Communications Regulation (Postal Services) Act 2011

PART 1 Preliminary

1.. Short title, collective citation and construction.

1.— (1) This Act may be cited as the Communications Regulation (Postal Services) Act 2011.

(2) The Communications Regulation Acts 2002 to 2010 and this Act (other than sections 62 to 65 and Part 4) may be cited together as the Communications Regulation Acts 2002 to 2011 and shall be read together as one.

2.. Definition.

2.— In this Act, “Minister” means the Minister for Communications, Energy and Natural Resources.

3.. Expenses.

3.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

4.. Repeals and revocations.

4.— (1) The enactments specified in Part 1 of Schedule 1 are repealed to the extent specified in column (4) of that Part.

(2) The statutory instruments specified in Part 2 of Schedule 1 are revoked to the extent specified in column (4) of that Part.

5.. Amendments to other enactments.

5.— The enactments specified in Schedule 2 are amended to the extent specified in column (4) of that Schedule.

PART 2 Regulation of Postal Services

Chapter 1

6.. Interpretation (Part 2).

6.— (1) In this Part—

“access point” means any box, receptacle or other facility, including post boxes, provided for the public either on the public road or at a post office, where postal packets, or any class of postal packets, may be deposited with a postal service provider by senders for transmission by post;

“Act of 1983” means the Postal and Telecommunications Services Act 1983;

“authorisation” means an authorisation to provide a postal service pursuant to section 38;

“addressee”, in relation to a postal packet, means the person to whom it is addressed;

“clearance” means the operation of collecting postal packets by a postal service provider for transmission, including to places outside the State;

“Commission” means Commission for Communications Regulation;

“cross-border mail” means mail from or to another Member State or from or to a third country;

“Directive” means Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended;

“distribution” means the process from sorting of postal packets at the distribution centre to delivery of postal packets to their addressees;

“enactment” has the meaning assigned to it by the Interpretation Act 2005;

“mail bag” includes any form of container or covering in which postal packets in the course of transmission by post are enclosed by a postal service provider for the purpose of conveyance, whether or not it contains any such postal packets;

“post box” means any receptacle provided by a postal service provider for the purpose of receiving postal packets, or any class of postal packets, for transmission by post;

“post office” includes any house, building, room or place used, whether exclusively or otherwise, for the provision of a postal service by a postal service provider;

“postage” means the sum chargeable for the transmission of postal packets;

“postal network” means the system of organisation and resources of all kinds used by a universal postal service provider for the purposes, in particular, of—

(a) the clearance of postal packets,

(b) the routing and handling of those postal packets from the access point to the distribution centre, and

(c) the distribution to the addresses shown on postal packets;

“postal packet” means an item addressed in the final form in which it is to be carried by a postal service provider and includes a letter, parcel, packet or any other article transmissible by post;

“postal service provider” means any person providing one or more than one postal service;

“postal services” means services involving the clearance, sorting, transport and distribution of postal packets;

“postal service user” means any person benefiting from postal service provision as a sender or as an addressee;

“postal service within the scope of the universal postal service” shall be read in accordance with section 37;

“Principal Act” means the Communications Regulation Act 2002;

“public road” has the same meaning as in section 2 of the Roads Act 1993;

“publish” means make available to the public;

“quality of service standards” has the meaning given to it by section 32;

“sender” means a person responsible for originating postal packets;

“sharing mechanism” shall be read in accordance with section 36;

“statutory auditor” has the meaning assigned to it by the European Communities (Statutory Audits) (Directive 2006/43/EC) Regulations 2010 (S.I. No. 220 of 2010);

“statutory audit firm” has the meaning assigned to it by the European Communities (Statutory Audits) (Directive 2006/43/EC) Regulations 2010 (S.I. No. 220 of 2010);

“terminal dues” means the remuneration of a universal postal service provider for the distribution of incoming cross-border mail comprising postal packets from another Member State or from a third country;

“universal postal service” shall be read in accordance with section 16;

“universal postal service provider” means any postal service provider for the time being designated under section 17or18.

(2) A word or expression used in this Part and in the Directive or, as the case may be, in Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, has, unless the contrary intention appears, the same meaning in this Part as in the Directive or, as the case may be, in Directive 2008/6/EC.

(3) For the purposes of this Part—

(a) a postal packet shall be deemed to be in the course of transmission by post from the time of its being presented at an access point to the time of its being delivered,

(b) the delivery of a postal packet of any description to any person authorised to receive postal packets of that description for the post shall be a delivery to a post office, and

(c) the delivery of a postal packet—

(i) at the premises to which it is addressed or redirected, unless the premises are a post office from which the postal packet is to be collected,

(ii) to any box or receptacle to which the occupier of those premises has agreed that postal packets addressed to persons at those premises may be delivered, or

(iii) to the addressee or to the addressee’s agent or to any other person considered to be authorised to receive the postal packet,

shall be a delivery to the addressee.

7.. Service of notices under this Part.

7.— (1) Subject to subsection (3), a notice or notification required to be given to a person by the Commission by or under this Part, shall be addressed to the person by name and shall be given to the person in one of the following ways—

(a) by delivering it to the person,

(b) by leaving it at the address at which the person ordinarily resides or carries on business,

(c) by sending it by post in a prepaid registered letter addressed to the person at the address at which he or she ordinarily resides or carries on business,

(d) if an address for the service of notices or notifications has been furnished by the person, by leaving it at, or sending it by prepaid registered post addressed to the person to, that address,

(e) where there is a facility for receiving a copy of the notice or notification by electronic mail or a facsimile of the notice or notification by electronic means at the address at which the person ordinarily resides or carries on business, by sending a copy of the notice or notification by electronic mail or a facsimile of the notice or notification by such means to that address, provided that the notice is also served or given in any of the other ways referred to in this subsection other than this paragraph.

(2) For the purposes of this section, a company registered under the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

(3) Subsection (1) shall not apply to a notification made by the Commission under—

(a) section 16(8),

(b) section 20(1)(b) or (2)(b), or

(c) section 32(4)(b) or (9).

Chapter 2

8.. Amendment of section 2 of Principal Act (interpretation).

8.— Section 2 of the Principal Act is amended in subsection (1)—

(a) by substituting the following for the definition of “postal services”:

“ ‘postal services’ has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;”,

and

(b) by inserting the following definitions:

“ ‘postal service provider’ has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;

‘postal service user’ has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;

‘postal service within the scope of the universal postal service’ has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;

‘universal postal service’ has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;”.

9.. Amendment of section 10 of Principal Act (functions of Commission).

9.— Section 10 of the Principal Act is amended in subsection (1)—

(a) by inserting the following after paragraph (b):

“(ba) to ensure the provision of a universal postal service that meets the reasonable needs of postal service users,”,

and

(b) by substituting the following for paragraph (c):

“(c) to monitor and ensure compliance by postal service providers with the obligations imposed on them by or under the Communications Regulation Acts 2002 to 2011 in relation to the provision of postal services,”.

10.. Amendment of section 12 of Principal Act (objectives of Commission).

10.— Section 12 of the Principal Act is amended—

(a) in subsection (1) by substituting the following for paragraph (c):

“(c) in relation to the provision of postal services—

(i) to promote the development of the postal sector and, in particular, the availability of a universal postal service within, to and from the State at an affordable price for the benefit of all postal service users,

(ii) to promote the interests of postal service users within the Community, and

(iii) subject to subparagraph (i), to facilitate the development of competition and innovation in the market for postal service provision,

and”,

(b) by inserting the following after subsection (2):

“(2A) In relation to the objectives referred to in subsection (1)(c), the Commission shall take all reasonable measures aimed at achieving those objectives, including—

(a) establishing such monitoring and regulatory procedures for the purposes of ensuring compliance by postal service providers with the obligations imposed on them by or under the Communications Regulation Acts 2002 to 2011 as are necessary to secure the provision of a universal postal service,

(b) ensuring that postal service users may avail of a universal postal service that meets their reasonable needs,

(c) in so far as the facilitation of competition and innovation is concerned, ensuring that postal service users derive maximum benefit in terms of choice, price and quality, and

(d) in so far as the promotion of the interests of postal service users within the Community is concerned—

(i) ensuring a high level of protection for postal service users in their dealings with postal service providers, in particular by—

(I) ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved, and

(II) consulting and cooperating with the National Consumer Agency as appropriate,

and

(ii) addressing the needs of specific social groups, in particular, disabled postal service users.”,

and

(c) in subsection (4) by substituting “subsections (1), (2), (2A) and (3)” for “subsections (1), (2) and (3)”.

11.. Power of Commission to obtain information from postal service provider.

11.— The Principal Act is amended by inserting the following after section 13E:

“13F.— (1) The Commission may at any time, by notice in writing, require a postal service provider to provide it with such written information as, subject to subsection (3), it considers necessary to enable it to carry out its functions and, in particular, for any of the following purposes:

(a) establishing compliance by the postal service provider with the obligations imposed on it by or under the Communications Regulation Acts 2002 to 2011;

(b) making a designation under section 17 or 18 of the Communications Regulation (Postal Services) Act 2011;

(c) conducting a review for any of the purposes of the said section 17 or 18;

(d) assessing the contribution (if any) to be made by a postal service provider to a sharing mechanism established under section 36 of the Communications Regulation (Postal Services) Act 2011;

(e) assessing the contribution to be made by a postal service provider to the administration costs of the Commission under section 30(2);

(f) statistical purposes.

(2) A requirement made under subsection (1) shall—

(a) specify the information required, and

(b) state the purposes for which that information is required, including, where relevant, the statistical purposes for which that information is required.

(3) The nature and extent of the information, the subject of a requirement made under subsection (1), shall be proportionate to the use to which the information is to be put by the Commission in the performance of its functions.

(4) Information shall be provided by a postal service provider pursuant to a requirement made under subsection (1) in such form and manner and within such reasonable period as may be specified by the Commission in the notice.

(5) A postal service provider commits an offence if it—

(a) fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Commission allows, or

(b) in purporting to comply with such a requirement, provides to the Commission information that the postal service provider knows to be false or misleading in a material respect.

(6) In proceedings for an offence under subsection (5) involving a failure by a postal service provider to comply with a requirement made under subsection (1), it is a defence if the postal service provider establishes—

(a) that it did not know and could not be reasonably expected to know or ascertain the required information, or

(b) that the disclosure of the information was prohibited by any enactment or rule of law.

(7) A postal service provider who commits an offence under subsection (5) is liable on summary conviction to a class A fine.

(8) (a) The Commission shall give to the European Commission, upon request, appropriate and relevant information necessary for it to carry out its tasks under the Directive (within the meaning of section 6 of the Communications Regulation (Postal Services) Act 2011).

(b) Nothing in section 24(1) shall prevent the disclosure of confidential information (within the meaning of section 24) by the Commission to the European Commission under this subsection.”.

12.. Alternative procedure for enforcement of section 13F of Principal Act.

12.— The Principal Act is amended by inserting the following after section 13F (inserted by section 11)—

“13G.— (1) As an alternative to bringing a prosecution for an offence under section 13F(5), the Commission may apply to the High Court to make a compliance order under subsection (4). Such an application is to be by motion.

(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the postal service provider concerned. On being served with such a copy, the postal service provider becomes the respondent to the application.

(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application.

(4) On the hearing of an application made under subsection (1), the High Court may make an order requiring the postal service provider to comply with section 13F or may refuse the application.

(5) If the High Court makes an order under subsection (4), it may make such ancillary orders as it considers appropriate.”.

13.. Amendment of section 38A of Principal Act (Commission may require persons to give evidence or produce documents).

13.— Section 38A of the Principal Act is amended in subsection (1) by inserting “(other than its functions or objectives relating to postal services)” after “objectives”.

14.. National regulatory authority.

14.— The Commission shall be the national regulatory authority for the purposes of the Directive.

15.. Public consultation process.

15.— (1) Where the Commission is required to conduct a public consultation process in the performance of any of its functions under the Communications Regulation Acts 2002 to 2011 relating to postal services, the Commission shall carry out such process in accordance with procedures established and maintained by it.