Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Considering Directive No. 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to electronic communications networks and associated resources, as well as their interconnection (Directive "Access");
Considering Directive No. 2002/20/EC of the European Parliament and the Council of 7 March 2002 on the authorization of electronic communications networks and services (Directive "authorisation");
Considering Directive No. 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (the "frame" directive);
Considering Directive No. 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and user rights of electronic communications networks and services (the "Universal Service" directive);
Considering the post and electronic communications code, including articles L. 32, L. 33-1, L. 37-1, L. 37-2, L. 38, L. 38-1, L. 38-2, D. 98-11, D. 295 and D. 301;
Having regard to Decision No. 2005-0321 of 14 June 2005 of the Authority for the Regulation of Electronic Communications and Positions on the establishment of a questionnaire for the collection of information necessary for the application of Article L. 37-1 of the Post and Electronic Communications Code;
After deliberating on 15 April 2008,
I. The applicable legal framework
By Decision No. 2005-0321 of 14 June 2005, adopted following a consultation with the operators members of the interconnection committee, the Autorité has put in place a system of questionnaires sent annually to the operators involved in the electronic communications markets and aiming to collect a set of quantitative information relating to their activity, which is essential to the conduct of the market analyses provided by the regulatory framework.
Pursuant to Article L. 37-1 of the Post and Electronic Communications Code (CPCE), the Autorité must determine the relevant electronic communications industry markets. It must then, after analyzing the predicted state and evolution of competition in these markets, establish a list of operators deemed to have significant influence on each of these markets. Finally, it is the responsibility of the licensee to determine, where appropriate, the obligations applicable to operators deemed to exercise such influence.
Article D. 301 of the CPCE states that "the Authority shall maintain a list of all relevant markets for the purposes of Articles L. 38, L. 38-1 and L. 38-2".
Under the same article, "the registration of a market on this list is issued for a maximum of three years" but it may be reviewed, in particular, "at the initiative of the Authority, when the evolution of this market justifies it, as soon as possible after the amendment of the European Commission's recommendation" of 11 February 2003 regarding the relevant markets of products and services in the electronic communications sector that may be subject to an ex-year regulation.
In addition, section L. 33-1 of the CCCB provides that the establishment and operation of open networks to the public and the provision of electronic communications services to the public is subject to the obligations required for the purposes of section L. 37-1 above.
Article D. 98-11 of the CPCE, which defines the rules relating to these obligations, provides, inter alia, that any electronic communications operator shall communicate to the Authority, according to a periodicity defined by it or at its request, the information necessary to conduct the analyses of the markets provided for in Article L. 37-1 of the CPCE. This information is specified in paragraph 1 (d) of the same article. They "include, in addition to those subject to a motivated request:
― description of all services offered;
– the rates and general terms of the offer;
― traffic statistics;
- revenue data;
― customer park data;
– the growth forecast of its activity;
information on the deployment of its network;
– the relevant accounting and financial information.”
Operators are therefore required to provide the Authority with information relating to their operation and establishment of open networks to the public or the provision of electronic communications services to the public, necessary for the conduct of market analyses under Article L. 37-1 of the CCCB.
II. - The objectives pursued by the Authority
The quantitative questionnaire sent annually to the operators allows the Authority to analyze the evolutions at work in the various electronic communications markets.
The information collected is used as part of the Autorité's market analysis. They are also used to determine whether market developments warrant a review of the list of relevant markets.
However, the possibility of additional questionnaires is not excluded.
III. - Companies affected by the questionnaire
This annual quantitative questionnaire should be provided to companies operating or establishing an electronic communications network open to the public or providing an electronic communications service to the public.
IV. - The nature of the data collected
The information requested in the questionnaire annexed to this decision concerns the activity of electronic communications operators, including traffic, turnover and number of customers.
This information is proportionate to the needs of the Authority in that it will enable it to monitor and measure developments in the electronic communications markets.
The scope of the requested information is not restricted to the strict scope of the identified relevant markets. In fact, the information collected must be used to inform the Authority on the situation and context of electronic communications markets, taking into account, inter alia:
– the emergence of new services and their substitute character with other services;
– the relationship between wholesale and retail markets, the analysis of a wholesale market requiring the knowledge of the corresponding retail market.
The list and classification of services concerned by the information requested in the questionnaire annexed to this decision are independent of any connotation in terms of definition of relevant markets.
The 2008 questionnaire covers the year 2007. However, the information is also requested for the year 2006, with the aim of fiabilizing the annual changes calculated and analyzed by the Authority.
Small changes were introduced compared to the questionnaire sent to operators in 2007. They are intended to take into account the changes in the services offered in certain markets, as well as the special lighting needs related to the ongoing market analysis work carried out by the Autorité.
V. - Processing and using collected data
The information collected through the questionnaire annexed to this decision will be used pursuant to section L. 37-1 of the CCCB.
This information will be subject to a controlled distribution within the Authority and will be used by its services in the procurement analysis procedures. They may, in particular, be used in public consultation documents, subject to the confidentiality of cases.
In accordance with Article D. 295 of the CPCE, this information may also be communicated to the European Commission, at its request, in particular for the preparation of its annual report. In this case, the Authority will inform the operators concerned,
Decides:
In 2008, information relating to the years 2007 and 2006 and necessary for the application of Article L. 37-1 of the Post and Electronic Communications Code will be collected by the Authority from companies operating or establishing an electronic communications network open to the public or providing the public with an electronic communications service in accordance with the form annexed to this decision.
Information on the questionnaire annexed to this decision will be provided by the companies concerned to the Authority by 16 June 2008.
The Director General is responsible for the execution of this decision, which will be published in the Official Journal of the French Republic, with the exception of its annex which will be published on the website.
Done in Paris, April 15, 2008.
The president,
P. Champsaur
