With the approval of Law 1/2016 of 7 January (the Law), the provision of postal services has become liberalized, and thus guarantees equal and free access to the market under the terms of the law. This liberalization is aimed at promoting greater competitiveness, fair competition and progressive improvement of the quality of services provided to users.
The Regulatory Authority for the postal sector is the National Communications Institute of Mozambique (NCIM), a public institution with legal personality, administrative, financial and patrimonial autonomy, whose functions includes the issuing, renewal and amendment of licenses for the establishment and operation of postal services.
The purpose of this article is to address two types of postal services, namely the universal postal service and other postal services, including express mail services, which are operated on a competitive basis.
The universal postal service is the provision of postal services with specific quality, provided throughout the national territory by the postal service operator and aimed at satisfying the communication needs of the population and of public and private entities in the development of economic and social activities. This service includes sending correspondence, books, catalogs, newspapers and other periodic publications of up to 2 kg in weight and postal parcels of up to 20 kg in weight. It also includes a registered national and international courier service and a courier service with a declared value.
Pursuant to Article 15, paragraph 4 of the Law, this service can only be performed directly by the State, by a legal person governed by Public Law or alternatively by Private Law, and in the latter case only if such a private legal person concludes a public service concession contract with the Government.
It should be noted that the Government can designate one or more universal postal service operators, giving priority to places that are not economically viable. In addition, the services of issuing stamps, postal orders and philatelic materials are reserved for these designated operators on an exclusive basis. Currently, the designated operator is Empresa Nacional de Correios de Moçambique, E.P.
The universal postal service is the beneficiary of a fund, the purpose of which is to finance it. Postal service providers and operators should contribute to this fund under the terms of specific regulations.
As already mentioned, two types of postal services are the subject of this article, the second being the other postal services operated by competitive service providers. The postal service consists of any activity that integrates the operations of acceptance, handling, transportation and distribution of postal items.
The provision of postal services by private persons is governed by Decree 67/2016 of 30 December, which approves the Postal Service Licensing Regulation (the Regulation). Under the terms of this Regulation, the following postal services are subject to licensing by the NCIM:
- Postal services for mail, including direct or non-addressed mail, whether or not by express mail
- Postal services for mailing of books, catalogs, newspapers and other periodicals
- Postal services for registered correspondence and correspondence with a declared value, including judicial service or notice service
- Postal parcel services, including registered and declared value services
The applicant shall indicate in his application the geographical area of operation, including the scope of the postal services or networks, taking into account that the licenses are classified as Provincial, Interprovincial, National and International. It should be noted that the international license also entitles the holder to carry out postal activity throughout the national territory.
National natural and legal persons are eligible to apply for a license to provide postal services. In this case, we understand that for the purposes of this Regulation and the postal sector in general, a company registered in Mozambique (regardless of the shareholding held by foreigners in its equity capital) is considered national, given that no limitation is brought by the legislation under consideration in this respect.
The license must be granted within 30 days of the date of receipt of the request and, once issued, is valid for 10 years and may be renewed for equal and successive periods when the mandatory conditions have been verified.
License holders are obliged to commence activity within three months of the date of issuance under penalty of fine or expiration of the license, except for reasons of force majeure or fortuitous event and acknowledged as such by the NCIM.
It is lawful for the licensed entities to conclude contracts for the transportation and distribution of postal items with third parties that are not postal service providers, without prejudice to the liability of the postal service license towards the Regulatory Authority and to consumers for non-compliance with legal rules applicable to the sector.
The license is subject to a fee defined according to the classification or scope of the license, ranging from 50,000 MT (fifty thousand meticais) to 200,000 MT (two hundred thousand meticais). An annual rate of 1% (one percent) of the gross revenue corresponding to postal services provided is also applicable.
It should be clarified that before the entry into force of the legislation mentioned here, the regime for the granting of a license for the provision of postal services was not clear due to the lack of specific regulations that would complement the Telecommunications Law that was then in force. However, the NCIM created internal regulations that it applied in the assessment of license applications, as well as in the issuance of licenses defined by Decree 32/2001 of 6 November, which approves the Organic Statute of the NCIM. With the coming into force of the Law and the Regulation, private persons can now become active in the market more clearly by investing in the postal sector as licensed service providers.
It should be noted that with regard to the licenses currently in force, the Regulation states that license holders must, within 60 days of the date of entry into force of the Regulation, apply for a new license to be issued under the new requirements approved by this Regulation, that is, by 30 March 2017.
SAL & Caldeira Advogados LDA is a member of the DLA Piper Africa Group, an alliance of leading independent law firms working together in association with DLA Piper across Africa.
Originally published in the SAL & Caldeira Newsletter 2017, No 27, May 2017 and is reproduced with permission.