Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Having regard to 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 for postal services of the Community and the improvement of the quality of service, last amended by Directive 2008/6/EC of the European Parliament and the Council of 20 February 2008;
Considering the post and electronic communications code, including articles L. 5-7-1, R. 1-1-9, R. 1-1-18 and R. 1-2-6;
Vu la Act No. 2010-123 of 9 February 2010 relating to La Poste and Postal Activities;
Having regard to decision No. 2006-0044 of 10 January 2006 as amended by the Autorité de régulation des communications électronique et des postes portant règlement intérieur;
After deliberating on 16 December 2010,
Decides:
It is added to the above-mentioned rules of procedure a chapter VII, as follows:
“Chapter VII
“Rules applicable to the processing of claims
under Article L. 5-7-1
“Article 30
« Seizure of the Authority
"The procedure for processing claims under Article L. 5-7-1 of the Post and Electronic Communications Code is open to any natural or legal person who is a recipient of a postal service delivery by an authorized service provider as a sender or recipient.
"The referral and the attachments are addressed to the Authority by registered letter with a request for notice of receipt.
"The claim must include the following information and evidence:
“– the name, first name, quality, postal address and, where applicable, the applicant’s e-mail address;
“—the applicant’s social reason;
"a copy of the claim filed with the postal service provider and proof of its filing;
" — if any, a copy of the postal provider's response;
"a copy of the opinion of the mediator of the La Poste Group for the claims filed with La Poste;
"–all mails and parts containing all information that the applicant considers necessary for a good understanding of the claim processing request.
"The request for processing may relate to a claim that has not been processed or that has been treated incorrectly or unsatisfactorily by the postal provider.
"The Authority may only be seized of a claim processing request after the exhaustion of all domestic remedies to postal providers, including the La Poste mediator.
"In order to be admissible, the claim must be submitted to the Authority within two months of notification to the applicant of the response of the final instance of appeal of the postal provider, or, if no response is made, after the expiry of a two-month period from the filing of the claim with the final instance of appeal of the postal provider.
“Article 31
“Instruction
"When the referral meets all the conditions referred to in Article 30, the Director of Postal Activities designates a rapporteur and an assistant rapporteur.
"The rapporteur or his deputy shall forward the claim to the postal provider and invite him to submit his comments.
"The rapporteur or his deputy shall conduct the instruction with the assistance of the services of the Authority. It may carry out any instruction that it considers useful.
“Article 32
« Opinion of the Authority
"At the end of the instruction, the rapporteur or his deputy sends the instruction file to the college, which renders a notice. AMF's notice is notified to the applicant and the postal service provider by registered letter with a request for notice of receipt.
"When the claim is raised by a new question, with serious difficulty and in many disputes, the Director of Legal Affairs or his Deputy may call the parties to a hearing before the College. The summons to the hearing is directed to the applicant and the postal service provider at least seven frank days before the hearing date. »
A consolidated version of the rules of procedure of the Authority for the regulation of electronic communications and posts is annexed to this decision, which will be published on the website of the Authority for the regulation of electronic communications and posts (www.arcep.fr).
The Director General of the Electronic Communications and Post Regulatory Authority is responsible for the execution of this decision, which will be published in the Official Journal of the French Republic.
A N N E X E
REGULATION AUTHORITY REGULATIONS
ELECTRONIC COMMUNICATIONS AND POSTS
The rules of procedure are taken on the basis of Article D. 288 of the Post and Electronic Communications Code setting out the deliberation procedures and the rules of procedure applicable to the Authority.
Chapter I
Rules of operation of the College of the Authority
Article 1
Composition of the college
In accordance with Article L. 130 of the Code of Posts and Electronic Communications, the seven members of the Authority, including its president, constitute the College of the Authority.
Article 2
Convening and Chairing of the College
The college meets on the convocation of the president of the Authority in principle once a week. The President may as necessary bring him together at any time. A college meeting is entitled to the request of at least two members who specify the subject matter.
In the event of the absence or incapacity of the president, the meeting shall be held under the presidency of the older member.
Article 3
Agenda
The agenda of the meetings is decided by the President, after advice from the Director General. Unless an emergency occurs, it is forwarded to members at least two days before the session.
Deliberation projects are under the responsibility of the Director General. Unless an emergency occurs, they are forwarded to members at least two days before the session.
Any member may have one or more items on the agenda. He shall inform the President and the Director General at least three days before the session and shall provide them with the necessary information.
The items that could not be considered during a meeting are listed as a priority on the agenda of the next meeting. However, in the event that the postponement is motivated by the need to collect additional information, the issue is on the agenda of the session in which the College will have the necessary information to enable it to conduct this review.
Article 4
Organization of meetings
In accordance with Article L. 130 of the Code of Posts and Electronic Communications, the College may deliberate only if at least five of its members are present. It deliberates by a majority of the members present.
The president or a member of the Authority may request a vote. This one is then in law. In this case, the vote shall be held by hand unless the President or at least a member requests a secret ballot. The proxy vote is not allowed. In the event of a vote-sharing, deliberation is not adopted.
The Director General and the agents he designates attend the meetings of the Authority. These officers do not attend the proceedings of the Authority referred to in Articles 16 and 25 below.
Cases subject to the deliberation of the College of the Authority are presented either by a member of the College or by the Director General or by a director or other agent of the Authority.
Article 5
Budget
Pursuant to Article L. 133 of the Code of Posts and Electronic Communications, which provides that the Authority proposes to the competent ministers the credits necessary for the performance of its missions, the College shall examine and approve the proposed budget submitted by the President of the Authority. This project includes, in addition to the Authority's own forecasting resources, the amount of appropriations required to be included in the general budget of the State.
Article 6
Conclusions
A summary of the meetings is prepared by the Director General. It includes, inter alia, the issues discussed, the outcome of the deliberations and the names of the present. The decisions or opinions adopted are annexed to it.
The draft outcome statement was forwarded to members and adopted at the beginning of the meeting following its transmission.
The decisions or opinions adopted shall be signed by the president of the Authority for the regulation of electronic communications and posts or, in the event of absence or incapacity of the latter, by the member of the Authority having held the chair of the College in accordance with Article 2. They are kept in chronological order.
Article 7
Alternate Director General
In the event of absence or incapacity of the Director General, an Assistant Director General or, if not, an employee designated by the President shall be responsible for superseding him.
Article 8
Deputy Director of Legal Affairs
In the event of the absence or incapacity of the Director of Legal Affairs, the powers exercised by the Director, referred to in chapters II and IV below, shall be exercised by his deputy or, if not, by any other employee designated by the Director General.
Chapter II
Rules of procedure applicable to decisions taken
pursuant to articles L. 5-4, L. 5-5, L. 34-8-I (b) and L. 36-8
Article 9
Seizure of the Authority
The seizure and the annexed documents are sent to the Authority in as many copies as concerned parties plus eleven copies:
― either by registered letter with notice of receipt;
― either by deposit at the headquarters of the Authority against the issuance of a receipt.
The referral indicates the facts that are at the origin of the dispute, sets out the means invoked and specifies the conclusions presented.
It also indicates the applicant's quality, including:
- if the applicant is a natural person: his name, first name, domicile, nationality, date and place of birth;
- if the applicant is a legal entity: its name, form, head office, body that legally represents it and the quality of the person who signed the referral; The statutes are attached to the referral.
The applicant must specify the name, first name and domicile of the defendant(s) or, if it is one or more legal persons, their name and head office.
If the referral does not comply with the above-mentioned rules, the Director of Legal Affairs or his or her Deputy shall retain the applicant by registered letter with notice of receipt or by any other means to reach their date of receipt. The deadline is only after the missing elements are received.
As long as the case is complete, it is entered on a order register and marked with a stamp indicating its arrival date.
The exhibits addressed to the Authority are also marked with a stamp indicating their date of arrival.
Article 10
Authority deadlines
Where it is seized on the basis of articles L. 34-8-I (b) and L. 36-8 of the Post and Electronic Communications Code, the Authority shall take a decision within four months, except in exceptional circumstances where this period may be extended to six months.
When it is seized on the basis of articles L. 5-4 and L. 5-5 of the Post and Electronic Communications Code, the Authority shall decide within four months. If, at the expiry of this period, the Autorité has not pronounced itself, the Paris Court of Appeal may also be seized.
Article 11
Procedure
As soon as the referral is complete, the Director of Legal Affairs or his Deputy designates a Rapporteur and a Deputy Rapporteur.
The Director of Legal Affairs or his or her Assistant shall address by registered letter with notice of receipt or by any other means to obtain from the date of receipt to the party(s) mentioned in the case the following documents:
- copy of the act of referral;
- copy of the documents annexed to the act of referral.
In order to allow compliance with the time limit set out in Articles L. 5-4, L. 5-5 and R. 11-1 of the Post and Electronic Communications Code and the principle of the conflict, upon receipt of the complete referral, the Director of Legal Affairs or his Deputy may invite the parties to meet in his presence to determine, by mutual agreement, a forecast schedule setting the dates of the production of the comments, without prejudice to the provisions of Articles 13 to 15.
The Director of Legal Affairs or his or her Deputy sets the time limit for the parties concerned to respond to the comments and documents filed by the other parties, including in the absence of agreement by the parties on a forecast schedule.
The parties shall transmit their observations and documents to the Authority by registered letter with notice of receipt or by deposit to the headquarters of the Authority in as many copies as concerned parties plus eleven copies.
Comments transmitted by fax shall be authenticated by the subsequent production of the number of copies referred to in the paragraph above duly signed from the facsimile submission. This production shall be carried out within the time limit set by the parties to produce their observations.
Upon receipt of comments and documents, the Director of Legal Affairs or his or her Deputy shall address these documents by registered letter with notice of receipt or by any other means to attest from their date of receipt to the other or other parties, reminding them of the date before which they shall transmit to the Authority their observations and documents annexed to the support of their reply.
All notifications are made at the home or place of establishment of the parties, as mentioned in the notice of referral.
The parties must indicate by registered letter with notice of receipt to the Authority the address to which they wish to be notified of the acts, if this address is different from that mentioned in the act of referral.
Article 12
Submission and consultation of copies
When the parties attach parts in support of the referral or their observations, they shall simultaneously prepare the inventory and address them to the Authority in as many copies as provided for in Article 9 above.
Where the number, volume or characteristics of these documents are obstructing the production of copies, the Director of Legal Affairs or his or her Deputy may authorize the parties to produce them only in one copy. The other parties may then be aware of this at the Authority's headquarters and copy it at their own expense.
Article 13
Training measures
The rapporteur or his deputy may proceed in accordance with the principle of the contradictory to any measures of instruction that would seem useful to him. In particular, it may invite the parties to provide, orally or in writing, the necessary explanations for the solution of the dispute.
The rapporteur or his or her deputy may appoint agents of the Authority in order to carry out the findings, in agreement with the party concerned, on the scene. The parties are invited to attend this visit.
The findings give rise to a record prepared by the rapporteur, his deputy or the agents mandated. This record is signed by the parties, who receive copies of it for possible observations.
Definitely authorized by the Authority, the rapporteur or his deputy may conduct technical, economic or legal consultations, or expertise in accordance with the secrecy of the investigation of the dispute.
The Director of Legal Affairs or his Deputy is responsible for the execution of such training and communications with the parties.
The instruction shall close no later than five frank days before the hearing before the college. With regard to the precautionary measures, the instruction is closed no later than two frank days before the hearing before the college. However, if the rapporteur or his deputy considers it necessary, after the date of completion of the instruction, in the light of new legal or factual circumstances, the Director of Legal Affairs or his deputy may decide on the reopening of the instruction.
Article 14
Conservative measures
In accordance with Article R. 11-1 of the Post and Electronic Communications Code, a request for interim measures may only be made available to a referral at the bottom of the Electronic Communications Regulatory Authority and posts under Article L. 36-8 of the Post and Electronic Communications Code. It may be presented at any time of the proceedings and must be motivated. The Director of Legal Affairs or his or her Deputy in a registered letter with notice of receipt or any other means to attest from the date of receipt to the or other parties.
Article 15
Hearing in front of the college
The rapporteur or his deputy sends the instruction file to the college.
The Director of Legal Affairs or his or her Deputy shall summon the parties to a hearing before the College, including when the College decides on a request for interim measures. The summons to the hearing shall be sent to the parties at least seven frank days before the hearing date. It is sent by registered letter with notice of receipt or by any other means to attest to its date of receipt.
For interim measures, the summons to the hearing is sent to the parties at least two frank days before the hearing date. It is sent by registered letter with notice of receipt or by any other means to attest to its date of receipt.
The hearing shall be open, unless the parties jointly request. If this request is not joint, the College of the Authority deliberates it.
At this hearing, the rapporteur or his deputy orally outlines the means and conclusions of the parties.
The parties, who may be assisted, answer questions from members of the College and present their oral comments.
Article 16
Deliberations
The College shall deliberate, outside the presence of the rapporteur, his deputy, the director of legal affairs, his deputy and the parties, in accordance with the operating rules set out in chapter I above.
Article 17
Notification and publication
The decisions taken by the College are notified to the parties by registered letter with notice of receipt or by carrier.
This notice mentions the time limit for appeal to the Paris Court of Appeal, in accordance with the provisions of articles L. 5-6, L. 36-8 and R. 11-2 of the Post and Electronic Communications Code.
Decisions are published on the AMF website (www.arcep.fr) subject to the secrets protected by law.
Chapter III
Rules applicable to conciliation under Article L. 5-7
Article 18
Procedure
When the Authority has a request for conciliation, the President of the Authority shall designate a conciliator chosen from among the members of the College. This is assisted as necessary by the AMF agents.
The conciliator may invite interested parties to an audition. He may hear, subject to their acceptance, all persons whose hearing seems useful to him.
At the end of the proceedings, a conciliation or non-conciliation report is signed by the conciliator and the parties. In the event of a successful conciliation, the minutes are agreed between the parties. A copy of the notice of agreement is given to each individual. A copy is retained by the Authority.
Chapter IV
Rules of procedure applicable to decisions taken
pursuant to articles L. 5-3 and L. 36-11
Article 19
Instruction
When the Authority has before it an application for a sanction submitted pursuant to sections L. 5-3 (1°) and L. 36-11 (1° and 3°), the Director General appreciates whether the application should be followed up.
In the event of an autosaisine or if the Director General considers that the application should be followed up, he shall forward the file to the Director of Legal Affairs or his Deputy, who shall designate a rapporteur and an Assistant Rapporteur and communicate the subject matter of the application to the person concerned.
The rapporteur or his deputy shall conduct the instruction with the assistance of the services of the Authority. He or she may hear, if he or she considers it necessary, the person in question who may be assisted or represented by any person of his or her choice. The rapporteur or his deputy may also hear any other person who may contribute to his or her information.
Rule 20
Nowhere to proceed
In the light of the circumstances of fact and law, the Director-General may, at any time, find the right to continue the proceedings.
Where the postal service provider or a holder of the authorization provided for in Article L. 3 has not complied with, within the specified time limit, a decision made pursuant to Article L. 5-4 or L. 5-5 or that a network operator or service provider has not complied with within the time limits set out in a decision made pursuant to Article L. 36-8, the Director General shall not see the
In the absence of self-study by the Authority, where the person in question did not comply with the stay provided for in the 1st of Article L. 5-3 or the 1st of Article L. 36-11, the Director General may not find the right to continue the proceedings until the parties were invited by the Director of Legal Affairs or his deputy to produce written comments on the interim report.
The Director General's decision not to proceed with the proceedings is notified to the interested person and, where applicable, to the applicant.
Article 21
Continuation
Pursuant to section L. 36-11, where the Director General considers, in the light of the fact-finding report prepared by the rapporteurs, that there has been an offence of a network operator or service provider to a legislative or regulatory provision related to his or her activity or to the requirements of the title under which he or she exercises it, the Director General shall establish the person involved to comply with it within a period of not less than one month. This period may be reduced in the event of serious and repeated offences, or if the operator or supplier agrees.
Pursuant to section L. 5-3, where the Director General considers in the light of the fact-finding report prepared by the Rapporteurs that there has been an offence of the universal service provider or a licensee under section L. 3, to a legislative or regulatory provision related to his or her activity or to the requirements of the title under which he or she exercises it, the Director General shall put in place a lesser person to comply with it within one month. This period may be reduced in the event of serious and repeated offences.
Reminders shall be notified to the person questioned by registered letter with acknowledgement of receipt or by any other means to attest to their date of receipt. They can be made public.
Article 22
Respect for the rest
If the Director General is of the opinion that the person in question has complied with the detention within the time limit, the Director General finds the non-court to continue the proceedings by a reasoned decision.
Article 23
Notification of grievances
If the party concerned has not complied with the detention, the rapporteur or his deputy shall prepare a statement of the facts and grievances.
The Director of Legal Affairs or his or her Deputy shall notify by registered letter with notice of receipt or by any other means to obtain from the date of receipt the statement of facts and grievances to the respondent who may then access all documents of the record. The report is also transmitted, if any, to the applicant for the sanction, subject to the secrets protected by law.
In the case of non-performance of a dispute resolution decision under sections L. 5-4, L. 5-5 or L. 36-8 of the Post and Electronic Communications Code, the statement of facts and grievances is addressed to the party involved, which has access to all documents of the file, as well as to the other or other parties concerned subject to the secrets protected by law.
Parties are invited to submit written comments within a period of not less than 10 frank days.
Upon the expiry of the time limit for the consultation of the file, and after the party(s) has submitted their written comments or the time limit for the submission is expired, the rapporteur or his deputy shall forward the file to the college.
Article 24
Hearing in front of the college
The Director of Legal Affairs or his Deputy shall, at least seven frank days before the scheduled date, summon the person concerned and, where appropriate, the applicant to a public hearing in which the rapporteur or his deputy shall present his report.
The College of the Authority may hear any person whose hearing it considers useful.
After the presentation of the rapporteur or his deputy and, in the case of a failure to comply with a dispute resolution decision under sections L. 5-4, L. 5-5 or L. 36-8 of the Post and Electronic Communications Code, comments from the party(s) concerned, the person questioned, if any assisted or represented by a representative of his or her choice, is invited to respond to questions from the members of the College and to present his or her comments.
Rule 25
Deliberation
The College shall deliberate, apart from the presence of the rapporteur, his deputy, the director of legal affairs, his deputy, if any of the parties referred to in section 24 and the person concerned, in accordance with the operating rules set out in chapter I above.
Rule 26
Notification
The decisions of the Authority made pursuant to Articles L. 5-3 and L. 36-11 of the Post and Electronic Communications Code are motivated, notified by registered letter with notice of receipt or by any other means to attest to their date of receipt and published in the Official Journal of the French Republic.
The notification mentions the time limit for appeal to the Council of State, in accordance with provisions of Article R. 421-1 of the Administrative Justice Code.
Chapter V
Rules applicable to mediation under section 134 of Act No. 2004-669 of 9 July 2004 related to electronic communications and audiovisual communications in its writing fromArticle 13 of Act No. 2007-309 of 5 March 2007 on the modernization of audio-visual broadcasting and television in the future
Rule 27
Saisine
The seizure and the attachments are addressed to the Authority in as many copies as concerned:
― either by registered letter with notice of receipt;
― either by deposit at the headquarters of the Authority against the issuance of a receipt.
The referral indicates the facts that are at the origin of the mediation, sets out the evidence and conclusions presented by the applicant.
The referral also indicates the quality of the author of the referral, its name or social reason, its legal status, address or head office, and the name and quality of its representative.
If the referral does not meet the above-mentioned rules, the Registry of the Authority's legal department invites the author of the referral, by registered letter with notice of receipt or by any other means to attest to their date of receipt, to complete the referral file.
As long as the case is complete, it is entered on a order register and marked with a stamp indicating its arrival date.
A copy of the referral and its annexes shall be transmitted to the other party, by registered letter with notice of receipt or by any other means allowing to attest to their date of receipt, so that it informs the Authority, either by registered letter with notice of receipt or by deposit at the headquarters of the Authority against the issuance of a receipt, its agreement or its refusal to take part in the mediation procedure. The four-month period provided for in the above-mentioned section of law shall be limited to the date of receipt of the consent of the latter to participate in the mediation procedure.
The items being printed are also marked with a stamp indicating their arrival date.
Rule 28
Procedure
When the Authority is seized of a request for mediation accepted by each of the parties, the College of the Authority shall designate a mediator among its members. This is assisted as necessary by the AMF agents.
The mediator may invite the interested parties to a hearing. He may hear, subject to their acceptance, all persons whose hearing seems useful to him.
The Ombudsperson shall prepare a draft recommendation, which shall be sent by registered letter with notice of receipt or by any other means to reach its date of receipt, to each party.
The parties to the mediation process are invited to communicate to the mediator their possible comments on the draft recommendation, either by registered letter with notice of receipt or by deposit at the Authority's headquarters against the issuance of a receipt.
At the end of the proceedings, a notice of agreement or disagreement on the draft recommendation of the mediator, amended if agreed by the parties, is signed by the mediator and the parties. A copy of the minutes and draft recommendation on which the statement is submitted to each party. Another copy is retained by the Authority. The minutes of observation accompanied in the annex to the draft recommendation on which the statement may be made public subject to the confidentiality of the cases.
Chapter VI
Procedure applicable to decisions made pursuant to Article L. 34-8-I a.
Rule 29
Procedure
When considering, on its own initiative, adopting a decision on the basis of article L. 34-8, paragraph I, of the Post and Electronic Communications Code, the Authority shall make public the measures envisaged. It collects the observations that are made about them for at least one month. The result of these consultations is made public, subject to the secrets protected by law.
At the end of the public consultation, the Autorité transmits the decision it intends to take to the Autorité de la concurrence for advice. It informs the European Commission and the competent authorities of the other member States of the European Community of its draft decision.
The decisions of the AMF made pursuant to a of the I of Article L. 34-8 of the Code of Posts and Electronic Communications are published in the Official Journal of the French Republic.
Chapter VII
Rules applicable to the processing of claims under Article L. 5-7-1
Rule 30
Seizure of the Authority
The procedure for processing claims under Article L. 5-7-1 of the Post and Electronic Communications Code is open to any natural or legal person who is a recipient of a postal service delivery by an authorized provider, as a shipper or consignee.
The referral and the attachments are addressed to the Authority by registered letter with a request for notice of receipt.
The claim must include the following information and evidence:
― the name, name, quality, postal address and, if applicable, the applicant's e-mail address;
the applicant’s social reason;
a copy of the claim filed with the postal provider and the proof of its filing;
- if applicable, a copy of the postal service provider's response;
a copy of the opinion of the mediator of the La Poste Group for the claims filed with La Poste;
– all mails and parts containing all the information that the applicant considers necessary for a good understanding of the claim processing request.
The request for processing may relate to a claim that has not been processed or that has been treated incorrectly or unsatisfactorily by the postal provider.
The Authority may only be seized of a claim processing request after exhaustion of all domestic remedies to postal providers, including the La Poste mediator.
In order to be admissible, the claim must be submitted to the Authority within two months of notification to the applicant of the response of the final notice of appeal of the postal service provider or, in the absence of a reply, after the expiry of a two-month period from the filing of the claim with the final appeal of the postal service provider.
Rule 31
Instruction
When the referral meets all of the conditions referred to in Article 30, the Director of Postal Activities shall designate a rapporteur and a deputy rapporteur.
The rapporteur or his deputy forwards the claim to the postal provider and invites him to submit his comments.
The rapporteur or his deputy shall conduct the instruction with the assistance of the services of the Authority. It may carry out any instruction that it considers useful.
Rule 32
Opinion of the Authority
At the end of the instruction, the rapporteur or his deputy forwards the instruction file to the college, which renders a notice. AMF's notice is notified to the applicant and the postal service provider by registered letter with a request for notice of receipt.
When the claim is raised by a new question, with serious difficulty and in many disputes, the Director of Legal Affairs or his Deputy may call the parties to a hearing before the College. The summons to the hearing is directed to the applicant and the postal service provider at least seven frank days before the hearing date.
Done in Paris, December 16, 2010.
The president,
J.-L. Silicani
