JORF n ° 0067 18 March 2012 text no. 38 Decision No. 2012-0215 14 February 2012 relative to the questionnaire for the collection of information needed for the monitoring of the mobile markets NOR: ARTE1207396S ELI: unmodified available the regulatory authority for electronic communications and posts, having regard to directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to electronic communications networks and associated facilities , as well as their interconnection (directive 'access');
Having regard to directive 2002/20/EC as amended by the European Parliament and of the Council of 7 March 2002 on the authorisation of networks and electronic communications services (directive 'authorisation');
Having regard to directive 2002/21/EC as amended by the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for networks and electronic communications services (directive 'framework');
Having regard to directive 2002/22/EC as amended by the European Parliament and of the Council of 7 March 2002 on universal service and the rights of users of networks and electronic communications services (directive 'universal service');
Having regard to the Commission recommendation (2007/879/EC) European of 17 December 2007 on relevant markets of products and services in the the electronic communications sector susceptible to ex ante in accordance with directive 2002/21/EC Regulation as amended by the European Parliament and of the Council of 7 March 2002 on a regulatory framework for networks and services of electronic communications (recommendation "relevant markets") common , and its explanatory notes;
Seeing the code postal and electronic communications, particular articles L. 32 - 1 L. 32 - 4, L-37 - 1, d. 98-11 and d. 98 - 12;
Having regard to decision n ° 2011 - 0594 electronic communications regulatory authority and positions as of May 31, 2011 on a questionnaire for the collection of information needed for the application of article L. 37 - 1 of the post and electronic communications code.
Having regard to decision n ° 2012 - 0208 electronic communications regulatory authority and posts dated February 14, 2012 on annual and quarterly surveys in the sector of electronic communications;
After having deliberated on February 14, 2012;
Under its powers of General information necessary for the performance of its missions, and including observation and monitoring of contracts, the authority has put in place by decision No. 2010-0715 dated June 22, 2010 a device collection quarterly of information from mobile operators regarding the quantitative elements and qualitative relating to their activity, for the purpose of monitoring the market.
The legal framework applicable in article 5 of the directive 'framework' on 7 March 2002, as amended by directive 2009/140/EC provides the possibility for national regulatory authorities to collect information from companies involved in the provision of electronic communications services and networks: '1. Member States shall ensure that undertakings providing electronic communications services and networks transmit information. including financial information, which are necessary for national regulatory authorities to ensure conformity with the provisions of this directive and the separate directives or with the provisions of the decisions adopted in accordance with such guidelines. In particular, national regulatory authorities have the power to require these companies to provide information on the evolution of networks or services that could have an impact on the services they provide to competitors (...)
Companies provide this information quickly and, on request, in accordance with the deadlines and the level of detail required by the national regulatory authority. The information requested by the national regulatory authority are proportionate to its needs for the fulfilment of this task. The national regulatory authority shall state the reasons justifying its request for information and process the information in accordance with paragraph 3. "The provisions of article 5 of the directive 'framework' have been transposed in french law, on the one hand, article d. 98 - 11 of the code of postal and electronic communications (hereinafter «CPCE»), secondly, in articles L. 36 - 13 and L. 32 - 4 of the code.
Request for information necessary for the application of article L. 37 - 1 of the CPCE article L. 33 - 1 of the CPCE has that: "the establishment and operation of networks open to the public and the provision to the public of electronic communications services are subject to compliance with rules relating to: (...)".
' 1. the obligations that apply to the operator to allow its control by the electronic communications regulatory authority and positions, and those that are necessary for the application of article L. 37 - 1.
Section d. 98 - 11 of the CPCE taken pursuant to article L. 33 - 1 of the code specifies the rules on provision of information requirements that apply to the operator to allow its monitoring by the regulatory authority electronic communications and positions (hereinafter "the authority") and those required for the purposes of article L. 37-1.
Under the terms of section d. 98 - 11 of the CPCE: "the operator must provide the electronic communications regulatory authority and positions of the figures relating to the operation of its network and the provision of services, in the financial, commercial and technical fields in the conditions specified below.
1. at intervals defined by the regulatory authority for electronic communications and posts or at his request, the operator shall communicate the necessary information: d) has the conduct of analyses of markets provided for in article L. 37 - 1, which include, in addition to those which are the subject of a reasoned request: ― the description of all of the services offered;
― the rates and terms and conditions of the offer;
― statistical traffic data;
― data of turnover;
― the parks of clients data;
― the forecasts of growth of its activity;
― its network deployment-related information;
― the accounting and financial information relevant.
3. the authority shall indicate the reasons for its application, which shall be proportionate, and specifies the level of detail of the information to be provided and their delivery times. "In accordance with article d. 98 - 3 of the CPCE, the abovementioned provisions of article d. 98 - 11 apply"to the operators of networks open to the public and providers of electronic communications services to the public.
Thus, on the basis of articles L. 33 - 1 and d. 98 - 11 of the CPCE, the authority may collect technical, commercial and financial information listed in the d to the 1 of section d. 98-11 necessary for the conduct of analyses of the market of wholesale access to the physical infrastructure of the wireline local loop (market 4), of providing wholesale access to high and very high current flow (market 5) and wholesale supply of capacity services (market 6).
Request substantiated information on the basis of articles L. 36 - 13 and L. 32 - 4 of the CPCE pursuant to article L. 36 - 13 of the CPCE, the authority "collects the information and conduct inquiries necessary for the performance of its duties, within the limits and conditions laid down by article L. 32-4.
Article L. 32 - 4 of the precise CPCE as the authority may, in a manner proportionate to the needs related to the performance of its tasks, and on the basis of a reasoned decision: "1 ° collect with physical or legal persons operating electronic communications networks or services electronic communications information or documents necessary to ensure compliance with these people to the principles defined in articles L. 32 - 1 and L. 32-3. as well as the obligations imposed on them by the present code or by texts taken for its implementation. » Request for information necessary for the respect of the principles defined in article L. 32 - 1 of the CPCE the II of article L. 32 - 1 of the CPCE has that: "in the context of their respective powers, the Minister in charge of electronic communications and electronic communications regulatory authority and positions take measures reasonable and proportionate to the objectives pursued under conditions objective and transparent, and ensure. :
2 ° a exercise for the benefit of users of an effective and fair competition between network operators and providers of electronic communications services. Accordingly, to ensure the exercise of competition relating to the transmission of content and, where appropriate, to the promotion of infrastructure-based competition;
3 ° to the development of employment, effective especially in improved infrastructure investment, new generation of innovation and competitiveness in the sector of electronic communications;
4 ° a the definition of conditions for access to the networks open to the public and networks which ensure the opportunity for all users to freely communicate and equality of conditions of competition;
10 ° A putting in place and the development of networks and services and the interoperability of services at European level;
11 ° to use and effective management of radio frequencies and numbering resources. » Request for information necessary for compliance with the obligations imposed by the code or text taken for its application on the basis of article L. 32 - 4 of the CPCE, the authority may collect the information necessary to ensure compliance with the obligations imposed by the CPCE or decisions taken thereunder.
Information on offers made to users in addition, under section d. 98 I - 12 of the CPCE, operators of networks open to the public and the public electronic communications service providers communicate to ARCEP, upon request, in addition to the information provided for in articles L. 111 - 1 and, where appropriate, L. 121 - 18 of the code of consumption, information on : ― "General and contractual provision of the service provided in the context of his statement, conditions which specify: ― the conditions of renewal of contracts as well as, where appropriate, any minimum contractual term;
― the conditions relating to the quality of service;
― delivery times and the types of maintenance service offered;
― with regard to the telephone service to the public, the description of the services offered in the context of proposed contracts;
― the rates of its offerings, including formulae for tariff reductions;
― forms of compensation and reimbursement proposed, and dispute resolution mechanisms. "The objectives pursued by the authority by its decision No 05 - 0321 dated June 14, 2005, the authority had set up a questionnaire for the collection of information needed for the application of article L. 37 - 1 of the CPCE. This annual collection of quantitative information allowed the authority to maintain the data that can be based its analyses of markets to observe developments and, if necessary, be able to review the situation of the relevant market if the observed developments warrant.
With regard more specifically to the mobile market, a specific collection of information had been established as part of the mobile observatory. With regard to regular and frequent changes of this market and its importance in the sector of electronic communications, this collection, in near real-time, was based initially monthly then now quarterly.
In addition, wholesale access and mobile call origination market was the subject of an analysis of market by the authority. Analysis, which concluded that the imposition of a remedy taking the form of a requirement to access in metropolitan France and an obligation to deployment in the Antilles-Guyana area roaming, has been suspended to take the full measure of the impact of the recent emergence of virtual operators on the animation of retail in metropolitan France. Thus, markets wholesale and retail access and mobile call origination were placed under surveillance.
Furthermore, in order to allow the "exercise for the benefit of users of an effective and fair competition between network operators and providers of electronic communications services" provided for in article L. 32 - 1 of the CPCE, the authority must have information on the competitive functioning of retail electronic communications services markets.
Specifically, pursuant to article L. 32 - 1 of the CPCE, the compilation of information on the fluidity of retail electronic communications markets, whose field is part of the powers conferred by the aforementioned articles, is necessary for the exercise of the tasks of the authority.
In addition, the competitive developments subsequent to the Act No. 2008-3 January 3, 2008, for the development of competition in the service of consumers can lead the authority to reassess the competitive analysis that it is up to carry out its missions. It is therefore imperative that the Authority continues to be able to follow a regular and precise manner these developments in order to adapt, where necessary, regulating it in place.
Finally, new services are a major issue in terms of the market in the medium term, thereby justifying to follow the development.
Developed above elements justify specific monitoring of the mobile market, according to a quarterly frequency, through a collection of information feeding refund documents described to the of the present decision, through the questionnaire annexed to this decision. In this context, it should also be that operators transmit systematically the major evolutions of their tenders in accordance with article d. 98 I - 12 of the CPCE.
The companies concerned by the monitoring of the mobile markets must meet the collection of quarterly information all mobile operators, whether it's operating companies or establishing an electronic communications network open to the public (network operators) or providing public electronic communications (virtual operators) service.
The nature of the collected elements the collection of up-to-date information is formalized by two questionnaires annexed to this decision, which will be populated on a quarterly basis by the operators. The scope of the information requested takes into account the specificities of the considered territories as well as the nature of the actors (network operators or mobile virtual network operator) or even their dimension.
The requested information are, where appropriate, on different segments of customer, including the corporate clients and among the public, prepaid and postpaid customers.
They allow the authority to assess particular: ― the market size (number of clients, including at a regional or departmental level as appropriate), as well as its evolution, for example in terms of gross sales and migration;
― the fluidity of the market, with preserved numbers, terminations, and the number of clients under commitment or free of engagement;
― the volume of activity (turnover, traffic volumes, etc.) and the commercial dimension (offers retail and conditions contract, distribution, etc.) of the market.
― the development of the market of wholesale access and call origination mobile, with the communication of virtual mobile operators (MVNO) contracts and their records of implementation, as well as in terms of business volume (turnover, volumes of traffic, etc.).
This decision may be amended as necessary, in light of the development of the wholesale and retail markets.
The treatment and utilization of the collected the information collected through the questionnaires annexed to this decision will be used pursuant to article L. 37 - 1 of the CPCE.
This information will be used by directions of the authority in procedures relating to market analysis and for analyzing the State and foreseeable development of competition. They may be used in documents submitted to public consultation, subject to respect for the secrecy of the business. In addition, data may be used for the elaboration of indicators aggregated in statistical publications of the authority.
This information will be of a diffusion controlled within the authority.
In accordance with section D. 295 of the CPCE, this information may also be communicated to the European Commission, decides: Article 1 operators mobile network operators and/or suppliers of services concerned shall on a quarterly, answer questionnaires annexed to this decision, as well as the contracts of virtual mobile operators.
Section 2 information are communicated to the authority no later than: ― Monday, April 16, 2012 for the first quarter of 2012-related information;
― Monday, July 16, 2012 for the second quarter of 2012-related information;
― Tuesday, October 16, 2012 for the third quarter of 2012-related information;
— Wednesday, January 16, 2013 for the information related to the fourth quarter 2012.
For the following quarters, the information will be communicated to the authority no later than sixteen days after the end of each quarter.
Article 3 decision No. 2010 - 0715 dated June 22, 2010 concerning the questionnaire for the collection of information needed for the monitoring of the mobile markets is repealed.
Article 4 the Director general of the authority is responsible for the implementation of this decision, which, with the exception of its annex, will be published in the Official Journal of the French Republic.
Done at Paris, on 14 February 2012.
President, j. Silicani