Key Benefits:
The Electronic Communications and Postal Regulatory Authority,
In view of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to electronic communications networks for associated resources as well as Their interconnection (Directive) Access "), as amended by Directive 2009 /140/EC of the European Parliament and of the Council of 25 November 2009;
Having regard to Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of communications networks and services Electronic (directive) Authorization "), as amended by Directive 2009 /140/EC of the European Parliament and of the Council of 25 November 2009;
Having regard to Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for networks and services Electronic communications (directive " Framework "), as amended by Directive 2009 /140/EC of the European Parliament and of the Council of 25 November 2009 (1);
Having regard to Directive 2002 /22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and the rights of users to the Electronic communications networks and services (directive) Universal service "), as amended by Directive 2009 /136/EC of the European Parliament and of the Council of 25 November 2009 (2);
Given the consumption code ;
Given the code of the Posts and electronic communications (hereinafter CPCE);
Given the Act No. 86-1067 of 30 September 1986 on freedom of communication, and in particular Article 22 thereof ;
Seen Law n ° 2011-302 of 22 March 2011 carrying various provisions for adapting legislation to European Union law on health, work and communications Electronic, and in particular Article 17;
In view of the rules of procedure of the Authority;
In view of the letter dated 26 April 2011, by which the Minister responsible for Industry, Energy and the Digital Economy referred the matter to the Authority, for opinion, A draft electronic communications order;
After deliberation on May 10, 2011,
I. -Context of the referral
1. The revision of " Telecom packet " In 2009
The " Telecom packet " 2002 consists of all the Community texts relating to the electronic communications sector, that is to say:
-Directive 2002/19/EC of 7 March 2002 on access to electronic communications networks and Associated resources and their interconnection, so-called "directive" Access " ;
-Directive 2002/20/EC of 7 March 2002 on the authorisation of electronic communications networks and services, known as the Directive Authorization " ;
-Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services, known as the Directive Framework " ;
-Directive 2002/22/EC of 7 March 2002 on universal service and users' rights with regard to electronic communications networks and services, known as the Directive Universal service " ;
-Directive 2002/58/EC of 12 July 2002 on the processing of personal data and the protection of privacy in the electronic communications sector, known as the Directive
On 25 November 2009, the European Parliament and the Council of the European Union adopted two directives and a regulation revising and supplementing the 2002 package.
On the one hand, Regulation No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishes the Body of European Regulators for Electronic Communications (ORECE), a new forum for dialogue and exchange between the various national regulators and the Commission And the Office, which provides support for the work carried out by ORECE. This Regulation, of direct application, entered into force on 7 January 2010, 20 days after the date of its publication: it does not require any transposition measures.
On the other hand, Directive 2009 /140/EC of 25 November 2009, known as the Directive Better regulate ", modified the guidelines" Frame "," Access " And " Authorisation ', whereas Directive 2009 /136/EC of the same day, so-called' directive ' Citizens'rights', amended the directives' Universal service " And " Privacy ". Published in the Official Journal of the European Union on 18 December 2009, these directives came into force the following day. They set the deadline for their transposition to 25 May 2011. In accordance with the case-law of the Court of Justice of the European Union, the entry into force of the Directives has the effect, before their transposition, of prohibiting Member States from adopting measures which would be contrary to the objectives pursued By the " Legislator "
In addition to strengthening cooperation at Community level, the objectives of the Directives are, in particular, the following:
-the strengthening of the independence and powers of the Community. National regulatory authorities " (RNA);
-the strengthening of protection and guarantees granted to all end users;
-the best management of the spectrum.
It is precisely the guidelines of 25 November 2009 that the draft order submitted for The purpose of the opinion of the Authority is, in particular, to transpose, as regards the provisions of a legislative nature.
2. The national transposition process
As early as May 2010, the department responsible for electronic communications conducted a public consultation on a first draft of amendments to the CPCE legislative provisions, aimed at To ensure the transposition of directives. Taking part in this consultation, the ARCEP issued several observations on the draft at that time on 25 May 2010:
-it stressed the need for concrete measures in law for disabled users;
-it took note of the Government's intention to transpose the provisions relating to the protection of persons with disabilities. Consumers, for part in the COPC, and partly in the Consumer Code ;
-it has expressed reservations about the dissymmetric power of the Agency National Frequency of Frequency (ANFR) concerning the settlement agreement of a station Radio.
The Government has decided to transpose " Legislative " By prescription. For example, on September 15, 2010, did the Council of Ministers review the bill " Carrying out various provisions for the adaptation of legislation to the law of the European Union in the field of health, work and electronic communications', of which Article 11, which has become Article 17 of the law promulgated, allows the Government, In particular, to adopt, by way of order, the legislative provisions necessary for the transposition of the directives of 25 November 2009.
Law n ° 2011-302 of 22 March 2011 carrying various provisions to adapt the legislation European Union law on health, work and electronic communications was published in the Official Journal of the French Republic on 23 March 2011. Article 17 of Article 17 allows, for example, the Government to adopt by order
1 ° The legislative provisions necessary to transpose Directive 2009 /140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for networks and Electronic communications services, 2002 /19/EC on access to electronic communications networks and associated resources, as well as their interconnection, and 2002 /20/EC on the authorisation of networks and services Electronic communications;
" 2 ° The legislative provisions necessary to transpose Directive 2009 /136/EC of Parliament and of the Council of 25 November 2009 amending Directive 2002 /22/EC on the universal service and the rights of users in relation to the Electronic communications networks and services, Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 On cooperation between the national authorities responsible for ensuring Enforcement of consumer protection legislation;
" 3 ° All provisions amending the legislative part of the postal code and electronic communications, other than those mentioned at 1 ° and 2 °, in order to increase the efficiency of the management of radio frequencies, in particular in Encouraging the development of the secondary market for frequencies and strengthening the control system for jamming and combating harmful interference;
" 4 ° All provisions of a legislative nature, other than those mentioned at 1 ° and 2 °, of a nature to:
7reinforce the fight against the facts-which could affect the privacy and confidentiality of correspondence in the field of electronic communications, adapting and supplementing the offences and penalties provided for by the section 226-3 of the Criminal Code and the provisions according to which these offenses are sought and found;
-submit The establishment and operation of networks open to the Public and the provision to the public of electronic communications services to comply with the rules on the requirements necessary to respond to threats and to prevent and repair serious breaches of the security of information systems Public authorities as well as operators referred to in Articles L. 1332-1 and L. 1332-2 of the Defence Code, in Adapting and supplementing Article L. 33-1 of the Postal Code and of the Electronic communications and by modifying any other provision for consistency purposes;
" 5 ° All provisions amending the legislative part of the postal code and electronic communications, in order to remedy any errors and clarify the provisions thereof. "
UnderSection 17 of Act No. 2011-302 of March 22, 2011, the order must be made within six months of The enactment of the enabling legislation, and a bill of ratification shall be submitted to Parliament no later than the last day of the third month following publication of the order.
Pursuant to Article L. 36-5 of the CPCE, under which: " The Electronic Communications Regulatory Authority and the posts shall be consulted on draft laws (...) relating to the electronic communications sector ", the draft order shall be submitted for opinion to the ARCEP
Five titles:
-Title I is devoted to the transposition of Community directives and amends, in particular, the CPCE and the Consumer Code ;
-Title II Aims to improve frequency management;
-Title III strengthens the fight against infringements of privacy and security of information systems in the field of electronic communications;
-Title IV clarifies some Provisions of the CPCE; and
-Title V contains the provisions
At this stage, the Authority has not communicated the draft transposition of a regulatory nature. It therefore has only a piecemeal view of the plan for the transposition by the Government of the whole of Telecom package ". The following observations, on the draft order, are therefore issued in the light of the only elements transmitted to the Authority.
II. -Comments from the Authority
The following comments relate, after a first paragraph of definition, to consumer protection, spectrum management and regulator powers.
1. The definition of national regulatory authorities (NRAs)
Like previous transpositions, rearrangement of the new Telecom packet " Clarifies the respective responsibilities, in particular, of the Government and the sectoral regulator. Since the Directives employ different vocables to designate competent authorities at national level, their transposition requires prior work to define the terms used.
Community directives Designate, as appropriate:
-the Member States;
-the national regulatory authorities; and
-according to fluctuating terminology, the competent authorities.
The concepts of Member States and competent authorities do not pose any particular difficulties in The framework for transposition to the extent that, by virtue of the principle of institutional autonomy, each State is free to designate the authority or body which it wishes, in order to ensure the tasks devolved by the
. Institutional in accordance with the objectives of the directives:
The notion of "national regulatory authority" Or " National regulatory authority " (NRA) seems, a priori, to respond to the same logic of institutional autonomy, Article 2 of the Directive. Framework " Defining this authority broadly as: " The body or bodies entrusted by a Member State with any of the regulatory tasks assigned in this Directive and in the specific directives', being specified, at this stage, that, in the case of directives negotiated in English, " Regulatory tasks " ("regulatory tasks" In English) must also be read as "
Court of Justice of the European Union adopts the same preliminary approach by holding that: Neither the framework directive nor Directive 2002/22 designate the bodies of the Member States to which the latter must entrust the regulatory tasks assigned to that authority " (CJEU, 6 October 2010, Base NV and Others, C-389/08, paragraph 23).
However, this statement broadly has the character of a petition of principle, since the Court, bound by the terms of the directives, goes on to say that: ' If, under these conditions, the Member States enjoy institutional autonomy in the organisation and structuring of their regulatory authorities (...), this autonomy can, however, be exercised only in full respect The objectives and obligations set out in this Directive " (ECJ, paragraph 26). The Court adds that: According to Article 3 of the framework directive, the Member States must, in particular, ensure that each of the tasks assigned to the national regulatory authorities is carried out by a competent body, guarantee the independence of these authorities (...) And ensure that the authorities exercise their powers impartially and transparently " Paragraph 29.
The institutional autonomy of the Member States is therefore constrained by the characteristics which the directives impose on NRAs and which are laid down in Article 3 of the framework directive. This Article provides for two types of rules on the independence of NRAs:
-a quota rule for the independence of NRAs for all the tasks devolved to them; this rule should apply where the Member States retain the Ownership or control of electronic communications operators;
-an absolute rule of independence, which must be respected even if the Member States have no interest in the historic operator, but which only applies to Some of the RNA missions: In this case, the regulation of the ex ante market and the resolution of disputes.
If the first rule, provided for in point 2 of Article 3, has been in existence since 2002, the second rule, provided for in point 3 bis of the same article, is more demanding in terms of As a result of the 2009 review.
As a result, the term "national regulatory authority" Cannot be assimilated to that of "Member State" It is for the purpose that the directives use one or the other of these words, as confirmed by their drafting. For example, point 4 of Article 12 of the Directive " Framework " Provides that: " Member States shall ensure that the competent national authorities may " Work " In collaboration with the national regulatory authorities ". Similarly, point 2 of Article 13ter of the same directive provides that operators may be subject to a security check, which may be carried out by ' A competent national authority "and the results of which are communicated" To the national regulatory authority ".
ii) The contingent requirement for independence, for all tasks devolved to NRAs:
The 2 of Article 3 of the framework directive specifies the conditions of independence that must be met:
-independence between NRAs and electronic communications operators;
-effective structural separation between operator ownership or control functions and regulatory function ("regulatory function") In English).
Thus, where the state owns or controls an electronic communications operator, the NRA must, for all its functions, be structurally independent of the property and control functions of the Enterprises. This contingent obligation-because it is linked to national circumstances-must be respected in France, since the state holds shares of the incumbent electronic communications operator.
Independence to respect the Community requirements must be assessed in the light of the case-law of the Court of Justice and the guidelines of the European Commission.
Thus, having held that: The maintenance of effective competition requires that the formalisation of technical specifications, control of their application and authorisation be carried out by an entity independent of public or private undertakings offering goods or Competing services " (ECJ, 23 October 1993, Decoster, C-69/91, paragraph 19), the Court of Justice clarified and strengthened the obligation of independence: As far as the public body is concerned, the term "independence normally refers to a statute giving the body concerned an opportunity to act freely, free from any instruction and pressure". (CJEU, 9 March 2010, Commission v Germany, C-518/07, paragraph 18). In particular, the Court states that: In carrying out their tasks, the supervisory authorities must act in an objective and impartial manner. To this end, they must be free from any external influence, including direct or indirect influence of the [federal] state or the Länder, and not only the influence of the controlled bodies " Paragraph 25). In particular, in the field of electronic communications, the Court finds that the institutional autonomy of states concerning NRAs is limited by the very terms of the Community framework, noting that: The framework directive confers on the NRA, not the national legislator, the assessment of the need for market regulation ', and taking care to highlight those of the provisions: ' Which are expressly addressed to NRAs " (CJEU, 3 December 2009, Commission v. Germany, C-424-07, paragraphs 74 and 75).
Drawing on the consequences of Community case-law, the European Commission considered, in a postal case, that: The same authority of the state which controls La Poste is (...) clearly responsible for ensuring its profitability and financial health. The fact that these powers are located simultaneously in several directorates of an administration submitted to the same minister is by no means sufficient to demonstrate the independence of the control exercised. ' (Commission Decision of 23 October 2001 on the absence of exhaustive and independent monitoring of the tariff and technical conditions applied by La Poste to the routing undertakings for access to its reserved services, C (2001) 3186, OJ L 120/19 of 7 May 2002, paragraph 82). And the Commission concludes: In the light of the existing regulatory framework, the Commission finds that the separation of the functions of economic and financial supervision and of regulation as described by the French authorities is not such as to offer guarantees of Neutrality and sufficient independence in the supervision of relations between La Poste and the routing undertakings " (paragraph 83).
Consequently, and since the control of the incumbent electronic communications operator is provided by the Directorate of the Budget and the Directorate-General of the Treasury, to which the State Interests Agency (APE) - Service with national competence-is connected, compliance with the provisions of point 2 of Article 3 of the Directive ' Framework " Prohibited that any of the tasks assigned to NRAs could be entrusted, in France, to a central directorate of the ministries of the economy and finance.
(iii) The absolute requirement of independence for certain tasks of NRAs:
La Directive 2009 /140/EC inserted, in Article 3 of the framework directive, a point 3a which states, inter alia, that: The national regulatory authorities responsible for the regulation of the ex ante market or the settlement of disputes between undertakings (...) shall act independently and shall not seek or accept any instructions from any other body in respect of Concerning the performance of the tasks assigned to them under national law transposing Community law '.
Consequently, the new Directive clearly strengthens the independence of NRAs with regard to the achievement of Their asymmetric market regulatory tasks, as provided for in Article 7 and Following of the Directive " Framework ", and their task of settling disputes between undertakings. This independence must be respected in all circumstances and is not subject to any conditions.
In practice, and taking into account what is recalled above regarding the French situation, item 3 bis of Article 3 adds nothing to the French obligations to respect the principle of the independence of NRAs. The fact remains, however, that the amendment of the Directives will lead the European Commission to be even more vigilant in assessing compliance with the principle of NRAs' independence by national
. What has been said above that the directive " Framework " Objects to a central management of the ministries of the economy or finance any of the tasks expressly conferred on NRAs by the directives. In Community law, each reference to " National regulatory authorities " (or " National regulatory authorities ") In the directives necessarily refers, for France, to the competence of the ARCEP or, failing that, to the competence of an administrative authority respecting the criteria of independence required by Community
. In the future, it will be possible for the French authorities to notify the European Commission, as national regulatory authorities, of the ministerial directorates which are under the authority of the ministers responsible for the economy or Budget.
As a result of these clarifications, the Authority is now reviewing the Key aspects of the implementation by a thematic approach.
2. Consumer protection
The " High level of consumer protection " Is, in accordance with Article L. 32-1 of the CPCE, one of the principles of the regulation of the electronic communications sector for which the ARCEP is responsible.
The Community provisions relating to users, as set out in Chapter IV of the Directive " Universal service ", entitled" Interest and rights of end users ", concern mainly information for end users, guarantees for disabled users and quality of service.
i) Information for end users :
End users, within the meaning of Community directives, comprise two distinct categories of users: consumers and other users. In the absence of a legal definition in French law, the Court of Cassation has recently held, in the light of Community law and the case-law of the Court of Justice of the European Union, that the concept of consumer is intended only for natural persons (Cass., 1st civ., 2 April 2009, SLG Canal CE c/Dimension Data France, No. 08-11.231). In principle, and unless expressly stated otherwise, the qualification of consumers is reserved for non-professional natural
. Universal service " Provides electronic communications operators with an obligation to provide two types of information to end users:
-strictly contractual information: previously restricted to consumers only, The obligation to deliver this information now also benefits the " Other users who request it " (Article 20 of the Directive) Universal service ") And its respect must be verified by the " Member States " ;
-information that can be described as "extracontractual", which must be available at any time, even outside the conclusion of a contract, in order to enable all end users to make an informed choice; the Control of this obligation is the responsibility of the " National regulatory authorities " (Article 21 of the Directive) Universal service ").
These two articles have, since the 2009 revision, the same scope: they potentially benefit all end users. However, while the implementation of Article 20 is the responsibility of the " Member States ", that of Article 21 is the responsibility of" National regulatory authorities ".
In national law, in the previous transposition, the party was taken to apportion these guarantees, in part in the CPCE, for part in consumption code, depending on whether they applied to all users or only to consumers and other non-professional users. Thus, the contractual information is listed inArticle L. 121-83 of the Consumer Code, to which the II of Article D. 98-12 of the CPCE refers. On the other hand, the extra-contractual information is, mainly, listed in the II of Article D. 98-12 of the CPCE, without reference to the consumption code to the CPCE.
This balance, fragile and unreadable, no longer reflects the state of Community law, which is now extended to all users. By transferring all the consumer and non-professional user provisions to the Consumer Code, the project not only Does not address the existing imperfections but, in addition, creates new imperfections. It establishes, in fact, a distinction between consumers and non-professional users on the one hand, and professional users on the other hand, which does not result from the Community framework and which is not justified by the purposes of the Directives.
According to the draft, the n of Article L. 33-1 of the CPCE would be supplemented by details of the extra-contractual information to be used only ' Business users ". This limitation of the scope of the legislative part would be declined in part by regulation, since the last paragraph of I of Article L. 33-1 provides that information for professional users will be specified by Decree. In return, the Consumer Code, which would retain Article L. 121-83 concerning contractual information for consumers, would be supplemented by a New Article L. 121-83-1 concerning extra-contractual information for consumers.
Since the ARCEP does not have the regulatory part of the transposition project, it can only assume that the Government will, in part, CPCE, the consequences of the choices envisaged in part Legislative.
These choices do not comply with the directive " Universal service " The
of a provision in a particular code is not insignificant for the Authority, insofar as, with the exception of an express exception, it cannot exercise its power of sanction, which it derives from Article L. 36-11 In the case of ignorance of the provisions of the CPCE and of those taken for its application, in accordance with the letter of that article and its interpretation by the Constitutional Council (Decision No. 96-378 DC of 23 July 1996 On the telecommunications regulatory act, paragraph 16). A transposition into another code which the CPCE therefore entails, ipso facto, the exclusion of all responsibility of the ARCEP in the implementation of the requirements of the
. Legislators are free to transpose where they wish the provisions of Article 20 of the Directive " Universal service " As regards contractual information, which is the responsibility of the Member States, the same is not true of the provisions of Article 21 of the Directive, relating to extra-contractual information. As soon as the National regulatory authorities " Are expressly mentioned in Article 21, only the ARCEP-or any other authority fulfilling the independence criteria laid down by the European Commission and the Court of Justice of the European Union-may be responsible for monitoring compliance with Their obligations by operators, concerning non-contractual information, whether they are intended for consumers or other users. Moreover, it follows from contacts made by the ARCEP with its European counterparts that all Member States have provided for the transposition of Article 21 of the Directive. Universal service " -and for most of them, also the transposition of Article 20-into a sectoral law on electronic communications. Therefore, the draft new article L. 121-83-1 of the consumer code disregards the directive "
Beyond these essential legal considerations, the administrative expediency leads to the question of the coherence of public action in favour of end users. Indeed, the action of the Authority in this area is actively sought by Parliament. Thus, the legislator gave the ARCEP, by the Law n ° 2010-123 of 9 February 2010 on the public undertaking La Poste and the postal activities, the mission to deal with Postal service users' complaints-whose Postal Directive did not require devolution to the PFRA. It also has, by means of Act No. 2008-3 of 3 January 2008 for the development of competition in the service of consumers, requested the Authority to make an evaluation report Legislation that, however, was included in the Consumer Code. In this context, it would therefore be paradoxical for the regulatory authorities to ignore the directive " Universal service " To the detriment of end users, by excluding from the CPCE the guarantees given to consumers in the field of information. This paradox is, moreover, accentuated by the fact that the draft order itself, on another point, also supports the action of consumer protection by the ARCEP, by providing, in a new Article L. 44-3 of the CPCE, the Participation of the Authority in the fight against fraudulent and abusive numbers and services, that point 2 of Article 28 of the Directive " Universal service ", mentioning" Competent authorities " In
light of the future issues of network neutrality, the Authority will not be able to exercise its regulatory mandate fully, if the provisions relating to end users are to be found Distributed, and inconsistently, between multiple codes. In particular, pursuant to a new Article L. 36-15 of the CPCE, whose draft order provides for the establishment, the Authority may lay down minimum requirements for quality of service. These requirements will have consequences for the content of the information which operators are required to provide to users, in particular on the basis of Article 21 of the Directive. Framework ". Consequently, the draft order, in its version submitted to the Authority, would lead to it being competent, in order to ensure part of the enforcement of one of its regulatory decisions, than to professional users, to Exclusion of consumers and non-professional users. In addition to its frustration with Community law, this choice of transposition therefore hinders the action of the Authority, while exposing end users to unnecessary complexity.
Finally, the legal opportunity must take account of The intelligibility and accessibility of the law, which is also a condition of its constitutionality. In this respect, it is clear that the transposition of the specific provisions relating to consumers of electronic communications services in the consumption code is justified only by the contingencies of the codification. The Consumer Code belongs to the family of large codes, such as civil code, are intended to contain, in principle, only general provisions applicable in all sectors. On the other hand, the CPCE belongs to the family of codes " ", whose role is precisely to provide for provisions that are non-generalizable specific to a given activity or market. If, today, the consumer provisions for electronic communications services are found in a chapter in the Consumer Code that Contains, in combination, sectoral provisions relating to infant formulae, bakeries and moving transport, this fact is only a result of the vagaries of codification. The first sectoral stratum of Chapter I of Title II of the book Ier of the legislative part of the code of consumption is relative to infant formula, and this choice of codification could be explained by the absence of sector code In
field of electronic communications, returning to the spirit of a clear and consistent codification implies that the Consumption the only provisions of common law, To which, moreover, the I of Article D. 98-12 of the CPCE refers, that is, the Articles L. 111-1 and L. 121-18 of the Code of Consumption. On the other hand, all the sectoral provisions relating to electronic communications should be included, mainly, in the ECCC. Accordingly, the provisions of section 11, relating to " Contracts for electronic communications services ", of Chapter I mentioned above in the Consumer Code, should be transferred to the CPCE, to Burden on the legislator, possibly, to provide for the competence of the officials responsible for consumption, in order to monitor compliance with the obligations arising from the newly transferred articles to the CPCE
Transfer of sectoral provisions to the CPCE Currently in the Consumer Code. At the very least, it is necessary for the new transposition provisions to be codified, at the same time, in the Consumer Code and in CPCE.
In any event, at this stage, the ARCEP issues a negative opinion on the draft ofArticle L. 121-83-1 of the Consumption and requests that the scope Article L. 33-1 of the CPCE is extended to all users.
ii) Users with disabilities:
Revision of " Telecom packet " Strengthened safeguards for disabled users. Point 1 of Article 7 of the Directive " Universal service " Provides that: " Member States shall take special measures to ensure that end-users with disabilities (...) have access to services (...) of a level which is equivalent to that enjoyed by other end users'. Even more daring because its scope is extended beyond the universal service to all operators. It provides that: ' Member States shall ensure that the competent national authorities are in a position to fix, where appropriate, the obligations to be fulfilled by undertakings providing publicly available electronic communications services in order to End users with disabilities: (...) (b) take advantage of the choice of undertakings and services enjoyed by the majority of end-users. "
The text submitted for opinion to the Authority lays down, in Article L. 33-1, the principle of access by disabled users to services of Electronic communications and emergency services equivalent to that enjoyed by the majority of users, without further elaboration throughout the project.
In its response to the public consultation, the Authority indicated in the Government that it would be appropriate to provide for concrete measures to enable To achieve the objectives set out in the Directive. In view of the interference with the freedom to undertake such measures, these measures can only be provided by law. The Authority is aware of the difficulty in laying down rules in this area and the need for a minimum level of consultation between the players in the sector.
However, the Authority wishes to make proposals here which can already be Inserted in the order, in accordance with the provisions of the Directives.
The CPCE could provide that products and offers should be adapted to the needs of disabled end-users. On the one hand, terminals adapted to each type of disability must be available on the market at a reasonable price, with a faculty of exchange of these terminal equipment within seven days of their delivery, when their Ergonomics proved to be inadequate to meet the needs. On the other hand, operators will have to adapt their offers, for example, by offering services " Any data " To those who could not use the minutes of the vote. Finally, operators should ensure that their trade officers are trained to best meet the needs of disabled users.
These provisions can be written simply in the order, and supplemented by a Obligation to disseminate contractual and non-contractual information as well as invoices on materials adapted to the needs of persons with disabilities. In this respect, it is essential that operators' websites be made accessible to the visually impaired by using a range in Braille or voice software.
The Authority proposes to insert, in the Two new articles thus drafted, after the new Article L. 33-10 envisaged by the draft order:
" Art. L. 33-11. -Products and offers for access to electronic communications services are adapted to the needs of disabled end-users.
" To this end, distributors of terminals shall make available to these users a range of terminals adapted to each type of disability referred to in Article L. 114 of the Code of Social Action and Families. These terminals are available at a reasonable rate. In case of inadequacy of the ergonomics of a terminal to their needs, the users concerned may, within seven days after the delivery or delivery of this terminal, proceed to its exchange without penalty.
" The electronic communications operators shall provide all their commercial agents with adequate training to meet the requirements referred to in the first
. Art. L. 33-12. -The information referred to inArticle L. 111-2 of the Consumer Code, the information relating to products and tenders in the Article L. 33-10 as well as those issued voluntarily by an operator to all its customers shall be broadcast on suitable media for disabled users. They receive their invoices in a format adapted to their needs. "
This last article could only take effect on June 30, 2012.
iii) Keeping the number:
One of the new features of the" Telecom packet " Will be directly perceptible to end users: the period in which subscribers can transfer their number from one operator to another is reduced to one day, in accordance with Article 30 of the Directive. Universal service ".
porting or storing the number allows a fixed or mobile subscriber to continue to receive telephone communications on the same number when changing the operator. To this end, and thanks to the " Single window " (3), the subscriber directly contacts the new operator of his choice in order to enable him to carry out all the formalities relating to the application for termination of the old contract, the preservation of the number and the subscription of a new contract. In this way, the subscriber directs the new operator to take the necessary steps with the former operator. To be carried out, both operators must exchange information before carrying out the technical implementation of the number port. In practice, the information exchange phase can last for a few days, while the service interruption on the day of the portage has been limited, by the ARCEP, to four hours for the " Portage " Mobile and for the " Portage " Fixed from 1 January 2012.
By providing, in the I of Article L. 44 of the code of posts and electronic communications, that: The deadline for carriage is one working day, subject to the availability of access (...) ", the project is in conformity with the Community provisions.
The ARCEP points out, however, the importance of the investments necessary for operators to Bring it into line with the new Community rules. Legal certainty in this area is therefore essential. The interpretation of the Community provisions, which are unambiguous in this case, must therefore be clearly explained by national law.
Point 4 of Article 30 of the Directive. Universal service " Shall apply, successively, the same period of one working day to two different things: the period of activation of the number, in accordance with the first subparagraph of point 4, and the period of loss of service, pursuant to the second subparagraph. The period of interruption of service, the final phase preceding the effective activation of the number, is included in the total activation time, necessarily longer than the loss of service, since it involves, inter alia, an exchange between the Operators.
It is therefore important, without being aware of the letter, to give a useful and reasonable effect to the Community provisions and, to that end, to determine the starting point for the period of one working day in which the subscriber, who has concluded a Carriage agreement, is entitled to obtain the activation of its number, in this case, the time limit Referred to in the first paragraph of point 4 of Article 30. In this respect, two interpretations are, a priori, possible:
-either the porting agreement is materialized by the conclusion of the contract between the subscriber and the new operator;
-either this agreement exists only from the moment when the former operator Has also agreed to the porting process.
The ARCEP prefers the second interpretation. In a three-player procedure-the subscriber, the former operator and the new operator-it is in accordance with the right to consider that the port agreement is concluded only when the former operator has also agreed, not at the moment Where the subscriber has signed a contract " Bipartite " With its new operator. Moreover, the single-window system, making it possible to contact only the new operator, is not widespread in all the Member States where subscribers are, at times, obliged to contact both operators: the old and the new. In addition, the ARCEP collected comments from all operators and concluded that the choice of the second interpretation would be better proportionate and better adapted from a technical and financial point of view. This choice will allow for quicker implementation by operators of Community obligations, which has an advantage for consumers and promotes the fluidity of the market. ARCEP also found that the application of the first interpretation would not provide any additional benefit to consumers in relation to the application of the second.
ARCEP therefore draws the Government's attention to the need for To specify, where appropriate, by regulation, that the one-day period referred to in Article L. 44 of the amended CPCE will only run as of the time when the former operator has given its consent to the new operator, through the transmission of the information Necessary for the technical implementation of the conservation of the Number.
In addition, given the difficulties in interpreting the directives, the deadlines for their transposition into national law and the time required for the technical implementation of the new processes, operators will not be able to Measure to meet their obligations before the end of 2011 in metropolis, and before mid-2012 in the ultramarins departments. As the State Council recently said: The fixing of a time limit for the implementation of the necessary arrangements is (...) by itself not incompatible with the provisions of the Directive which, if they imposed on France the adoption of the legislative and regulatory provisions Necessary before 2 December 2006, allowed for a reasonable period of time for the implementation of the necessary arrangements (...) " (4). As regards an obligation with an automatic financial penalty, moreover, independent of the existence of damage, the ARCEP recommends that the new provision set out in the order be accompanied by transitional measures in order to To avoid double uncertainty before the civil judge: that operators fear the conviction and that consumers believe, wrongly, holders of a debt.
Finally, to give full effect to the amendment of Article L. 44 of the CPCE, which specifies that " The effective port of the number entails the termination of the contract which binds [the former] operator to the subscriber ", it is essential to modify, also, the article L. 121-84-2 of the Consumer Code which provides that the period of notice for termination of its contract of Electronic communications services by a subscriber may not exceed ten days. Indeed, a contradiction could arise between the maximum period of ten days applicable to all the termination of contracts for electronic communications services, under the Href=" /viewCode.do?cidTexte=LEGITEXT000006069565&dateTexte= &categorieLink = cid"> consumption code, and the maximum one day, applicable only to those of the terminations that have a request to retain the number. This inconsistency argues, in the strongest terms, for the transfer or, at the very least, the duplication, in the COPC, of all the sectoral consumer provisions.
3. Spectrum Management
One of the objectives of the review of the " Telecom packet " Was an evolution of the procedures for spectrum management, in particular in order to strengthen the implementation of the principles of technological neutrality and services.
i) The principles of technological neutrality and Services:
Articles 3 and 4 of Article 9 of the Directive " Framework " Pose, respectively, the principles of technological neutrality and services. Thus, unless exceptions are made, " Member States shall ensure " That all types of technologies used for electronic communications services, on the one hand, and all types of electronic communications services, on the other, " May be used in the reported frequency bands available for electronic communications services ". The Community provisions thus impose an obligation on the Member States to carry out their duties. It may, in principle, be derogated from the principles of neutrality only on grounds, in particular of general interest, listed in the Directive.
Article 9a of the Directive " Framework " Specifies transitional measures for the gradual compliance of the conditions and authorisations for use in the field of frequencies. The interpretation of this Article requires particular attention, with a view to correct and readable transposition into national law.
According to point 1 of this Article, Member States may permit holders of authorisations For a period of five years from 25 May 2011, which is the deadline for transposition, to request a review of their authorisations, with a view to the abolition of the existing restrictions on the Principles of neutrality. This deletion, by expanding the range of possible technologies and services in a given frequency band, may require or justify a substantial modification of the current authorisations, in particular the increase in fees , the decrease in the amount of spectrum allocated or the extended coverage of the territory. Consequently, the Directive provides that applicants, in view of the consequences of applying the principles of neutrality to their particular situation, may withdraw their application, in which case the right initially allocated remains unchanged. In any event, the forecasts of point 1 are only a possibility which the Member States are free to open to spectrum attributors.
This point seems to be vitiated by a contradiction, to the extent that its scope Application is, under the first paragraph, limited to authorisations which, granted before 25 May 2011, will remain in force on 25 May 2016. Conversely, the last paragraph specifies that, in the case of withdrawal of the application, the original right remains unchanged until 25 May 2016, or until the expiry, if it is earlier than that date, of the authorisation. It must therefore be deduced that point 1 is applicable to all the authorisations in force as of 25 May 2016 and to the date on which the request for review estintroduite.
Point 2 of the same article states that after 25 May 2016: (...) the Member States shall take all appropriate measures to ensure that [the principles of technological neutrality and service] apply to the other general authorisations or individual rights of authorization and Spectrum allocations for electronic communications services existing as of May 25, 2011." This provision therefore provides for consistency with the principles of neutrality of all administrative authorisations relating to the use of frequencies.
Finally, points 3 and 4 of Article 9a of the Directive " Framework " Contain an apparent contradiction. While item 3 is aimed at " To promote fair competition ', point 4 exempts from the obligation of an open and transparent procedure imposed by Article 5 of the Directive ' Authorisation ', the measures taken on the basis of Article 9a of the Directive ' Framework ". In actual fact, those provisions must be read as implying that, where the application of the principles of neutrality to the current authorisations leads to the return of part of the allocated spectrum, the competition rules shall apply to That only part returned, except for the part on which the rights are maintained to the original contractor, without any selection procedure.
The draft order transposes all of these provisions to Article L. 42 of the CPCE, With regard to the perennials and, in an uncodified article, With regard to the transitional provisions.
The Authority takes note of the reference in Article L. 42 of the CPCE to the grounds for derogating from the principles of neutrality. The Authority wishes, however, that the principles of technological neutrality and services be mentioned, in a positive way, in the CPCE-by supplementing the CPCE II of L. 32-1 by a 17 ° -, so that these principles are not Only deducted by, a contrario, any restrictions imposed on them. Furthermore, it is also desirable that Article L. 41, on the power of the Prime Minister to fix the national allocation of frequency bands, mention the principles of neutrality.
Conversely, the Authority considers that the article 56 not codified in the draft order imposes obligations that are not strictly derived from the directives and that may be contrary to their purposes.
The ARCEP takes two types of decisions to allocate frequencies:
-decisions of general scope, which set out the main technical rules applicable in each frequency band; taken on the basis of Article L. 42 of the CPCE, these regulatory decisions are subject to approval by the In application of Article L. 36-6 of the CPCE; where a band of frequencies does not give rise to exclusive rights of use for the benefit of certain operators or users, such decisions shall constitute " General permissions " In the sense of Community law and their respect allows the use of the bands concerned; this is the case, for example, with regard to amateur radio;
-authorisations for the use of frequencies which specify the specific requirements to be Respect for the use of frequencies for exclusive use by an operator; these are individual decisions issued by the Authority, either by the water, pursuant to Article L. 42-1 of the CECP, or, in the case of scarcity of the resource On the basis of a selection procedure pursuant to Article L. 42-2. ; this is the case, for example, of the frequencies used for mobile telephony.
Where necessary, the authorisations for the use of the frequencies, which confer rights on their owners, are intended to clarify the decisions of the General scope of the band concerned. Thus, the regulation of the use of a frequency band is, as the case may be, governed by a one-or two-tier system.
By providing that the ARCEP " Removes ", after May 25, 2016, the restrictions on the principles of neutrality on all the former licences for the use of frequencies still in force on that date, the II of Article 56 of the draft order puts the ARCEP in position of Linked competence to take a determined measure, without any possible assessment, whereas the wording used in the directive is more flexible. Since the application of the principles of neutrality can substantially modify the current authorisations, it can lead to adverse effects on the good management of the spectrum or not desired by the attributors
The automatic application of the principles of neutrality would clash with two pitfalls:
-it would be liable to hinder fair competition, including point 3 of Article 9a of the Directive. Framework " Nevertheless requires respect; more generally, point 6 of Article 5 of the Directive " Authorization " Provides that the Member States " Shall also ensure that competition is not distorted by the transfer or accumulation of rights of use of radio frequencies." Thus, additional rights cannot be granted automatically, irrespective of its potential effects in terms of competition;
-in accordance with the case-law of the Council of State (EC, 30 June 2006, Nine Telecom Company, No. 289564, Rec. 309), the authorisations for the use of frequencies are rights-creating decisions. In the same way, recital 36 of Directive 2009 /140/EC of 25 November 2009 focuses on respect for the Prior acquired rights ". The fact remains that the rights thus acquired on the spectrum do not constitute an absolute right of use, beyond the technologies and services for which the users have been explicitly authorised. Therefore, where the principles of neutrality-which allow, in themselves, an extension of existing rights-are likely to lead the attributors, in the name of fair competition, to return part of their frequencies, The automatic application of these principles would undermine the rights acquired.
As an example, the European Commission adopts a similar approach of waiting for the initiative of the operator enjoying a right to remit it to the Commission. Cause. Thus, it has provided for the release of frequencies to permit the issuance of mobile communications on board ships, stating that: " Member States which, before the adoption of this recommendation, have granted in the bands of frequencies (...) made available for the operation of the systems [for mobile communications on board ships], individual rights Exclusive use (...) must, on the occasion of the first review of the amendment, the extension or renewal of these exclusive rights of use, amend those rights on the basis of (...) on the law of the European Union " (5).
It follows that, in order to ensure the fair competition arising from the acquired rights, point 2 of Article 9a of the Directive ' Framework " Must be read as follows. It imposes on the competent authorities-ARCEP, but also, where appropriate, the Prime Minister, with regard to the national allocation table for frequency bands -, as of 26 May 2016, an obligation to result in respect of the " General authorisations ", of a regulatory nature: on that date, they must be in conformity with the principles of neutrality, so that these principles" Can " Be made effective, in accordance with the wording of points 3 and 4 of Article 9 of the Directive ' Framework ". On the other hand, on the same date, point 2 of Article 9a imposes on the Authority only an obligation of resources relating to authorisations for the use of frequencies, of an individual nature: they must be brought into conformity, subject to reservation That this compliance does not affect fair competition. In this way, the ARCEP will automatically apply the principles of neutrality to the new individual licences for the use of frequencies, and will carry out a review, on a case-by-case basis, of the old authorisations still in progress, for To verify that the principles of neutrality can be applied.
As an example, the application of the principles of neutrality to authorizations issued in the 3.5 GHz band to local radio loop operators could lead to: In particular, an increase in the associated royalties to ensure conditions Fair competition. It is appropriate to ensure that the operators concerned are not obliged to such developments if they are not desired and may jeopardise their project.
The ARCEP therefore issues an unfavourable opinion on the Provision envisaged in the draft order and proposes the following wording, which is faithful to the wording and spirit of the Directive " Framework ", taking into account the explicit reference to the principles of neutrality in the COPC:
" Article 56. -I.-The holder of an administrative authorisation for the use of radio frequencies which has been granted before the promulgation of this order and which remains valid for a period of at least five years after 25 May 2011 Request, before 25 May 2016, the Electronic Communications Regulatory Authority and the posts to review the restrictions on the use of the frequencies imposed on the holder in accordance with the provisions of paragraphs II and III of Article L. 42. A Council of State decree determines the modalities of this review.
" II. -As from 25 May 2016, the Electronic Communications and Postal Regulatory Authority shall take all appropriate measures to ensure that the removal of restrictions on the use of frequencies other than those necessary for the Title II and III of Article L. 42 shall apply to all other authorisations for the use of frequencies allocated prior to the promulgation of this Ordinance and still in force as of 25 May 2016. Within this framework, the Electronic Communications and Postal Regulatory Authority shall take the necessary measures to ensure effective conditions of
. III. -Effective May 25, 2016, decisions taken pursuant to Article 42 shall be made in accordance with the objective set out in Article L. 32-1 [Principles of Technological Neutrality and Service], subject to Restrictions required under Article L. 42 of the Postal Code and electronic communications under Article L. 42. "
(ii) The other rules applicable to spectrum authorisations:
As in Article 9a of the Directive" ', point 1 of Article 17 of the Directive ' Authorization " Also requires compliance of the " General permissions " And " Individual rights of use " Of frequencies.
The rules to be observed in compliance are wider than those referred to in Article 9a of the Directive. ", since they include, in the end, the principles of neutrality and the other rules referred to in Articles 5 to 7 of the Directive" Authorisation ".
In addition, the date to be respected is here on 19 December 2011, not on 25 May 2016 as indicated in the Directive." Framework ". However, for the principles of neutrality, the " Legislator " Community has heard the provisions of Article 9a of the Directive prevail ' Framework " On those of Article 17 of the Directive ' Authorisation, according to the terms of the latter article ("without prejudice to Article 9a of Directive 2002 /21/EC"). Thus, section 17 is without consequence on the date of compliance with the principles of neutrality.
These provisions were transposed to the I of the non-codified section 56 of the draft order. The Authority questions, however, the reference made by the draft to Article L. 42, in its version resulting from the amendments to the draft, to the extent that the reference does not impose any specific action on the Authority
Transpose item 1 of Article 17 into a separate article, as follows:
" Article 56 bis. -The Electronic Communications and Postal Regulatory Authority shall bring into conformity with the provisions of Article L. 42-1 by 19 December 2011 at the latest administrative authorisations for the use of frequencies issued Before the coming into force of this Order and still in force on December 19, 2011.
" Where the application of the first subparagraph leads to the restriction or extension of existing rights of use, the Electronic Communications and Postal Regulatory Authority may extend the corresponding authorisations until 30 September 2012 at the latest, provided that such a measure does not affect the rights of other users. The Electronic Communications and Postal Regulatory Authority shall notify the European Commission of this extension and indicate the reasons for this extension. "
iii) The fight against harmful interference:
The draft order contains provisions to strengthen the fight against harmful interference, which is permitted in 4 ° Article 17 of Law No. 2011-302 of 22 March 2011.
In the first place, Article L. 33-3-1, in its proposed drafting, lays down the principle of the prohibition of the acquisition, manufacture, transfer and installation of any device Intended to render communications devices inoperative Electronic, both for the show and for the reception. By way of derogation from this rule, trade in such devices may only be authorized by the General Secretariat of Defence and National Security (SGDSN), and their installation is permitted only in the strict framework of activities which have Relating to public safety, defence, state security or the activities of the State in the field of criminal law.
This new wording puts an end to the possibility, provided for in Article L. 33-3, of installing Interference in concert halls. The ARCEP takes note of this change.
In the second place, the draft order supplements Article L. 42-1 by a III.
Analog audiovisual broadcasting will release new frequencies from the " Digital dividend ", in the 800 MHz band, assigned to mobile service effective December 1, 2011. For example, mobile services and broadcasting services will co-exist in adjacent frequencies around 790 MHz, which may lead to interference problems. The amendment envisaged in the III of Article L. 42-1 of the CPCE provides that mobile operators assigned to frequencies previously assigned to audiovisual broadcasting shall, on the one hand, take " The measures necessary to prevent and treat harmful interference caused by their networks to the reception of audiovisual communication services broadcast by broadcast stations authorised previously by the Council Superior audiovisual ", on the other hand, support" Costs related to the collection and processing of related claims " To " Harmful interference caused by their networks to the reception of audiovisual communication services ".
The ARCEP includes this provision, which the Government wishes to oblige mobile operators to take Technical measures necessary to prevent and treat the interference of previously commissioned broadcasting stations and to bear the costs associated with the processing of claims relating to interference caused by their Networks, without requiring them to collect and process these claims.
The Authority notes that the obligation to take the necessary technical measures to avoid interference whose operators are originally thought to be redundant seems to be redundant with the rules of the national frequency band distribution table, which in case of Interference between two subpoenas, impose on the operator of the assignment last recorded in the national frequency file to stop the interference.
The Authority also notes that the obligation with respect to claims arising Viewers do not extend to the collection and processing of these Claims. As a result, the ARCEP can only encourage the strengthening of the existing system whereby the National Frequency Agency (ANFR) collects and processes claims relating to jams, pursuant to a convention (" PRTV ") Which it has signed with the Conseil supérieur de l' audiovisuel (CSA), on the basis of22 of Law No. 86-1067 of 30 September 1986 on freedom of communication. This agency is, in fact, the only administration of the state to have an overall vision of radio frequencies, and it has the legal and technical competence to verify compliance with their obligations by the actors
However, the Authority has doubts as to whether the financial burden arising from the handling of interference complaints caused by mobile networks should be weighed against mobile operators. Such a financial burden can lead operators to reduce the amount of auctioning they will pay for the allocation of these frequencies. In addition, the Authority questions how such a financial contribution would be made. In any event, the last sentence of Article 43, which requires operators to inform the public authorities " Measures taken to this effect " creates an ambiguity about the burden that is necessary for them and should be deleted.
The Authority therefore wishes that the burden of the cost of collecting and processing interference claims should not be Imposed on mobile operators.
4. The powers of the regulator
At the same time as it strengthens their independence, the new Community framework strengthens the powers of national regulators.
i) Dispute resolution:
Pursuant to Article L. 36-8 of the CPCE, the Authority may settle disputes between operators, specifying " The equitable, technical and financial conditions " In which the dispute must be resolved. The Constitutional Council decided that the decisions taken by the Authority to settle disputes " Constitute binding decisions taken in the exercise of powers of public authority " By a " Administrative authority " (Decision No 96-378 DC of 23 July 1996 on the Telecommunications Regulation Act, paragraph 21).
Written consent to disputes between operators, the competence of NRAs has been extended by Article 20 of the Directive. Framework, in disputes between " Such undertakings and other undertakings of the Member State which have access and/or interconnection obligations under this Directive or specific directives. ' Concretely, the ARCEP will now be able to settle disputes between a provider of the information society (PSI) and an electronic communications operator. The draft order provides for the completion of the II of article L. 36-8 of the CPCE, listing the subject-matter of certain disputes which may be referred to the Authority by a 5 ° reading: The technical and tariff conditions for the carriage of traffic between an operator and a company providing communications services to the public online." The Authority gives a favourable opinion on this wording.
(ii) The power of sanctions:
Article 10 of the Directive " Authorization " Modifies the enforcement powers of NRAs to make it more effective. Thus, the time limit in which the application must be complied with by the person concerned is freely determined by the NRA, in a reasonable manner. The authorities have the power to impose periodic penalty payments, injunctions and the right to impose sanctions, in the event of serious and repeated infringements, covering the duration of a breach even later
The draft order rightly provides for the elimination of the minimum period of one month granted to the respondent in respect of the formal notice, in Article L. 36-11 of the CPCE. The ARCEP regrets, however, that the project does not draw all the consequences of the new Community provisions, by not transposing the possibility for the Authority to impose periodic penalty payments on sanctioned
. (iii) Quality of service:
Article 22 of the Directive " Universal service " Has been supplemented by a paragraph 3, which provides that NRAs may lay down the minimum requirements imposed on operators in the field of quality of service in order to combat the degradation of service and the slowing down of traffic. Before taking these measures, NRAs must provide the European Commission with all the relevant information enabling it, where appropriate, to make comments or recommendations on the draft decision, which the NRA will have to hold the most Big account. BERT is also informed of the action envisaged by the NRA.
These provisions are transposed into a new Article L. 36-15 of the CPCE. This will allow the PFRA to set the minimum requirements to maintain quality of service. However, the project states that the response of the CBWRA is " In the conditions laid down in Article L. 36-6 ". Article L. 36-6 of the CPCE lays down the cases in which the ARCEP may exercise regulatory power, which is, in application of the constitutional case-law, limited by its field Its content (see, inter alia, Decision No. 2004-497 DC of 1 July 2004 on the Law on Electronic Communications and Audiovisual Communication Services, paragraph 6). The publication in the Official Journal of the French Republic of the decisions taken by the ARCEP is subject to approval by the Minister responsible for electronic
. An act of control of the public authority (...) and of which the sole object and the only effect is to perfect the effects of another legal act by making it compulsory or by extending the scope " (6), the approval of a legal act by an administrative authority may sometimes allow the exercise of a discretionary power, based on grounds of opportunity, and sometimes place the administrative authority in a situation of bound competence. In the latter case, the related jurisdiction may be either the express result of a text (7) or implied.
In the case of a species, the approval by the Minister of a regulatory decision of the ARCEP-which is an independent authority In the sense and in the application of the Community framework-should be interpreted as conferring on the Minister a related jurisdiction in order to render the decision before it enforceable. Moreover, it is difficult to envisage that the Minister should be able to exercise the power of approval, at the end of a process of consultation with the Community institutions-the European Commission and ORECE-to strengthen the Coherence of the application of the rules in all Member States.
Subject to this interpretation, the Authority notes that the reference: ' In the conditions laid down in Article L. 36-6 ", contained in the draft new Article L. 36-15 of the CPCE, does not add anything to the state of the existing law. The Authority therefore takes note of the new regulatory authority entrusted to it in the field of quality of service and wishes that, for the full transposition of Article 22 of the Directive ' "Universal service", itself, itself, in addition, endowed-where appropriate, by regulation-of the power to impose individual service quality obligations on each operator, irrespective of the regulatory
. Reinforcement of symmetric regulation:
On a market that has become competitive, the intention of " Legislator " Community is, progressively, to treat all operators without distinction and thus to increase the role of symmetric regulation, that is to say the regulation applicable in the same way to all operators, to the To the detriment of asymmetric regulation, which imposes rules on the only trader recognised as powerful on the market. To this end, the new framework of the Directives strengthens the powers of national regulators in the field of symmetric regulation, by supplementing Article 12 of the Directive. Framework " By new paragraphs, numbered 3 to 5.
Under these new provisions, it is necessary to be able to impose on operators the sharing of infrastructures, both active and passive, and the coordination of civil engineering
. In this respect, the draft new Article L. 34-8-4, inserted in the CPCE, meets the objectives set by Community law.
v) Functional separation:
Although the new one Telecom packet " Overall, to strengthen symmetrical regulation, regulators are given the new power to impose the functional separation of a powerful operator on the market, in the event that other asymmetric remedies would not have allowed To achieve the expected results.
Pursuant to Article 13a of the Directive " Access ", the NRA may impose on a vertically integrated undertaking to entrust its activities for the wholesale supply of the products concerned to a functionally independent economic entity. This regulatory tool can only be used as a last resort, when the other remedies have failed to ensure effective competition and deficiencies persist in the market. The Community provisions specify the procedure to be followed, in particular the information of the European Commission and the possible lifting of the remedies already imposed on the undertaking undergoing functional separation. Article 13b of the Directive " Access " Also provides for the case of a company which voluntarily decides to carry out a functional separation of its wholesale and retail activities. In this case, the company must inform the NRA of its project, which then reassesses the obligations imposed on that company.
In accordance with the provisions that have just been recalled, the draft order creates a new article L. 38-2 of the CPCE, relating to the remedy of functional separation, whereas the new Article L. 38-2-1 provides for clarification of the conditions of information of the Authority by a company which would decide on the functional separation of its activities. On this point, too, and without prejudice to the use it will make of this new provision, the Authority issues a favourable opinion.
III. -Conclusion
With the exception of the provisions of Section I of Article L. 33-1 of the CPCE, of new Article L. 121-83-1 of the Code of consumption and II of the non-codified section 56 of the draft order, and subject to the above observations, the ARCEP issues a favourable opinion on the proposed order.
This notice will be Notified to the Minister of Economy, Finance and Industry and to the Minister placed with the Minister of Economy, Finance and Industry responsible for industry, energy and the digital economy. It will be published in the Official Journal of the French Republic.
Done at Paris, May 10, 2011.
The President,
J.-L. Silicani
