|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
Table of Contents
Chapter I General Provisions
§ 1 Legislative PurposeChapter II Licences
§ 2 Regulation
§ 3 Scope
§ 4 Definitions
§ 5 Licensed SectorChapter III Universal Service
§ 6 Grant of Licence
§ 7 Licence Transfer
§ 8 Licensing Costs
§ 9 Revocation of Licence
§ 10 Separation of Corporate Structures and Separate Accounting
§ 11 Definition and ScopeChapter IV Framework Conditions Governing Postal Services
§ 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
§ 18 Postal Services OrdinanceChapter V Rates Regulation
§ 19 Rates Subject to ApprovalChapter VI Provision of work sharing services, Access to PO Box Facilities and to Information on Changes of Address
§ 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
§ 28 Provision of work sharing servicesChapter VII Service of Documents under Public Law Regulations
§ 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
§ 33 Service of Documents RequirementChapter VIII Notification Requirement, Reporting Requirement, Liability for Damages
§ 34 Remuneration for Service of Documents
§ 35 Liability in the Performance of Service of Documents
§ 36 Notification RequirementChapter IX Postal Secrecy, Data Protection
§ 37 Reporting Requirement
§ 38 Liability for Damages
§ 39 Postal SecrecyChapter X Postage Stamps, Regulatory Authority
§ 40 Communications to Courts and Public Authorities
§ 41 Data Protection
§ 42 Monitoring and Enforcing Obligations
§ 43 Postage StampsChapter XI Administrative Fines Provisions
§ 44 Regulatory Authority
§ 45 Right to Information and Audits
§ 46 Ruling Chambers
§ 47 Activity Report
§ 48 Cooperation with the Federal Cartel Office
§ 49 Administrative Fines ProvisionsChapter XII Transitional Provisions
§ 50 Competent Authority
§ 51 Statutory Fixed-Term Exclusive LicenceChapter XIII Final Provisions
§ 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
§ 56 Requirement to Give Notice of Curtailed Provision of Universal Service
§ 57 Transfer Provisions
§ 58 Entry into Force, Expiration
(2) The aims of regulation shall be:
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;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.
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.
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.
(2) Not requiring a licence according to (1) above shall be any person who
(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
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(2) §23(1) sentences 2 and 3 of the Law against Restraints of Competition shall apply accordingly with regard to establishing sales.
(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;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.
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
(3) §11(1) and any ordinance having the force of law issued by virtue of §11(2) of this Act shall remain unaffected.
1. on the basis of the costs of efficient service provision apportioned to the particular service; or(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.
2. on the basis of the benchmarks it prescribes for the average rates of change in the rates for a basket of combined services.
(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.
(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.
(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.
(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.
(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.
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) To enforce these orders, an administrative fine not exceeding one million Deutschmarks may be fixed in accordance with the Administration Enforcement Law.
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.
(3) The Regulatory Authority may prescribe the form in which rates or changes in rates shall be published.
(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.
(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.
(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.
(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.
(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.
(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
(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.
(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
(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.
(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.
(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.
(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.
(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.
(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.
1. conveys a letter post item without authorisation according to §5(1) of this Act;(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.
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 ofa) §17(1) sentence 1, or5. charges rates in the absence of approval according to §19 of this Act;
b) §56 of this Act
fails to disclose or notify, or fails to disclose or notify correctly, completely or in time;
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) 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.
(2) At the year ending 31 December 1997 there shall expire
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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.