing the contents or modification of a contractual relationship insofar as this is required for their own purposes of advertising, customer consulting or market research for the companies or persons referred to in (2) above and the customer has given their consent. Personal data on customers already collected by the companies and persons referred to in (2) above at the time of entry into force of this Act may be processed and used for the purposes referred to in sentence 1 above unless the customer raises objections. Consent is deemed given if the customer has been adequately informed of their right of objection but has not made use of this right.

(4) The commercial provision of postal services and their pricing shall not be made conditional upon the indication of personal data not required for the provision or pricing of these services. Insofar as the companies referred to in (2) above make the processing or use of a customer’s personal data conditional upon consent, they shall inform the customer appropriately of the content and scope of such consent. The intended purpose and the period of use shall be stated. Consent shall be expressly given and, as a rule, in writing. Where consent is to be given by electronic means, provision shall be made for an appropriate revocation period.

§42 Monitoring and Enforcing Obligations

(1) The Regulatory Authority may issue orders to ensure observance of the duties specified in §§33 and 39 to 41 of this Act and of the ordinance having the force of law issued by virtue of §41(1) of this Act. It may request from a party obliged the information it requires to monitor such, and check compliance with the regulations on the production sites and business premises of the party obliged. For this purpose the Regulatory Authority may request access during normal business and working hours to the production sites and business premises of the party obliged.

(2) Where the Regulatory Authority establishes non-compliance in a company with §§33 and 39 to 41 of this Act and with the ordinance having the force of law issued by virtue of §41(1) of this Act it may prohibit wholly or in part the further commercial provision of postal services, if more lenient action fails to bring about lawful conduct. The Regulatory Authority shall also have these powers when a company fails to meet its obligations as referred to in (1) above despite repeated calls to do so. §9 shall remain unaffected.

(3) Inasfar as data on natural or legal persons is collected, processed or used for the provision of postal services on a commercial basis, monitoring of these companies shall be performed by the Federal Commissioner for Data Protection as provided for by §§21 and 24 to 26(1) to (4) of the Federal Data Protection Act in place of supervision under §38 of the Federal Data Protection Act. Para (1) sentence 3 above shall apply accordingly. The Federal Commissioner for Data Protection shall direct his complaints to the Federal Ministry of Posts and Telecommunications and communicate to that authority further results of his monitoring after due assessment of the circumstances.

(4) The Regulatory Authority according to (1) and the Federal Commissioner for Data Protection and the Federal Ministry of Posts and Telecommunications according to (3) above may, by means of information and monitoring, obtain knowledge of the detailed circumstances of the postal traffic of certain persons, to the extent required to discharge their particular supervisory functions. Postal secrecy according to Article 10 of the Constitution (Basic Law) shall be restricted in this regard.

Chapter X Postage Stamps, Regulatory Authority

§43 Postage Stamps

(1) The authority to issue and declare invalid postage stamps bearing the inscription “Deutschland” shall be reserved to the Federal Ministry of Posts and Telecommunications. Pictorial reproductions of such stamps shall not be permitted if the reproductions are capable of being mistaken for the originals.

(2) Reproduction and use of postage stamps issued by the Federal Ministry of Posts and Telecommunications as payment for postal services shall require the permission of the said authority. The Federal Ministry of Posts and Telecommunications shall levy fees and recover expenses from postal service providers in connection with such decisions on permission. Fees and expenses shall also be incurred when a request for permission is withdrawn after the beginning, but prior to completion of, processing. The Federal Ministry of Posts and Telecommunications shall be empowered to regulate the level of these fees by ordinance having the force of law not requiring the consent of the German Bundesrat and in agreement with the Federal Ministry of Finance.

§44 Regulatory Authority

Regulatory Authority within the meaning of this Act shall be the authority established on the basis of Part X of the Telecommunications Act of 25 July 1996 (Federal Law Gazette I
p 1120). §§66 to 71, 74 to 81, 83 and 84 of the Telecommunications Act shall apply accordingly.

§45 Right to Information and Audits

(1) Where necessary to discharge the functions assigned to the Regulatory Authority under this Act, the Regulatory Authority may

  1. request information from companies and associations of companies engaged in posts on their financial situation, notably sales figures;
  2. inspect and audit, within normal business hours, the business records of companies and associations of companies engaged in posts.

(2) The Regulatory Authority shall issue a written order requesting information according to (1) subpara 1 above or an audit according to (1) subpara 2 above. There shall be stated in the order the legal basis, subject matter and purpose of the request for information or audit. With regard to information requests there shall be determined in the order a reasonable period for provision of the information and with regard to audits the date and time of the audit.

(3) Owners of companies or their representatives or, in the case of legal persons, corporations or associations without legal capacity, those appointed representatives by law or by the statutes shall undertake to provide information requested, to submit business records, to acquiesce in the audit of the same and to allow during normal business or working hours access to business offices and premises.

(4) §72(4) to (10) of the Telecommunications Act shall apply accordingly.

§46 Ruling Chambers

(1) In the cases of §§13 and 14 and §§19 to 32 the Regulatory Authority shall take decisions through the agency of Ruling Chambers.

(2) In the cases of §§13 and 14 the Ruling Chamber shall take decisions in the composition of President as Chairman and the two Vice Presidents as assessors. Any such decision shall be taken in consultation with the Advisory Council.

(3) §73(1) sentences 2 and 3, (2) and (3) sentence 2 and (4) of the Telecommunications Act shall apply accordingly. In the case of (2) sentence 1 §73(4) of the Telecommunications Act shall not apply accordingly.

§47 Activity Report

(1) The Regulatory Authority shall submit to the legislative bodies of the Federal Republic of Germany every two years a report on its activity and on the situation in and development of the postal sector. This report shall also comment on the questions as to whether modification of the determination which postal services are deemed universal services within the meaning of §11 of this Act is recommended and whether, and if so, up to which point in time and to what extent maintenance of an exclusive licence according to §51 of this Act beyond the date set forth therein is required. The Federal Government shall submit to the legislative bodies of the Federal Republic of Germany its comments on this report within a reasonable period of time.

(2) The Regulatory Authority shall publish in its Official Gazette the principles of its administration, in particular those related to licence grant and the determination of licence requirements.

§48 Cooperation with the Federal Cartel Office

The Regulatory Authority shall take decisions in agreement with the Federal Cartel Office concerning definition of the relevant product and geographical markets and determination of a dominant position within the scope of this Act. Where the Regulatory Authority takes decisions under Chapters 5 and 6 of this Act it shall give the Federal Cartel Office the opportunity to make comments prior to completion of the procedure. §82 sentences 4 to 6 of the Telecommunications Act shall apply accordingly.

Chapter XI Administrative Fines Provisions

§49 Administrative Fines Provisions

(1) An administrative offence shall be deemed committed by any person who, intentionally or negligently,

1. conveys a letter post item without authorisation according to §5(1) of this Act;2. in contravention of §10(1) or (2) sentence 1 or 2 of this Act fails to carry on postal services in legally independent companies or fails to guarantee transparency of financial relations or fails to provide such transparency in the prescribed manner;

3. contravenes an enforceable order according to §13(2) sentence 1 of this Act, (3) sentence 1, (5) sentence 1, §23(3), also in conjunction with §27, §24(4), §25(3), §31(2) or §32(2) sentence 1 of this Act;

4. in contravention of

a) §17(1) sentence 1, or
b) §56 of this Actfails to disclose or notify, or fails to disclose or notify correctly, completely or in time;

5. charges rates in the absence of approval according to §19 of this Act;6. in contravention of §30 of this Act fails to submit a contract, fails to submit a contract correctly, completely or in time;

7. in contravention of §36 sentence 1 of this Act fails to notify, fails to notify correctly, completely, in the prescribed manner or in time;

8. in contravention of §37 of this Act fails to make information available, fails to make information available correctly, completely or in time; or

9. in contravention of §43(1) sentence 2 of this Act makes a pictorial reproduction of a postage stamp in a manner capable of causing mistaken identity.

(2) Such offences may be punishable by a fine not exceeding one million Deutschmarks in the cases of an offence according to (1) subparas 1, 2, 3, 4b and 5 above, or by a fine not exceeding one hundred thousand Deutschmarks in the cases of an offence according to (1) subparas 6 and 9 above or by a fine not exceeding twenty thousand Deutschmarks in all other cases.

§50 Competent Authority

Administrative authority within the meaning of §36(1) subpara 1 of the Administrative Offences Act shall be the Regulatory Authority.

Chapter XII

§51 Statutory Fixed-Term Exclusive Licence

(1) For the period ending 31 December 2002 Deutsche Post AG shall have the exclusive privilege to convey, on a profit-oriented basis, letter post items and addressed catalogues weighing not more than 200 grammes each and costing not more than five times the rate applicable on 31 December 1997 for appropriate postal items in the lowest weight category (statutory exclusive licence). Sentence 1 above shall not apply in relation to

  1. the conveyance of letter post items having identical contents weighing more than 50 grammes, the sender mailing a minimum of 50 items;
  2. the conveyance of letter post items delivered by the sender in a document exchange and collected by the addressee from the same or another document exchange of the same service provider, sender and addressee using this service under a contract for the performance of a continuing obligation (document exchange service);
  3. the conveyance of letter post items not subject to licence under §5(2) of this Act;
  4. services distinct from universal services, having special features and higher quality;
  5. any person collecting from the sender and mailing at the nearest Deutsche Post AG acceptance office or at another Deutsche Post AG acceptance office within the same community letter post items on behalf of the sender;
  6. any person collecting from Deutsche Post AG PO box facilities and delivering to the addressee letter post items on behalf of the addressee;
  7. any person charged with providing a universal service by virtue of bids solicitation according to §14 of this Act, to the extent of the universal service thus conferred.

(2) Letter post items shall still be deemed as having identical contents within the meaning of (2) subpara 1 above when they differ in respect of

  1. the inner address, provided it is the same as the outer address;
  2. the salutation;
  3. a maximum of ten classification criteria such as numbers (also in the form of numerals), letters and other characters, no words however, except for product and country designations, amounts in Deutschmarks in the case of straightforward offers only;
  4. code and control characters;
  5. date and place of dispatch;
  6. details of sender;
  7. one or more signatures.

§52 Universal Service Obligation during the Period of Validity of the Statutory Exclusive Licence

§13(2) and (3) of this Act shall apply until 31 December 2002 on condition that such obligation may be imposed solely on Deutsche Post AG.

§53 Rates Approval during the Period of Validity of the Statutory Exclusive Licence

For the period ending 31 December 2002 §19 sentence 2 shall not apply to the conveyance of letter post items under the exclusive licence according to §51 of this Act.

§54 Use of Postage Stamps during the Period of Validity of the Statutory Exclusive Licence

Solely Deutsche Post AG shall be entitled for the period ending 31 December 2002 to use postage stamps issued by the Federal Ministry of Posts and Telecommunications under §43 of this Act.

§55 Conveyance Prohibition Relaxation Ordinance

The Federal Ministry of Posts and Telecommunications shall be empowered to relax, by ordinance having the force of law requiring the consent of the German Bundesrat, the conveyance prohibition ensuing from §51 of this Act in order to carry out market surveys and to test new services. Relaxation according to sentence 1 above shall not be permitted if it would result in financial disadvantage for Deutsche Post AG such that compliance with obligations imposed by this Act or by virtue of this Act was endangered.

Chapter XIII Final Provisions

§56 Requirement to Give Notice of Curtailed Provision of Universal Service

Where Deutsche Post AG has hitherto provided universal services as defined in an ordinance having the force of law issued under §11(2) of this Act and intends in future to discontinue provision of, to discontinue full provision of or to provide such services on less favourable terms than those specified in the above ordinance, it shall notify the Regulatory Authority accordingly six months prior to the beginning of such curtailment.

§57 Transfer Provisions

(1) Any exemption granted under §2(4) sentence 1 of the Postal Law as published on 3 July 1989 (Federal Law Gazette I p 1449) or under §2(5) sentence 1 of the Postal Law as published in Article 6 of the Posts and Telecommunications Reorganisation Act of 14 September 1994 (Federal Law Gazette I p 2325) shall remain effective until the end of the period of validity specified in the exemption notice but not longer than 31 December 2007. An exemption shall, in accordance with and to the extent of its content, take the place of a licence granted under this Act. Where the entitled party applies for a licence under this Act, the exemption granted under §2 of the Postal Law and related requirements shall become ineffective upon grant of the licence.

(2) Approval of such Deutsche Post AG rates as are subject to approval shall be effected during the period ending 31 December 1997 in accordance with the Telecommunications and Posts Regulation Act of 14 September 1994 (Federal Law Gazette I pp 2325 and 2371). Approval granted prior to 1 January 1998 shall remain effective until the end of the period of validity specified in the approval notice but not longer than 31 December 2002.

(3) Tasks assigned to the Regulatory Authority under this Act shall be performed by the Federal Ministry of Posts and Telecommunications until such time as establishment of the Regulatory Authority.

§58 Entry into Force, Expiration

(1) §8 sentence 3, §11(2), §21(4) and §57(3) of this Act shall enter into force on the day following their promulgation. In all other respects this Act shall enter into force on 1 January 1998.

(2) At the year ending 31 December 1997 there shall expire

    1. the Ordinance Regulating Mandatory Services Provided by Deutsche Bundespost POSTDIENST of 12 January 1994 (Federal Law Gazette I p 86);
    2. the Posts Customer Protection Ordinance of 19 December 1995 (Federal Law Gazette I p 2016);
    3. the Ordinance concerning the Granting of Exemptions in Markets Opened to Bulk Mail in the Postal Sector of

 

    19 December 1995 (Federal Law Gazette I p 2088);

  1. the Ordinance concerning Fees for the Exemption from the Conveyance Proviso of 19 December 1995 (Federal Law Gazette I p 2091);
  2. the 1000 Gramme Exemption Ordinance of 3 December 1996 (Federal Law Gazette I p 1832);
  3. the Minimum Price Exemption Ordinance of 26 February 1997 (Federal Law Gazette I p 426).

 

 

The above translation was published by the Federal Regulatory Authority for Telecommunications and Posts. Reproduced with kind permission. This HTML edition by Lawrence Schäfer and © 2001 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

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