Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Having regard to Directive 97/67/EC of the European Parliament and the Council of 15 December 1997 as amended concerning the common rules for the development of the internal market for postal services of the Community and the improvement of the quality of service;
Considering Directive 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and user rights in relation to electronic communications networks and services;
Considering the post and electronic communications code;
Vu la Act No. 90-568 of 2 July 1990 relating to the organization of the Public Post and Telecommunications Service, as amended by the Act No. 2005-516 of 20 May 2005 the regulation of postal activities and Act No. 2010-123 of 9 February 2010 relating to La Poste et aux activités postales, notamment son article 6;
Vu la Act No. 95-115 of 4 February 1995 modified orientation for the development and development of the territory;
Considering the communication of the European Commission on "the supervision of State aids in the form of public service compensation" No. 2005/C297/04, published in the JOCE of 29 November 2005;
Given the Minister's request for advice to industry dated July 15, 2010;
After deliberating on 22 July 2010,
To I of Article 6 of Act No. 90-568 of 2 July 1990 modified, "The Post contributes, through its network of points of contact, to the development and development of the national territory [...]".
The IV of Article 6 of Law No. 90-568 of 2 July 1990, as amended by Act No. 2010-123 of 9 February 2010, provides that "ARCEP is responsible for assessing each year the net cost of the complementary mesh to ensure the land development mission entrusted to La Poste". Section 6 states that this annual assessment is then used as a basis for the Parliament's determination of the local tax relief granted to La Poste in return for the burden that this complementary territorial mesh can represent. The role of the Authority is therefore to assess the net cost of a public service mission, with a view to setting the compensation for that mission.
The Authority is seized for advice of the draft decree provided by theArticle 6 of the Act of 2 July 1990 and called for "the method of evaluation implemented".
(a) The draft decree largely complies with the principles governing the assessment of the cost of a public service mission.
These principles are included in the European Commission's communication on "the supervision of State aids in the form of public service compensation" No. 2005/C297/04 published in JOCE on 29 November 2005. In 2008 these principles were applied in the postal sector when Directive 97/67/EC was amended. These are included in Appendix I for the cost assessment of the universal service.
With regard to these principles:
― the obligations of the operator likely to result in compensation must be precisely defined; In this regard, Article 1 of the draft decree clearly states the obligation corresponding to the planning mission of the territory ― whose cost calculation is the subject of this draft decree ― as corresponding to the mesh complementary to that resulting from the sole obligation of accessibility of the universal service, which leads to a less extensive mesh;
― Articles 2 and 3 of the draft decree refer to the method of "net costs avoided", a method dedicated to the economic plan and to which legal devices (including Directive 2002/22/EC of 7 March 2002 on universal service and user rights in relation to electronic communications networks and services and Directive 97/67/EC modified for the assessment of the burden on a universal service operator) now refer to the cost of assessing the duty
According to this method, the cost of the mission corresponds to the difference of profit between a situation where the operator carries out the mission and that (hypothetical) where it is dispensed, which is the subject of the fourth and fifth paragraphs of Article 3 of the draft decree.
(b) The draft decree ensures a good link with the accounting of La Poste without restricting itself to an accounting exercise.
Article 3 of the draft decree provides that evaluations are carried out based on the costs and revenues derived from La Poste's accounting. This provision (as opposed to the reference to an "effective operator") limits the consideration of an efficiency factor in the calculation of the cost of the obligation but allows the Authority to rely, in its assessment, on objective and measurable elements.
The "net cost" is not a balance drawn from the operator's only accounting but the result of an economic analysis that compares the profit (or loss) of this operator in the current situation with the profit that it could generate in the absence of this obligation. In calculating this difference, it is taken into account the effects on the costs of the obligation in question (in the case of a case, a mesh of points of contact more extensive than that which would be deployed in the absence of the land use planning mission) but also the additional revenue that may be generated by this complementary mesh.
Thus, the calculation of a net cost is based on accounting data, especially for the description of the current situation, but cannot be limited to a strict accounting exercise: modelling elements are indeed necessary to correctly characterize the hypothetical situation corresponding to the absence of a public service mission.
(c) The terms and conditions for the application of Article 3 require comments.
The last sentence of the fourth paragraph of Article 3 of the draft Decree states: "If there is no direct or indirect distribution factor of these common costs, they are charged proportionally to the direct and indirect costs of the activities of the contact points network. »
This formulation submits the imputation of common costs not attributable to a rule of proportionality to direct and indirect costs.
However, the common costs deemed not attributable to La Poste's accounting are, to date, a share greater than 40% of those attributed. This is very important compared to those generally observed. Thus, in the electronic communications sector, it is about 5% in the case of France Télécom for its fixed activities and of the same order for mobile phone operators.
In practice, to conduct its evaluation:
― the Authority will request from La Poste the necessary elements to identify the distribution factors;
― the Authority will of course develop a clean and complementary analysis to determine these distribution factors;
―in the event that this analysis has not been able to identify these factors, the distribution will then be proportionate to the costs already allocated, although it should be emphasized that communication No. 2005/C297/04 of the European Community refers to the principle of an "adequate contribution to common fixed costs [...]", so without limiting itself to the only rule of proportionality.
For the benefit of these observations, the Autorité makes a favourable opinion on the draft decree.
This notice will be forwarded to the Minister for Industry and published in the Official Journal of the French Republic.
Done in Paris, July 22, 2010.
The president,
J.-L. Silicani
