Postal and courier services in Annex II, word for word

In this lesson

• Quote Annex II, point 1, of NIS2 word for word and follow its reference into Directive 97/67/EC as amended by Directive 2008/6/EC.
• Apply the chain of definitions (postal service provider, postal services, postal item, clearance, distribution) to a real operator.
• Explain what the courier clause adds and why transport alone should not be considered a postal service.
• Sort the edge cases of a postal group, entity by entity, in a scoping note a supervisor can check.

Where postal and courier services sit

Annex II, point 1

NIS2 has two annexes of sectors. Annex I lists the sectors of high criticality; Annex II lists seven other critical sectors. Postal and courier services are point 1 of Annex II. The row has no subsectors: the subsector column is empty and the type of entity follows directly. When article 3(4)(c) asks entities to submit “where applicable, the relevant sector and subsector referred to in Annex I or II”, the sector is the whole answer for a postal provider.

Article 2(1) applies the directive to “public or private entities of a type referred to in Annex I or II” that meet the size rule (lesson m1l2) and provide their services or carry out their activities within the Union. The question this lesson answers comes first: is the organisation of the type described in the row?

The row, word for word

Two elements decide membership: the definition in point (1a) of the Postal Services Directive, and the courier clause.

The definition chain

Dir. 2008/6/EC, art. 1(2)

The original 1997 text of Directive 97/67/EC has no point (1a). It was inserted by article 1(2)(b) of Directive 2008/6/EC, which also rewrote several neighbouring definitions. The annex row therefore only makes sense if you read Directive 97/67/EC as amended. Point (1a) reads: “postal service provider: undertaking that provides one or more postal services”. Each term then sends you to another definition:

Directive 97/67/EC was also amended before 2008, by Directive 2002/39/EC and Regulation (EC) No 1882/2003, both mentioned in Directive 2008/6/EC. Directive 2002/39/EC amended none of the definitions of article 2. This course quotes the definitions as Directive 2008/6/EC wrote them, and the 1997 text where neither amending directive changed it. Check the consolidated version on EUR-Lex for any later change before you file a scoping note.

What the definition requires, and what it does not

Recital 12

One service is enough. Point (1a) says “one or more postal services”. Recital 12 of NIS2 spells out the intention: postal service providers, including providers of courier services, should be subject to the directive “if they provide at least one of the steps in the postal delivery chain, in particular clearance, sorting, transport or distribution of postal items, including pick-up services”. A company that only collects, or only sorts, or only delivers the last mile can be a postal service provider.

No link to the universal service. The definition does not mention the universal service. The universal service provider is a separate notion (point 13: “the public or private postal service provider providing a universal postal service or parts thereof within a Member State”, notified to the Commission). The annex row covers every postal service provider, designated or not.

No weight limit. The weight limits in article 3(4) and 3(5) of the directive, two kilograms for postal items, 10 kilograms for parcels, up to 20 kilograms if the national regulatory authority raises the limit, describe the minimum content of the universal service. They are not part of the definition of postal item, which covers parcels “containing merchandise with or without commercial value” without a weight condition.

Addressed items. A postal item is an item “addressed in the final form in which it is to be carried”. An operator that distributes only unaddressed material should read that word carefully and record its reasoning; NIS2 does not add anything to it.

Senders are not providers. A sender is “a natural or legal person responsible for originating postal items” (point 16). An online retailer that ships its own goods through carriers is a sender, not a postal service provider, whatever the volume.

Couriers, express and transport alone

Annex II, point 1; recital 12

Neither Directive 97/67/EC nor Directive 2008/6/EC defines courier services. The 1997 text distinguished express mail from universal postal services by the value added that customers pay for (recital 18 of the 1997 directive). NIS2 settles the practical question in the annex itself: postal service providers are covered “including providers of courier services”. An express or courier operator cannot argue that its premium service puts it outside the row. It is covered if it provides at least one postal service, like any other provider.

The boundary runs on the other side. Recital 12 of NIS2 states: “Transport services that are not undertaken in conjunction with one of those steps should be excluded from the scope of postal services.” Recital 17 of Directive 2008/6/EC says the same in fewer words: “Transport alone should not be considered as a postal service.” A haulier that moves sealed containers between two sorting hubs for a postal operator, and does nothing else with the items, is on that reading not a postal service provider. It is a supplier of one, which matters in lesson m3l2.

Recital 12 adds that providers should be covered “while taking account of the degree of their dependence on network and information systems”. That phrase is in a recital. The annex row and article 2 contain no dependence threshold, and article 21(1) already makes the measures proportionate. Do not treat the phrase as an exemption for low-technology operators unless national law says so; check /transposition.

Edge cases to settle in writing

• Last-mile delivery firms. Distribution runs to “delivery of postal items to their addressees”. A firm that delivers parcels for a network operator performs distribution and is of the type. Whether it is in scope then depends on its size (lesson m1l2).
• Consolidators. Directive 97/67/EC, article 12 as replaced, speaks of “consolidators of mail from different users”. A consolidator that collects items from senders performs clearance as defined in point 4.
• Pick-up and drop-off networks and parcel lockers. Recital 12 names pick-up services. An operator that collects and hands over items through its own lockers or points is performing postal steps. A shop that only hosts a point on behalf of a provider is in a different position: document what it actually does with the items.
• In-house mailrooms. Recital 21 of the 1997 directive described self-provision, the originator handling its own mail, as not falling within the category of services. On that reading, a mailroom handling its own organisation's mail is not providing postal services.
• Digital intermediaries. A platform that sells labels and passes items to carriers must ask whether it collects, sorts, transports or distributes anything itself.

One row per legal entity

Art. 6(38)

NIS2 applies to entities: under article 6(38), a natural or legal person created and recognised as such under national law. Postal groups can combine several businesses, and recital 14 of Directive 2008/6/EC expected it: postal service providers “may diversify their activities by providing electronic business services or other information society services”. Each legal entity is scoped against the row its activities match: a group subsidiary that is a credit institution is tested against Annex I, point 3; an air cargo subsidiary that is an air carrier against Annex I, point 2(a); a subsidiary providing trust services against Annex I, point 8, with its own size-independent rules (articles 2(2)(a)(ii) and 3(1)(b)). The postal row does not absorb those activities, and they do not make the postal entity essential.

What a supervisor will ask

• Why is this entity a postal service provider, or why not? The scoping note quoting point (1a) and the definitions it imports, with the steps the entity performs.
• Which version of Directive 97/67/EC did you read? The reference to the amended text, not the 1997 original alone.
• How did you treat transport, pick-up and last-mile activities? The reasoning on recital 12 for each entity of the group.
• What sector did you register? The registration showing Annex II, postal and courier services, and the entities registered.

Key points

• Annex II, point 1, has no subsectors: one type of entity, postal service providers as defined in article 2, point (1a), of Directive 97/67/EC, including providers of courier services.
• Point (1a) was inserted by Directive 2008/6/EC: an undertaking that provides one or more postal services, which involve the clearance, sorting, transport and distribution of postal items; recital 12 confirms that one step is enough.
• The type is not limited to universal service providers, and the universal service weight limits do not narrow it.
• Courier and express providers are expressly included; recital 12 says transport not undertaken in conjunction with another postal step should be excluded.
• Scope each legal entity of a group separately, against the row its activities match.