As the Federal Network Agency has, on several occasions in the past, had to object to Deutsche Post AG’s charges on the grounds that they contravened postal law, the Monopolies Commission proposes strengthening the supervision of abuse of a dominant position in order to better ensure a level playing field in competition amongst postal service providers. In the Monopolies Commission’s view, the Federal Network Agency should be granted more extensive rights to information under the Postal Services Act; claims for damages by market participants in the event of competition law infringements and higher fines should be introduced; and the possibility of recouping benefits derived from abusive conduct should be enshrined in law. In particular, these measures are intended to prevent Deutsche Post AG from making it more difficult for smaller letter service providers to enter the market and acquire customers through anti-competitive ‘price dumping’.
However, the Monopolies Commission does not expect the competitive situation in the letter markets to change significantly in the short term. To protect consumers, it therefore remains essential to retain the regulation of retail tariffs and also the current licensing requirement for letter postage.
The Monopolies Commission reiterates its recommendation that tariff regulation and the authorisation procedures for letter postage be structured on a cost-oriented basis, and that the ‘reasonable profit margin’ be determined on the basis of the business risk to which Deutsche Post AG is exposed in the letter market. Currently, the returns on turnover of structurally comparable foreign postal operators, which are also subject to little or no competition, are used as a basis. In March 2019, during the ongoing authorisation procedure for letter postage rates, the Federal Government amended the Postal Tariff Regulation, with the result that Deutsche Post AG was permitted to implement higher postage adjustments. The Monopolies Commission takes a critical view of such regulatory changes during an ongoing tariff regulation procedure.
As the number of consumer complaints regarding the loss, damage or late delivery of letters and parcels has risen noticeably since 2017, a functioning complaints management system within companies – ideally structured by law – and the conciliation procedure at the Federal Network Agency are becoming increasingly important. A conciliation procedure is free of charge for consumers, faster and less burdensome than seeking judicial redress for the often minor claims of postal customers. As Deutsche Post AG and other postal service providers have so far refused to participate in conciliation proceedings, the legislator should make their participation mandatory under the Postal Services Act. Experience in other sectors shows that binding conciliation proceedings lead to high settlement rates.
