Article 4
This Decision is addressed to the Italian Republic. Done at Brussels, 21 December 2000. For the Commission Mario Monti Member of the Commission (1) Legislative Decree No 261 of 22 July 1999, published in Gazzetta uffciale della Repubblica italiana, serie generale, No 182. (2) Gazzetta Ufficiale della Repubblica italiana No 184, 8 August 1987. (3) Gazzetta Ufficiale della Repubblica italiana No 165, 15 July 1988. (4) Gazzetta Ufficiale della Repubblica italiana No 218, 18 September 1990. (5) Law No 662 of 23 December 1996, published in Gazzetta Ufficiale della Repubblica italiana No 303. (6) The priority letter service was introduced by a Ministerial Decree of 24 May 1999, published in Gazzetta Ufficiale della Repubblica italiana, serie generale No 128, 3 June 1999. (7) See Case C-18/88 Régie des télégraphes et des téléphones v GB-Inno [1991 ] ECR I-5941, Point 20 and Case C-320/91 Corbeau [1993] ECR I-2533, Point 12. (8) Case T-266/97, Vlaamse Televisie Maatschappij NV, Point 75. (9) Conclusions of Advocate General Mischo, presented on 19 October 2000 in Case C-163/99, Portuguese Republic v. Commission, Point 46. See also Case C-202/88, France/Commission, [1991] ECR I-1223. (10) Joined Cases C-48/90 et C-66/90, Netherlands./.Commission, [1992] ECR I-627, Points 33-35. (11) Joined Cases C-48/90 et C-66/90, Netherlands./.Commission, [1992] ECR I-627, Points 33-35 and Point 37. (12) Joined Cases C-48/90 et C-66/90, Netherlands./.Commission, [1992] ECR I-627, Points 33-35 and Point 37. (13) The conventional delivery service also does not offer the above mentioned variants of these two key guarantees such as: 1. a service providing for day or time-certain delivery according to a day or time sequence determined by the customer: 2. day-certain delivery to (one or several) alternative destinations, in case delivery at the first chosen location is unsuccessful. As these features are variations of the key features, that is day- or time-certain delivery, their presence, in addition to day- or time-certain delivery, is not a prerequisite in order to distinguish conventional from non-conventional delivery services. (14) As mentioned above, the following features are usually associated with the day- or time-certain delivery service: 1. tracking and tracing throughout the electronic and physical delivery phase; 2. electronic reporting on successful delivery at either the pre-arranged day or at the pre-arranged time; 3. electronic records of these delivery reports; 4. electronic reporting on failed deliveries; 5. the attempt to locate the customer at his new address; and 6. constant updating of customer-specific mailing lists. Sometimes the verification of the addressees' response (e.g. collection of payment upon receipt of a notice of payment for insurance premiums) is also offered. While these additional service features are usually associated with day- and time-certain deliveries, their presence is not a prerequisite in order to distinguish the conventional from the non-conventional delivery service. (15) See submissions by Poste Italiane of 15 November 2000, p. 7. (16) Annex 2 to Poste Italiane's submission of 11 October 2000, p. 2. (17) Annex 2 to Poste Italiane's submission of 11 October 2000, p. 2. (18) Annex 3 of Poste Italiane's submission of 11 October 2000 and p. 4, footnote 1, of Poste Italiane's submission of 28 October 2000. (19) Annex 3 of Poste Italiane's submission of 11 October 2000, p. 3. Poste Italians itself states that this service is not universal. (20) Annex 1 of Poste Italiane's submission of 28 October 2000, p. 4. (21) The Italian Government itself states that postal services are inherently based on delivery targets but not on contractual guarantees. No bank would be interested in a guaranteed time or day-certain delivery service. (22) Annex 2 of Poste Italiane's submission of 11 October 2000, p. 1. (23) See Case C-320/91 Corbeau [1993] ECR, Point 9. (24) See Cases C-41/90 Höfner [1991 ] ECR I-1979, Point 28, and C-260/89 ERT [1991 ] ECR I-2925, Point 31. (25) See Case C-320/91 Corbeau, ECR 1993, I-2533, Point 19. (26) See Case 311/84 CBEM [1985] ECR 3261. (27) See Case C-18/88 Régie des télégraphes et des téléphones v GB-Inno [1991] ECR I-5941, Point 24. (28) In its submission of 11 October 2000, PI questions whether there is demand for day- or time-certain deliveries and consequently whether there is a market for these services. According to PI, banks or insurance companies do not demand time-certain deliveries but cheap deliveries (Annex 2 of the submission of 11 October 2000, p. 1 and 2). Furthermore, in Annex 3 of its submission of 11 October 2000, PI submits a list of all the delivery services (reserved and non-reserved) it provides. Day- and time-certain deliveries are not contained in this list. (29) See Case C-41/90 Höfner [1991] ECR I -1979, Point 31. (30) Submissions by the Italian Government of 26 July 2000, pp. 19-21. Submission of Poste Italiane of 14 July, p. 92 to 99, submission of Poste Italiane of 11 October 2000, p. 1 and 2, and submission of Poste Italiane of 15 November 2000, p. 23. (31) Submissions of the Italian Government of 26 July 2000, p.11. Submission of Poste Italiane of 11 October 2000, point C, p. 3, and point F, p. 4, and submission of Posts Italians of 14 July, points 95 and 96. (32) See the list of Posts Italiane's (reserved and non-reserved) services as submitted at Annex 3 of its submission of 11 October 2000.