JORF n ° August 28, 2011 text no. 56 opinion No. 2011 0199 - 0524 of May 10, 2011 on a draft Ordinance on electronic communications NOR: ARTJ1123642V ELI: not available the electronic communications and postal regulation authority, seen directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to the electronic communications networks to resources as well as associated 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 networks and electronic communications services (directive 'authorisation'), 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 electronic communications services and networks (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 with regard to networks and electronic communications services (directive 'universal service'), as amended by directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (2);
Having regard to the code of consumption;
Having regard to the code of postal and electronic communications (hereinafter CPCE);
Having regard to Act No. 86 - 1067 of 30 September 1986 on freedom of communication, and in particular article 22 thereof;
Having regard to Act No. 2011-302, March 22, 2011, containing various provisions for adaptation of the legislation to the law of the European Union on health, work and electronic communications, and in particular article 17 thereof;
Having regard to the rules of procedure of the authority;
Having regard to the letter dated April 26, 2011, whereby the Minister responsible for industry, energy and the digital economy has seized the authority for an opinion of a draft Ordinance on electronic communications;
After having deliberated on May 10, 2011, i. ― 1 referral context. The revision of the 'telecom package' in 2009 the "telecoms package" 2002 is comprised of the set of Community texts relating to the electronic communications sector, i.e.: ― directive 2002/19/EC of 7 March 2002 on access to electronic communications networks and associated facilities as well as interconnection, known as directive 'access '.
― directive 2002/20/EC of 7 March 2002 on the authorisation of networks and services of electronic communications, Directive "authorization."
― directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications services and networks, directive framework;.
― directive 2002/22/EC of 7 March 2002 on universal service and users rights, networks and electronic communications services known as directive 'universal service '.
― directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, known as the directive on privacy and electronic communications'.
November 25, 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 (BEREC), new instance of dialogue and exchanges between different national regulators and the Commission European, as well as the Agency, which provides support to the work conducted by BEREC. This regulation, implementing direct, is entered into force on January 7, 2010, or 20 days after the date of its publication: it requires no transposition measures.
On the other hand, directive 2009/140/EC of 25 November 2009, Directive "better regulate", changed directives 'framework', 'access' and 'authorisation', while the directive 2009/136/EC on the same day, so-called "rights of citizens", changed "universal service" and "Privacy" directives. Published in the Official Journal of the European Union on December 18, 2009, these directives entered into force the following day. They set the deadline of their transposition to May 25, 2011. In accordance with the jurisprudence of the Court of justice of the European Union, the entry into force of the guidelines has the effect, before their transposition, to prohibit Member States to adopt measures which would be contrary to the objectives pursued by the community "legislator".
In addition to the strengthening of the cooperation at Community level, the objectives of the directives are, primarily, the following: ― the strengthening of independence and the powers of the 'national regulatory authorities' (NRA);
― strengthening the protection and guarantees for all end-users;
― the best spectrum management.
These are precisely the directives of November 25, 2009, that the draft order submitted for opinion to the authority is intended, inter alia, to transpose, in relation to the provisions of a legislative nature.
2. the national process of transposition from the month of May 2010, the Ministry responsible for electronic communications conducted a public consultation on a first draft of amendments to the legislative provisions of the CPCE, to ensure the transposition of the directives. Taking part in this consultation, ARCEP, may 25, 2010, issued several comments on the draft then presented: ― it has insisted on the need, in the Act, to provide concrete measures for users with disabilities;
― It took note of the intention of the Government to transpose the provisions relating to the protection of consumers, partly in the CPCE, and part in the code of consumption;
― It expressed reservations about the asymmetrical power of NEPA frequencies (ANFR) concerning the agreement for the implementation of a radio station.
The Government has decided to proceed with the "legislative" transposition by order. Thus, September 15, 2010, the Council of Ministers considered the Bill 'containing various provisions of adaptation of legislation to the right of the European Union on health, work and electronic communications', which article 11, which became article 17 of Act authorizes the Government, inter alia, to adopt, by Ordinance, the legislative provisions necessary for the transposition of the directives on November 25, 2009.
Act No. 2011-302, March 22, 2011, containing various provisions of adaptation of legislation to European Union health, work and electronic communications law was published in the Official Journal of the French Republic from March 23, 2011. I of article 17 thereof, authorizes the Government to adopt, by Ordinance: "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 facilities as well as their interconnection, and 2002/20/EC relating to the authorisation of networks and electronic communications services;
«2 ° provisions of a legislative nature necessary to transpose the directive 2009/136/EC of the Parliament and of the Council of 25 November 2009 amending directive 2002/22/EC on universal service and the rights of users of electronic communications services and networks, directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004. on cooperation between national authorities responsible for enforcement of consumer protection legislation;
«3 ° all provisions amending the legislative part of the code of posts and communications electronics, other than those referred to in 1 ° and 2 °, in order to increase the effectiveness of the management of radio frequencies, including by encouraging the development of the secondary market for frequencies and strengthening control of interference and fight against harmful interference;
"4 ° all provisions of a legislative nature, other than those mentioned in the 1 ° and 2 °, likely to: 7renforcer the fight against the facts — likely to undermine privacy and the secrecy of correspondence in the field of electronic communications, in adapting and supplementing the offences and the penalties provided for in article 226-3 of the penal code and the provisions that are sought and found these offences;
— submit the establishment and operation of networks open to the public and the provision to the public of services of electronic communications to compliance with the rules on the requirements necessary to respond to threats and prevent and repair the serious harm to the security of information systems of the public authorities and operators referred to in articles l. 1332-1 and L. 1332-2 of the code of defence by adapting and supplementing article L. 33 - 1 of the code of posts and electronic communications and amending any other provision for the purpose of ensuring the consistency;
«5 ° all provisions amending the legislative post and electronic communications code part, in order to remedy any errors and clarify the provisions. ''
Pursuant to article 17 of Act No. 2011-302, March 22, 2011 order must take place within a period of six months from the enactment of the enabling legislation, and a bill of ratification must be tabled in Parliament no later than the last day of the third month following the issuance of the order.
Pursuant to article L. 36 - 5 of the CPCE, under which: "electronic communications and postal regulation authority is consulted on draft legislation (...). relating to the sector of electronic communications", the draft order is submitted for opinion to ARCEP.
This project consists of five titles: ― title I is devoted to the transposition of Community directives and amend, inter alia, the CPCE and the code of consumption;
— Title II aims to improve the management of frequencies;
— Title III reinforces the fight against harm to the privacy and security of information systems in the field of electronic communications;
— Title IV clarifies certain provisions of the CPCE; and ― title V contains transitional and final provisions.
At this stage, the authority has no communication of the project for implementation of a regulatory nature. It has, therefore, only a fragmented vision of the project for implementation by the Government, of all the 'telecom package '. Comments on the proposed order, the following are therefore issued only items sent to the authority given.
II. - Observations of the authority comments below relate, after a first paragraph of definition, on the protection of consumers, the management of the spectrum and the powers of the regulator.
1. the definition of the national regulatory authorities (NRAs) like the previous transpositions, the transposition of the new 'telecom package' led to clarify the respective responsibilities, inter alia, of the Government and the sectoral regulator. As soon as the directives use different words to designate the competent authorities at the national level, their transposition requires a prior work of definition of the terms.
Community directives means, as appropriate: ― the States members;
― national regulatory authorities; and — according to a variable terminology, the competent authorities.
The concepts of Member States and competent authorities pose not particular in the context of the transposition to the extent fix the principle of institutional autonomy, each State is free to designate the authority or the Agency wishes to ensure the tasks assigned by the directives.
i) institutional independence with respect to the objectives of the directives: the concept of 'national regulatory authority' or 'national regulatory authority' (ARN) seems, a priori, meet the same logic of institutional autonomy, article 2 of the directive 'framework' defining this authority broadly as being: "the body or bodies charged by a Member State of a any of the regulatory tasks assigned in this directive and the specific directives. , said, at this point, that, with regard to negotiated guidelines in English, 'regulatory tasks' ("regulatory tasks" in English) should also be read as "regulatory tasks.
The Court of justice of the European Union adopts the same preliminary approach in holding that: "neither the framework directive or directive 2002/22 means the organs of the Member States to which they must entrust the regulatory tasks assigned to the authority" (ECJ, October 6, 2010, Base NV and others, C-389/08, paragraph 23).
However, this statement widely has the character of a petition of principle, whenever the Court, bound by the terms of the directives, went on to say that: 'If, in these circumstances, the Member States have on the subject of institutional autonomy in the organisation and structuring of their regulatory authorities (...), this autonomy may however be exercised in full respect of the objectives and obligations laid down by this directive' (ECJ Prev., paragraph 26). The Court adds that: "according to article 3 of the framework directive, Member States must, inter alia, to ensure that each of the tasks assigned to national regulatory authorities is carried out by a competent body, the independence of these authorities (...) (and ensure that those authorities exercise their powers impartially and transparently"paragraph 29).
The institutional autonomy of the Member States is therefore constrained by the characteristics that the directives require NRAs and which are available to the article 3 of the directive framework. This article provides for two types of rules relating to the independence of the NRAs: ― a rule contingent of independence of the NRAs for the set of tasks that they are assigned; This rule is applicable when the Member States retain the ownership or control of operators of electronic communications;
― an absolute rule of independence, which must be respected even if the Member States have no interest in the historic operator, but that applies only to some of the missions of RNA: in this case, the ex-ante market regulation and the settlement of disputes.
If the first rule, laid down in point 2 of article 3, exists since 2002, the second rule, laid down in item 3 bis of the same article, more demanding in terms of independence, is the result of the revision of 2009.
Therefore, the expression of 'national regulatory authority' can be assimilated to that of 'Member State' or 'competent authority '. It is purposely directives to use either of those words, as confirmed by their writing. For example, point 4 of article 12 of the directive 'framework' provides that: 'The Member States shall ensure that the competent national authorities can' work "in collaboration with the national regulatory authorities. Similarly, point 2 of article 13 ter of the same directive provides that operators can be subjected to a security check, which can be achieved by 'competent national authority', and whose results are reported to the national regulatory authority.
(ii) the requirement contingent of independence for all of the tasks assigned to NRAs: 2 of article 3 of the framework directive specifies the conditions of independence that must be satisfied: ― independence between NRAs and operators of electronic communications;
― effective structural separation between the functions of ownership or control of operators and function of regulation or regulation ("regulatory function" in English).
Thus, when the State owns or controls an electronic communications operator, the NRA must, for all of the functions which it undertakes, be structurally independent property and control functions companies. This obligation contingent ― as linked to national circumstances — must be respected in France, as long as the State holds shares of the incumbent operator of electronic communications.
The independence to meet Community requirements must be assessed in the light of the case law of the Court of justice and the European Commission's guidelines.
Thus, after having determined that: "the maintenance of effective competition requires that the formalization of the technical specifications, monitoring their application and approval are conducted by an independent entity of the public or private companies offering goods or competing services" (ECJ, 23 October 1993, Decoster, C-69/91, paragraph 19), the Court of justice has clarified and strengthened the obligation of independence: "conducting public body. the term "independence" normally means status granting body concerned the possibility of acting freely, away from any statement and any pressure"(ECJ, March 9, 2010, Commission c/Germany, C-518/07, paragraph 18). The Court holds, in particular, that: "during the performance of their duties, the supervisory authorities must act objectively and impartially. (For this purpose, they must be free from any outside influence, including that, directly or indirectly, [Federal] or the Länder, and not only the influence of controlled organizations"paragraph 25). Specifically, in the sector of electronic communications, the Court finds that the institutional autonomy of the States concerning the NRAs is limited by the terms of the Community framework, noting that: "the framework directive gives to the NRA, and not to the national legislature, the assessment of the need for regulation of the market", and taking care to highlight those provisions: 'directed specifically to the NRAs' (ECJ (, December 3, 2009, Commission v / Germany, C-424-07, paragraphs 74 and 75).
Drawing the consequences of Community case-law, the European Commission considered in a postal matter, that: "the same authority of the State which provides control of the post office is (...)". clearly to ensure its profitability and its financial health. The fact that these skills are localized simultaneously in several directions of administration subject to the same Minister is not sufficient to demonstrate the independence of control' (decision of the Commission of 23 October 2001 on the absence of comprehensive and independent of tariff and technical conditions applied by La Poste to companies of routing for access to its reserved services) (, C (2001) 3186, OJ L 120/19 of 7 May 2002, paragraph 82). And the Commission concluded: "In the light of the existing regulatory framework, the Commission finds that the separation between economic and financial guardianship and such regulatory functions as described by the French authorities is not likely to offer sufficient guarantees of neutrality and independence in monitoring relations between La Poste and routing firms" (paragraph 83).
Therefore, and as soon as the control of the incumbent's electronic communications is provided by the budget Directorate and the Directorate General of the Treasury, to which the Agency of the interests of the State (EPA) — service to national jurisdiction — is attached, compliance with the provisions of paragraph 2 of article 3 of the directive 'framework' forbidden that one any tasks the RNA can be entrusted in France, to a central management of the ministries of economy and finance.
III) the absolute requirement of independence with regard to certain tasks of NRAs: directive 2009/140/EC has inserted in article 3 of the framework directive, a point 3A which States, inter alia, that: "the national regulatory authorities responsible for regulating the market ex ante or the settlement of disputes between companies (...). Act in full independence and shall neither seek nor only accept instruction of any other body in relation to the accomplishment tasks assigned to them by virtue of national law transposing Community law».
Therefore, the new directive significantly strengthens independence RNA as regards the fulfilment of their missions of asymmetric regulation of the market, laid down in articles 7 et seq. of directive 'framework', and their mission of settlement of disputes between companies. This independence must be respected in all circumstances and is subject to no condition.
In practice, and taking into account what is recalled above concerning the French situation, point 3 article 3 bis adds nothing to the French obligations to respect the principle of independence of the NRAs. Fact remains that the amendment of the directives will lead the European Commission to be even more vigilant in assessing compliance with the principle of independence of the NRAs by national provisions.
It follows therefore from what has been said above that the "framework directive" opposes what is entrusted to a central management of ministries of economy or finance one any of the tasks specifically assigned to NRAs by the directives. In Community law, every mention of the 'national regulatory authorities' (or 'national regulatory authorities') in the guidelines necessarily return, to France, to the jurisdiction of the ARCEP or, failing that, to the jurisdiction of an administrative authority respecting the criteria of independence required by Community law.
In any case, it will be possible in the future, that the French authorities shall notify the European Commission, as national regulatory authorities, the departmental directorates which are under the authority of the Ministers of the economy or the budget.
At the end of these details, the authority shall examine now, key aspects of the transposition according to a thematic approach.
2. the protection of consumers 'High level of consumer protection' is, pursuant to article L. 32 - 1 of the CPCE, one of the principles of the regulation of the sector of electronic communications which ARCEP has charge.
The Community provisions relating to users, contained in chapter IV of the directive 'universal service', entitled "Interests and rights of end-users", mainly the information destined for end-users, guarantees of disabled users and the quality of service.
i) information to the final users: end users, within the meaning of the Community guidelines, include two distinct categories of users: consumers and other users. Lack of statutory definition in french law, the Court of cassation held recently, in the light of Community law and the case law of the Court of justice of the European Union, that the term consumer refers only to natural persons (Cass., 1st Civ., April 2, 2009, SLG channel this c/Dimension Data France, no. 08 - 11.231). In principle, and unless express otherwise, the qualification of consumers is reserved to non-professional persons.
Directive 'universal service' puts the responsibility of the operators of electronic communications a requirement to provide two types of information to end-users: ― strictly contractual information: previously limited to consumers only, the obligation to issue such information now also benefits other users requesting"(article 20 of the directive 'universal service') and its compliance shall be checked by the 'Member States ';
— information that can be classified as "extracontractuelles", which must be available at any time, even outside the conclusion of a contract, in order to allow the set of end-users to exercise a choice lit; the control of this obligation is the responsibility of the 'national regulatory authorities' (article 21 of the directive 'universal service').
Since the revision of 2009, these two articles have the same scope: they potentially benefit all of end-users. However, while the implementation of article 20 is the responsibility of the 'Member States', article 21 is the responsibility of 'national regulatory authorities '.
In national law, during the previous transposition, the party was taken to apportion these guarantees, for part in the CPCE, for part in the consumer code, as they apply to all users or only to consumers and other users non-professionals. Thus, the contractual information are listed in article L. 121 - 83 of the code of consumption, which the II of section d. 98 - 12 of the CPCE returns. However, contractual information are, mainly, listed in II of section d. 98 - 12 of the CPCE, without reference of the code of consumption to the CPCE.
This balance, fragile and difficult to read, no longer reflects the State of Community law, now extended to all users. By transferring all the provisions relating to consumers and non-professional users in the code of consumption, the project, not only, does not remedy existing shortcomings but, in addition, creates new. It establishes, in fact, a distinction between consumers and users non-professionals 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 guidelines.
According to the draft, article L. 33 n - 1 of the CPCE would be supplemented by details of the contractual information to only "professional users. This limitation of the scope of the legislative part would be declined in part regulatory, since the last paragraph I of article L. 33 - 1 provides information to professional users will be specified by Decree. In return, the code of the consumption, which would retain the article L. 121 - 83 in the matter of the contractual information to consumers, would be supplemented by a new article L. 121-83-1 relating to the non-contractual information to consumers.
ARCEP without not the regulatory part of the project for implementation, it can only assume that the Government will draw, in part regulatory of the CPCE, the consequences of proposed in part legislative choices.
These choices are not complying with the directive 'universal service' and lacking consistency.
The transposition of a provision in any particular code is not trivial for the authority, to the extent that, except where expressly, it cannot exercise its power of sanction, she holds of article L. 36 - 11 of the CPCE, in the case of ignorance of the only provisions of the CPCE and those taken for its implementation, in accordance with the letter of this article and its interpretation by the Constitutional Council (decision No. 96-378 DC of 23 July 1996 on the Act Regulation of telecommunications, paragraph 16). One transposition in another code that the CPCE results therefore, ipso facto, the exclusion of any liability of ARCEP in implementing the requirements of the directives.
If, from a legal point of view, the regulatory authority and the legislature are free to transpose wherever they wish the provisions of article 20 of the directive 'universal service' contractual information, whose responsibility is up to Member States, it is not true of the provisions of article 21 of the directive, relating to the contractual information. As the 'national regulatory authorities' are expressly mentioned in article 21, only the ARCEP ― or any other authority fulfilling the criteria of independence laid down by the European Commission and the Court of justice of the Union European ― can be mandated to monitor compliance with their obligations by operators, contractual information, whether they are destined to consumers or other users. Moreover, it follows from the contacts made by ARCEP with its European counterparts that all Member States have provided the transposition of article 21 of the directive 'universal service' — and for most of them, also the transposition of article 20 — in a sectoral law on electronic communications. Therefore, the proposed new article L. 121-83-1 of the consumer code infringes directive 'universal service '.
Beyond these essential legal considerations, the administrative opportunity led to wonder about the coherence of public action for end-users. Indeed, the action of the authority in this field is actively sought by the Parliament. Thus, the legislature has entrusted to ARCEP, by Act No. 2010-123, February 9, 2010 on the public company La Poste and postal activities, the mission to process claims of the users of the services postal ― mission which the postal directive was not commanding the devolution to ARCEP. It has also, by Act No. 2008-3 of January 3, 2008, for the development of competition in the service of consumers, asked the authority to report evaluation of legislative provisions which, however, were included in the code of consumption. In this context, it would be paradoxical that the regulatory power méconnût directive 'universal service' at the expense of end-users, excluding the CPCE guarantees for consumer information. This paradox is, moreover, accentuated by the fact that the proposed order itself, on another point, supports also the action of protecting consumers by 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, services and numbers that paragraph 2 of article 28 of the directive 'universal service '. , mentioning the 'competent authorities' within the meaning wide, commanded not strictly.
Taking into account future challenges for neutrality of networks, the authority cannot fully exercise its regulatory mission, if the provisions relating to end-users are distributed, and inconsistently between several codes. In particular, implementation of a new article L. 36 - 15 of the CPCE, which the draft order provides for the establishment, the authority may establish minimum quality of service requirements. These requirements will have consequences on the content of the information operators are required to deliver to users, notably on the basis of article 21 of the directive framework. As a result, the draft order, in its version submitted to the authority, would lead to what it is competent, to ensure part of the execution of one of its regulatory decisions, only with respect to professional users, excluding consumers and users non-professional. In addition to its annoyance with Community law, this choice of transposition therefore hinders the action of the authority, while exposing end users to unnecessary complexity.
Finally, the drafting opportunity must take into account the intelligibility and accessibility of the Act, which is also a condition of its constitutionality. It is clear, in that regard, that the transposition of the specific provisions relating to consumers of services of electronic communications in the consumer code is justified by the contingencies of the codification. The consumer code belongs to the family of the great codes which, such as the 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 'sectoral' codes, whose role is precisely to lay down provisions which, generalizable, are specific to an activity or a given market. If, today, the provisions concerning the consumer's electronic communications services found in a chapter of the code of consumption which contains, pell-mell, sectoral provisions relating to preparations for infants, bakeries and removal transport, this circumstance is a hazard of consolidation. The first sectoral layer of chapter I of title II of book I of the legislative part of the code of consumption is relative to the infant, and this choice of consolidation could be explained by the absence of sectoral codes in this area.
In the electronic communications sector, return to the spirit of a codification clear and consistent means that in the code of consumption the only provisions of ordinary law, which, moreover, I of section d. 98 - 12 of the CPCE returns, that is articles L. 111 - 1 and L. 121 - 18 of the code of consumption. On the other hand, all the sectoral provisions on electronic communications should be, mainly, in the CPCE. Therefore, the provisions of section 11, relating to the "contracts of electronic communications services', chapter Ier mentioned above of the code of consumption, should be moved to the CPCE to load for the legislature ultimately predict the competence of officials of the administration for consumption, to monitor the compliance with the obligations arising from articles newly transferred to the CPCE.
ARCEP therefore wish the transfer, in the CPCE, sectoral provisions currently contained in the code of consumption. At least, it is necessary that the new issues the transposition provisions are codified, at the same time, in the consumption code and the CPCE.
At any rate, at this stage, ARCEP emits a negative opinion on the draft of article L. 121-83-1 of the code of consumption and demand that the scope of article L. 33 n - 1 of the CPCE be extended to all users.
(ii) users with disabilities: the revision of the 'telecom package' has strengthened the guarantees for disabled users. Point 1 of article 7 of the directive 'universal service', so provides, that: 'the Member States shall take specific measures to ensure that disabled end-users (...) ". "access to services (...) to a level that is equivalent to that enjoyed by other end-users. The article 23 bis is still more daring because its scope is extended beyond the universal service to all operators. It provides, in effect, that: ". Member States shall ensure that the competent national authorities are able to fix, where appropriate, the obligations to be fulfilled by undertakings providing publicly available electronic communications services so that 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 asked article L. 33 - 1, the principle of access for users with disabilities to electronic communications services and emergency services equivalent to that enjoyed by the majority of users, without more information on the whole of the project.
In its response to the public consultation, the authority indicated to the Government that it would be appropriate to provide for concrete measures to achieve the targets set in the directive. In light of the infringement of the freedom to undertake what they entail, these measures may be prescribed only by law. The authority is aware of the difficulty to lay down rules in this area and the need for a minimum of consultation between the actors of the sector.
However, the authority wishes to make here which proposals may already be inserted in order, in accordance with the provisions of the directives.
The CPCE could provide that the products and offers should be adapted to the needs of disabled end-users. Firstly, 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 a period of seven days from their delivery, where their ergonomics proves inadequate to the needs. On the other hand, operators will have to adapt their offers, for example, by offering services 'all data' destined for persons who cannot use voice minutes. Finally, operators should provide their commercial officers training enabling them to respond better to the needs of disabled users.
These provisions can be written simply in order, and supplemented by an obligation contractual and non-contractual information and invoices on materials adapted to the needs of persons with disabilities. In this regard, it is essential that the internet sites of the operators be made accessible to the visually impaired, through the use of a beach in braille or vocalization software.
The Authority proposes to insert in the legislative part of the CPCE, two new articles and written after the new article L. 33 - 10 proposed by the draft order: «art.» L. 33-11. -The products and offers access to electronic communications services are adapted to the needs of disabled end-users.
"Therefor, distributors of terminals put at the disposal of these users a range of devices suited 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 the event of inadequate ergonomics of a terminal to their needs, concerned users, within a period of seven days after delivery, or delivery of this terminal, its Exchange without penalties.
"Electronic communications operators provide all of their commercial agents properly trained to meet the requirements mentioned in the first subparagraph.
«Art.» L. 33-12. -The information referred to in article L. 111 - 2 of the code of consumption, those relating to products and offers within the meaning of article L. 33 - 10 as well as those voluntarily issued by an operator to all of its customers are the subject of a broadcast on media suitable for disabled users. They receive their invoices in a format adapted to their needs. "The latter article could not come into force on June 30, 2012.
III) conservation of the issue: one of the novelties of the "telecoms package" will be directly perceptible by end-users: the period in which subscribers will be able to transfer their number to one operator to another is reduced to one day, in application of article 30 of the directive 'universal service '.
The portage or the conservation of the number allows a subscriber to landline or mobile continue to receive its calls to the same number when they change operator. To this end, and thanks to the "single window" system (3), the Subscriber directly contacts the new operator of choice to enable it to carry out all of the steps related to the request for termination of the old contract, conservation of number and subscription of a new contract. In this way, the Subscriber mandates the new operator to perform the necessary formalities with the former operator. To run, both operators must make an exchange of information between them, before carrying out the technical implementation of the porting of number. In practice, the information exchange phase may last a few days, while the interruption of service the day of the portage was limited by ARCEP, to four hours for the "portage" mobile as well as fixed as "porting" of January 1, 2012.
By providing, to the I of article L. 44 of the post and electronic communications code, that: 'the portage time is one business day, subject to the availability of access (...)', the project complies with the Community provisions.
ARCEP, however, the importance of the investments necessary for operators to comply with the new Community rules. Legal certainty in this area is therefore essential. The interpretation of the Community provisions, not devoid of ambiguity in this case, must, therefore, be clearly explained by the national law.
Point 4 of article 30 of the directive 'universal service', successively, apply the same time limit of one working day to two different things: the timeout number, under the first paragraph of point 4, and the loss of service time, in application of the second subparagraph. Or the period of service interruption, final phase preceding the actual activation of the number, is included in the total activation period necessarily longer than the loss of service, because it implies, in particular, an exchange between operators.
Therefore, without disregarding the letter, give a useful and reasonable effect to Community provisions and, to that end, to determine the starting point of the time limit of one working day in which the Subscriber, who has entered into an agreement of portage, is entitled to obtain the activation of its number, in this case, the period referred to in the first subparagraph of point 4 of article 30. In this regard, both interpretations are, a priori, possible: ― either porting agreement is materialized by the conclusion of the contract between the Subscriber and the new operator;
― or this agreement does exist from the moment where the former operator also gave its agreement on the procedure of portage.
ARCEP favours the second interpretation. In a proceeding to three actors — subscriber, the former operator and the new operator —, it is consistent with the right to consider that the agreement of portage is concluded only when the previous operator has also agreed, and not from the moment where the Subscriber has signed a "bipartisan" contract with its new operator. Moreover, the single window system, allowing contact only the new operator is not widespread in all Member States where subscribers are sometimes forced to contact both two operators: the old and the new. In addition, ARCEP has received comments from all operators and drew the conclusion that the choice of the second interpretation would be better proportioned and suitable from a technical and financial point of view. This choice will allow a faster implementation, by operators, of Community obligations, which is a benefit for consumers and promotes the fluidity of the market. ARCEP also noted that the application of the first interpretation would bring, to consumers, no additional benefit compared to the application of the second.
ARCEP therefore drew the attention of the Government on the need to clarify, if necessary, by means of regulation, the delay for a day referred to in article 44 of the modified CPCE will run only with effect from the moment the previous operator has agreed to the new operator, by the transmission of the information necessary to carry out the technical implementation of the conservation of the number.
In addition, taking into account the difficulties of interpretation of directives, taken time for their transposition into national law and the time required for the technical implementation of new processes, operators will not be able to meet their obligations before the end of the year 2011 in metropolis, and before mid-2012 in the overseas departments. As has recently held it the Council of State: "the fixing of a time limit for the achievement of the necessary facilities is (...)". by itself not incompatible with the provisions of the directive which, if they imposed on France to adopt the legislation and regulatory requirements before December 2, 2006, allowed to be left a reasonable time for the realization of the necessary facilities (...) "(4) in the case of an obligation with an automatic financial penalty, moreover, independent of the existence of a prejudice, ARCEP recommends that the new provision in the order be accompanied by transitional measures to avoid a double uncertainty before the civil judge: operators fear the conviction and that consumers feel, wrongly, holders of a debt.
Finally, to give full effect to the amendment of article 44 of the CPCE, which specifies that "the effective porting of the number causes concomitantly the termination of the contract between [former] operator to the Subscriber ', it is essential to change, also, article L. 121-84-2 of the code of consumption, which stipulates that the period of notice for the termination of his contract of services of electronic communications by a Subscriber may not exceed ten days. In fact, a contradiction could arise between the maximum ten days applicable to all terminations of contracts of services of electronic communications under the code of consumption, and the maximum period of one day, applicable only to those of the terminations that are accompanied by a request for preservation of the number. This inconsistency argues, stronger, transfer or, at least, the duplication, in the CPCE, of all sectoral provisions relating to consumers.
3. the management of the spectrum one of the objectives of the revision of the 'telecom package' was a development of spectrum management procedures, in particular in order to strengthen the implementation of the principles of technological neutrality and service.
i) the principles of technological neutrality and service: points 3 and 4 of article 9 of the directive 'framework' pose, respectively, the principles of technological neutrality and service. Thus, without exception, '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 hand, "can be used in the frequency bands declared available for electronic communications services. Community provisions are thus an obligation of means the responsibility of the Member States. It cannot, in principle, be deviated from the principles of neutrality that for reasons, including general interest, listed by the directive.
Article 9 bis of the directive 'framework' provides transitional measures for implementing progressive compliance of conditions and user permissions in the frequency domain. The interpretation of this article requires special attention to correct and legible into national legislation transposition.
According to paragraph 1 of this article, Member States may allow holders of individual authorisations for the use of frequencies, for a period of five years from May 25, 2011, which is the deadline for transposition, to request a review of their permissions, for the abolition of existing restrictions on the principles of neutrality. This deletion, expanding the range of technologies and possible services in a given frequency band, may require or justify a substantial modification of the current permissions, including the increase of the fees due, the decrease in the amount of allocated spectrum or obligations extended in coverage of the territory. Therefore, the directive provides that the applicants, in the light of the consequences of the application of the principles of neutrality in their particular situation, can withdraw their application, in which case the law originally assigned remains unchanged. In any case, the point forecast 1 is only a faculty that Member States are free to open or not to the allottees of frequencies.
This point 1 seems tainted by a contradiction, because its scope is, by virtue of the first subparagraph, limited to the permissions, granted before May 25, 2011, will still remain in force on 25 may 2016. Conversely, the last paragraph States that, in the case of the withdrawal of the application, the initial right remains unchanged until May 25, 2016, or expiry, if it is prior to the date of authorization. It must then be inferred that the point 1 is applicable to all permissions in force on May 25, 2016, as well as to the date on which the request for review estintroduite.
Point 2 of the same article stipulates that after May 25, 2016: «(...)» ' Member States shall take all appropriate measures to ensure that [the principles of technological neutrality and service] applies [nt] to other general authorisations or individual rights of authorization and spectrum allocation for the purposes of the electronic communications services existing on the date of May 25, 2011. This provision therefore provides consistency with the principles of neutrality of all administrative authorisations for the use of frequencies.
Finally, items 3 and 4 of article 9 of directive 'framework' is an apparent contradiction. Whereas point 3 aims to "promote fair competition", point 4 subtracts the duty of an open and transparent procedure, imposed by article 5 of the directive 'authorization', the measures taken on the basis of article 9 bis of the directive framework. In fact, these provisions must be read as implying that, when the application of the principles of neutrality in the current permissions led to the restitution of a portion of the allocated spectrum, competition rules are applicable on this single part restored, excluding the portion on which rights are maintained acquired to the original contractor, without selection procedure.
The draft order transposes all these provisions in article 42 of the CPCE, for what concerns the perennial provisions and, in a non-codified article, with regard to the transitional provisions.
Authority takes note of the reference, in article L. 42 of the CPCE, grounds to derogate from the principles of neutrality. The authority wishes, however, that the principles of technological neutrality and service are mentioned, positively, in CPCE ― complementing II de L. 32 - 1 of the CPCE by a 17 ° ― so that these principles are not only deducted by, conversely, restrictions that are made to them. In addition, it is also desirable that article L. 41, on the power of the Prime Minister to set the national allocation of frequency bands, mention the principles of neutrality.
Conversely, the Authority considers that article 56 non-codified by the proposed order imposes obligations that are not strictly the directives and that may be contrary to their purposes.
ARCEP is to assign frequencies, two types of decisions: ― General decisions, which lay down the main technical rules in each frequency band. taken on the basis of article 42 of the CPCE, these regulatory decisions are subject to approval by the Minister, in accordance with article L. 36 - 6 of the CPCE. When a band of frequencies does not give rise to exclusive rights of use for the benefit of some operators or users, these decisions are "General authorities" within the meaning of Community law and respect allows the use of the relevant bands. This is the case, for example, with regard to amateur radio;
― the authorisations for the use of the frequencies that specify the specific requirements for the use of spectrum for exclusive use by an operator; These are individual decisions issued by the authority, or over water, in application of article L. 42 - 1 of the CPCE, either, in the case of terrestrial scarcity, at the end of a selection in accordance with article L procedure. 42-2. ; This is the case, for example, frequencies for mobile telephony.
When they are needed, the authorisations for the use of frequencies, that confer rights holder, are intended to clarify the relevant band decisions of general scope. Thus, the regulation of the use of a frequency band is, as the case may be, governed by a system one or two levels.
By providing that ARCEP "deletes", after May 25, 2016, restrictions on the principles of neutrality on all former authorisations for the use of frequencies still in force on that date, the II of article 56 of the draft order puts ARCEP in situation of competence related to take a particular measure, without any possible appreciation, while the wording adopted in the directive is more flexible. As soon as the application of the principles of neutrality may change, substantially, course permissions, it can lead to consequences unfavourable on the good management of the spectrum or not desired by the allottees.
Indeed, the automatic application of the principles of neutrality would encounter two pitfalls: ― it would be likely to impede fair competition, with item 3 of article 9A of directive "framework" imposes yet respect; more generally, point 6 of article 5 of the directive 'authorisation' provides that Member States 'shall ensure also that competition is not distorted because of a transfer or accumulation of radio frequencies usage rights. Thus, a grant of additional rights cannot be done automatically, regardless of its potential effects in terms of competition;
― in accordance with the jurisprudence of the Council of State (, June 30, 2006, company Neuf Telecom, no. 289564, ECR 309), the authorisations for the use of frequencies are creative rights decisions. Similarly, recital 36 of directive 2009/140/EC of 25 November 2009 attaches to respect for "previously acquired rights. Fact remains that the rights thus acquired spectrum do not constitute an absolute right of use, beyond the technologies and services for which users have explicitly allowed. Therefore, when the principles of neutrality — which, in themselves, an extension of existing rights ― are likely to lead contractors, on behalf of fair competition, to return a portion of their spectrum, the automatic application of these principles would prejudice to acquired rights.
For example, the European Commission adopted a similar approach to wait for the initiative of the operator enjoys a right to call it into question. Thus, she planned the release of frequencies to allow for the issuance of mobile communications on board vessels, specifying that: "Member States which, before the adoption of this recommendation, were granted in the bands of frequencies (...)". "made available for the operation of systems [for mobile shipboard communications], individual (...) exclusive operating rights must, on the occasion of the first review of the amendment, extension or renewal of these rights to exclusive use, change these rights based (...) on the right of the Union European" (5).
It follows that, to secure fair competition which derive rights acquired, point 2 of article 9A of directive 'framework' should be read as follows. It requires the authorities competent ― ARCEP, but also, where appropriate, Prime Minister, regarding the national table of frequency allocations — at the date of May 26, 2016, an obligation of result in "General authorities" of a regulatory nature: on that date, they must comply with the principles of neutrality, so that these principles "can" be rendered effective, according to the wording of points 3 and 4 of article 9 of directive framework. Point 2 of article 9, however, on this same date bis does not impose to the authority as an obligation of means concerning authorisations for the use of frequencies, of individual nature: they must be in compliance, this ensuring compliance does not affect fair competition subject. In this way, ARCEP shall automatically apply the principles of neutrality to new individual authorizations for the use of frequencies, and will review, on a case by case, continuing ancient permissions, to check whether it is possible to apply the principles of neutrality.
For example, the application of the principles of neutrality authorisations issued in the 3.5 GHz to loop operators band local radio would lead, inter alia, an increase in the fees associated to ensure conditions of fair competition. Should ensure that the operators concerned are not forced into such developments if they are not wanted and may endanger their project.
ARCEP issues, as a result, a negative opinion on the provision contemplated in the draft order and proposes the following wording, which is faithful to the wording and the spirit of the directive framework, taking into account the explicit mention of the principles of neutrality in the CPCE: «art.» 56 - i. ― the holder of an administrative authorisation for the use of radio frequencies have been allocated prior to the enactment of the present order and that remains valid for a period of five years at least after May 25, 2011 may request, prior to May 25, 2016, the regulatory authority for electronic communications and posts to reconsider restrictions on use imposed on the licensee in accordance with the provisions laid down in paragraphs II and III of article L. 42. A decree in Council of State shall determine the modalities of this review.
«II. — starting May 25, 2016, the regulatory authority for electronic communications and posts takes all appropriate measures to ensure that the removal of restrictions on use of frequencies other than those required under II and III of article L. 42 shall apply to all other permissions for the use of frequencies allocated before the promulgation of this order and still in force on 25 may 2016.» In this framework, the regulatory authority for electronic communications and posts takes steps to ensure conditions of effective competition.
«III. — starting May 25, 2016, the decisions taken in application of article 42 I are put in accordance with the objective provided for in 17 ° of article L. 32 - 1 [principles of technological neutrality and service] subject to the restrictions necessary to title II and III of article L. 42 of post and electronic communications code.»
(ii) other rules applicable to authorizations for frequencies: like article 9 bis of the directive 'framework', paragraph 1 of article 17 of the directive 'authorisation' also imposes compliance "General authorities" and the "individual rights of use" frequency.
Rules on compliance are wider than those referred to in article 9A of directive framework, since they include, ultimately, the principles of neutrality as well as the other rules mentioned in articles 5 to 7 of the directive "authorization".
In addition, the date to meet is here December 19, 2011, and not 25 may 2016 as stated in directive framework. However, for the principles of neutrality, the «legislator» community heard uphold the provisions of article 9A of directive 'framework' on those of article 17 of directive 'authorization', in the words of the latter article (' without prejudice to article 9 bis of the directive 2002/21/EC "). Thus, article 17 is without consequence for the date for compliance with the principles of neutrality.
These provisions have been transposed to the non-codified article 56 of the draft order I. The authority questioned, however, the reference made by the project, the I of article L. 42 in the version resulting from the amendments to the draft, insofar as this reference does not impose on the authority no concrete action.
The Authority proposes to transpose paragraph 1 of article 17 in a separate article, as follows: «art.» 56A. -Electronic communications and postal regulation authority warns in accordance with the provisions of article L. 42 II - 1 for December 19, 2011 at the later administrative permissions for the use of frequencies granted prior to the entry into force of this order and still in force on December 19, 2011.
"Where the application of the first subparagraph leads to restrict or extend the rights to use existing electronic communications regulatory authority and positions may extend permissions through September 30, 2012 at the latest, subject to such a measure does not affect the rights of other users. The regulation of electronic communications and postal authority shall notify this extension to the European Commission and shall give the reasons. (') iii the fight against harmful interference: the draft Ordinance contains provisions aimed at strengthening the fight against harmful interference, that allows 4 ° of article 17 of law No. 2011-302, March 22, 2011.
In the first place, article L. 33-3-1, in the proposed wording, establishes the principle of banning the acquisition, manufacture, assignment and installation of any device intended to render inoperative devices of electronic communications, both for the issuing and reception. By way of derogation from this rule, the trade of such devices is possible only on permission of the general secretariat of defence and national security (SGDSN), and their installation is permitted only in the framework of the activities related to public security, defence, State security or the activities of the State in the field of criminal law.
This new wording therefore terminates the possibility, provided for in article L. 33 - 3 to install jamming devices in the theatres. ARCEP takes note of this change.
Secondly, the draft order complements article L. 42 - 1 by an III.
Discontinuation of analogue broadcasting will release new frequencies, issues of the 'digital dividend', in the 800 MHz band, allocated to the mobile service effective December 1, 2011. Thus, mobile services and broadcasting services will co-exist in adjacent spectrum, around 790 MHz, which may result, eventually, interference problems. The amendment envisaged under the III of article L. 42 - 1 of the CPCE States that mobile operators allottees of previous frequencies for broadcasting should, on the one hand, take 'the measures necessary for preventing and treating harmful interference caused by their networks to the reception of audiovisual communication services broadcast transmitting stations previously authorized by the Conseil supérieur de l'audiovisuel ". on the other hand, costs "related to the collection and the treatment of claims" to "harmful interference caused by their networks to the reception of audiovisual communication services.
ARCEP includes this provision, thus formulated, that the Government wants to require mobile operators to take the necessary technical measures to prevent and treat the interference from broadcasting previously put into service stations, and put in their care the costs associated with the processing of complaints relating to the interference caused by their networks, without imposing on them to collect and process these claims.
The Authority notes that the obligation to take the necessary technical measures to avoid interference with operators originally seems redundant with the rules of the national table of frequency allocations, which in case of interference between two assignments, impose the assignment registered to the national registry operator frequencies to stop interference.
The Authority also notes that the obligation regarding claims of viewers does not extend to the collection and the processing of these claims. ARCEP can therefore only encourage the strengthening of the existing mechanism, by which the national agency of frequencies (ANFR) collects and processes claims for interference, pursuant to an agreement (the so-called "PRTV") that it has signed with the Conseil supérieur de l'audiovisuel (audiovisual regulatory body-CSA), on the basis of article 22 of Act No. 86 - 1067 of 30 September 1986 on freedom of communication. This agency is, in effect, the administration of the State to have an overview of radio frequencies, and it has legal and technical competence to verify compliance with their obligations by the actors.
On the other hand, the authority has doubts on the opportunity to weigh on mobile operators, the financial burden arising from the treatment of claims arising from the interference caused by mobile networks. Such a financial load may drive operators to reduce the amount of auctions that they will wear for the allocation of these frequencies. In addition, the authority questioned the modalities according to which such financial contribution would be paid. In any case the last sentence of article 43, which required operators to inform the authorities "of the measures taken to this end", creates an ambiguity on the charge that applies to them and should be deleted.
The authority therefore wish that the burden of the cost related to the collection and the processing of claims relating to the interference is not imposed on mobile operators.
4. the powers of the regulator at the same time that it reinforces their independence, the new Community framework strengthens the powers of national regulators.
i) settlement of disputes: in application of article L. 36 - 8 of the CPCE, the authority can resolve disputes arising between operators, specifying "fair conditions, technical and financial" in which the dispute must be resolved. The Constitutional Council ruled that the decisions taken by the authority to resolve disputes "are binding decisions taken in the exercise of public authority" by an "administrative authority" (decision No. 96-378 DC of 23 July 1996 on the law of regulation of telecommunications, paragraph 21).
Limited to disputes between operators, the jurisdiction of the NRAs has been extended, by article 20 of the directive 'framework' to the disputes between "these companies and other companies in the Member State with obligations of access and/or interconnection arising out of this directive or the specific directives". Specifically, ARCEP will, now, settle disputes between a claimant of the (PSI) information society and electronic communications operator. The draft order provides complete II of article L. 36 - 8 of the CPCE, listing the subject of some dispute which may be referred to the authority by a 5 ° as follows: "conditions technical and tariff of traffic between an operator and a company providing communications services to the public in line." The Authority issues a positive opinion on this wording.
II) power of sanction: article 10 of the directive 'authorisation' modifies the power of sanction of the RNA to make it more effective. Therefore, the period in which the formal notice sent must be respected by the person in question is freely determined by RNA, in a reasonable manner. Authorities are given the power to pronounce penalties with retroactive effect, of the injunctions as well as the faculty, in the event of breaches of serious and repeated, to impose sanctions covering the duration of a same breach subsequently corrected.
The draft order provides, rightly so, delete the minimum duration of one month provided to the person in question to comply with the formal notice, in article L. 36 - 11 of the CPCE. ARCEP regrets, however, that the project draws not all the consequences of the new Community provisions, by not transposing the possibility for the authority to pronounce fines against the sanctioned persons.
III) quality of service: article 22 of the directive 'universal service' has been supplemented by a paragraph 3, providing that NRAs may fix the minimum requirements imposed on operators of quality of service, in order to combat the degradation of service and slowing of traffic. Before taking these steps, the NRAs must provide to the Commission all relevant information enabling, where appropriate, to comment or recommendations on the draft decision, including RNA shall take the utmost account. BEREC is also informed of the measure envisaged by the NRAs.
These provisions are transposed into a new article L. 36 - 15 of the CPCE. ARCEP may thus establish the minimum requirements to preserve the quality of service. The project however said that the intervention of ARCEP is ' under the conditions laid down in article L. 36 - 6. Article L. 36 - 6 of the fixed CPCE where ARCEP may exercise a regulatory power, which is, in accordance with constitutional jurisprudence, limited both by its scope as its content (see, in particular, 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 thus taken by ARCEP is subject to approval of the Minister responsible for electronic communications.
Defined as "an act of control of public power (...)". "with the sole purpose and the only effect is to improve the effects of another legal act by making it mandatory or in extending the reach" (6), the approval of a legal act by an administrative authority may sometimes allow the exercise of discretion, based on considerations of opportunity, sometimes place the administrative authority in a situation of linked competence. In the latter case, the related jurisdiction may either result specifically a text (7), be inferred implicitly.
To the present case, the approval by the Minister for a regulatory decision of ARCEP ― which is an independent authority within the meaning and for the purposes of the Community framework ― should be interpreted as conferring on the Minister jurisdiction related to make binding decision submitted. Moreover, it is difficult to envisage that the Minister can exercise its power of approval to opportunity, at the end of a process of consultation with the Community institutions ― European Commission and BEREC ―, to strengthen the coherence of the application of the rules throughout the Member States.
Subject to this interpretation, the depositary authority finds that the words: "under the conditions laid down in article L. 36 - 6", contained in the draft new article L. 36 - 15 of the CPCE, adds nothing to the State of the existing law. The authority therefore takes note of the new regulatory powers which will be given for quality of service and hoped that, for a perfect implementation of article 22 of the directive 'universal service', it, itself, in addition, has ― if necessary, through regulatory ― to impose individual quality of each operator service obligations, regardless of the regulatory decision.
IV) symmetrical regulation strengthening:
A market has become competitive, the intention of the "legislator" community is, gradually, treat all operators without distinction and to increase, therefore, the role of symmetric regulation, i.e. regulation applicable in the same way to all operators, at the expense of asymmetric regulation, which imposes rules to the single operator recognized as powerful on the market. For this purpose, the new framework of guidelines strengthens the powers of national regulators for symmetric regulation supplementing article 12 of directive 'framework' by new paragraphs numbered 3 to 5.
Under these new provisions, it is necessary to impose on operators the sharing of infrastructure, active and passive, and coordination of the work of civil engineering.
In this respect, the draft new article L. 34-8-4, inserted in the CPCE, meets the objectives laid down by Community law.
v) functional separation: Although the new 'telecom package' tends, overall, to strengthen the symmetric regulation, regulators are equipped with the new power to impose functional separation of a powerful operator on the market, where other asymmetric remedies have failed to achieve expected results.
In application of article 13 bis of the directive 'access', RNA can impose on a vertically integrated undertaking to entrust its activities for the provision of wholesale of the products concerned to an economic entity functionally independent. This regulatory tool cannot be used as a last resort, when other remedies were insufficient to ensure effective competition and that failures persist on the market. The Community provisions stipulate the procedure to follow, including information from the European Commission and the possible remedial measures already imposed on the undertaking undergoing functional separation. Article 13 of the directive provides 'access', too, the case of a company that decided, voluntarily, to a functional separation of its wholesale and retail activities. In this case, the undertaking must inform the RNA of his project, which will then proceed to a re-evaluation of the obligations imposed on the company.
In accordance with the provisions which have just been mentioned, the draft order creates a new article L. 38 - 2 of the CPCE, relating to the remedy of functional separation, while new section L. 38-2-1 provides to specify the conditions of information to the authority by a company that would decide the functional separation of its activities. On this point also, and without prejudging any use it will make of this new provision, the Authority issues a favourable opinion.
III. ― Conclusion with the exception of the provisions of article L. 33 I n - 1 of the CPCE, the new article L. 121-83-1 of the code of consumption and of II of non codified article 56 of the draft order, and subject to the other comments preceding, ARCEP expresses a favourable opinion on the draft order that has been submitted.
This notice shall be notified to the Minister of economy, finance and industry and the Minister 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.
President, j. Silicani (1) 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 services of electronic communications, 2002/19/EC on access to the networks of electronic communications and associated resources, as well as their interconnection, and 2002/20/EC relating to the authorization of electronic communications services and networks.
(2) directive 2009/136 / EC of the Parliament European and of the Council of 25 November 2009 amending directive 2002/22/EC on universal service and the rights of users of electronic communications services and networks, directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for enforcement of consumer protection legislation.
(3) see in particular the decision of the authority no. 2009-0637 of 23 July 2009 setting out detailed rules for the application of the fixed number portability and the authority decision No. 06-0381 of 30 March 2006 setting out the arrangements for the application of the portability of mobile numbers in metropolitan France.
(4) CE, Ass., October 22, 2010, Bleitrach, no. 301572, to be published in the recueil Lebon; see Chronicle D. Botteghi, A. Lallet, "development of public places for people with disabilities access: the State against liability ', AJDA 2010, pp. 2207.
(5) Commission recommendation of 19 March 2010 on the authorisation of systems intended for the services of communications mobile on board vessels (MCV services), 2010/167/EU, plays L 72/42, March 20, 2010, paragraph 10.
(6) conclusions E. Honorat, 26 January 2000, Pallickal et al., no. 197709, T. 798 and 1134.
(7) cf. article 7 of Decree No. 92-23 of January 8, 1992 concerning the approval of the Securities and technological education graduates.