Key Benefits:
Publics concerned: professionals (electronic communications operators) and users.
Subject: electronic communications. – Obligations weighing on operators. – Protection of personal data. – Security of the means of interception.
Entry into force: the text comes into force on the day after its publication, with the exception of certain provisions relating to the strengthening of the security of electronic communications interceptions that come into force on July 1, 2012.
Notice: 1° The decree defines the modalities whereby the Autorité de régulation des communications électronique et des postes (ARCEP) may impose on operators deemed to have a significant influence on a market in the electronic communications sector the functional separation of their activities. It also specifies the conditions under which these operators must notify ARCEP of their plans to dispose of local access network facilities or equipment, so that ARCEP can assess their impact on their obligations.
2° Additional obligations shall be borne by the operator(s) responsible for providing the component or components of the universal service component provided for in 1° of Article L. 35-1 of the Post and Electronic Communications Code. In the event of the transfer of a substantial part or all of the local access network assets of an operator responsible for providing certain components of the universal service, the Order requires the operator to notify the transfer project to the Minister responsible for electronic communications and ARCEP.
3° Restrictions on the use of radio frequencies issued prior to August 24, 2011 may be the subject of a request for a review with ARCEP before May 24, 2016 under the principles of technological neutrality and service neutrality under the conditions defined by the Order.
4° Violations of personal data being processed in the context of electronic communications services must be notified by the operator to the National Commission on Information and Freedoms, which may require the operator to inform the subscriber or individual who is the victim of this violation.
5° The decree also imposes new constraints on operators in order to strengthen the security of the devices necessary for the interceptions of electronic communications and makes several sets of adjustments to the provisions of the postal code and electronic communications relating to the National Frequency Agency and the allocation and management of the domain names of the internet as well as to the provisions of the decree of February 25, 2011 on the preservation and communication of data to identify any person who has contributed to the creation.
References: the decree is taken for the transposition of the directives 2009/136/EC and 2009/140/EC of the European Parliament and the Council of 25 November 2009.
The texts amended by this decree can be consulted, in their drafting, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Having regard to Regulation (EC) No 1211/2009 of the European Parliament and Council of 25 November 2009 establishing the Organization of European Electronic Communications Regulators (ORECE) and the Office;
In view of Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and user rights in relation to 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 national authorities responsible for monitoring the application of legislation on electronic communications;
Considering 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 electronic communications networks and services, 2002/19/EC on access to electronic communications networks and associated resources and their interconnection and 2002/20/EC on the authorization of electronic communications networks and services;
Considering the post and electronic communications code;
Considering the Civil Procedure Code, including Article 931;
Vu la Act No. 78-17 of 6 January 1978 amended on computer science, files and freedoms, including article 34 bis;
Vu la Act No. 91-646 of 10 July 1991 amended on the secrecy of electronic communications correspondence;
See?Order No. 2011-1012 of 24 August 2011 on electronic communications;
Vu le Decree No. 92-1170 of 20 October 1992 publishing the final acts of the World Radiographic and Telephone Administrative Conference (CAMTT), held in Melbourne on 9 December 1988;
Vu le Decree No. 2005-1309 of 20 October 2005 taken for application of Act No. 78-17 of 6 January 1978 related to computing, files and freedoms;
Vu le Decree No. 2009-834 of 7 July 2009 establishing a national jurisdiction service known as the "National Information System Security Agency";
Vu le Decree No. 2011-219 of 25 February 2011 relating to the storage and communication of data to identify any person who has contributed to the creation of an online content;
Considering the opinion of the Electronic Communications Advisory Commission dated 4 November 2011;
Considering the opinion of the Electronic Communications and Post Regulatory Authority of 15 November 2011;
Considering the opinion of the Superior Commission of the Public Post and Electronic Communications Service dated 15 November 2011;
Having regard to the opinion of the National Commission on Informatics and Freedoms of 12 January 2012;
The State Council (section of public works) heard,
Decrete:
In articles R. 9 and R. 20-2 of the Post and Electronic Communications Code, the words "Official Journal of the European Communities" are replaced by the words "Official Journal of the European Union".
In II of article R. 20-2, the words "community technical specifications" are replaced by the words "European technical specifications".
Section R. 11-8 of the same code is replaced by the following provisions:
"Art. R. 11-8.-Before the Court of Appeal and its first president, the representation and assistance of the parties and the Authority for the regulation of electronic communications and posts shall be exercised under the conditions provided by theArticle 931 of the Civil Procedure Code. »
In chapter II, section 1, title I, of Book II of the Post and Electronic Communications Code, a paragraph I is inserted entitled: " Provisions relating to high-speed optical fibre electronic communications lines in a building." It includes sections R. 9-2 to R. 9-4.
I. ― In chapter II, section 1, title I, of Book II of the same code, a paragraph II is inserted entitled: " Provisions relating to operators having significant influence on a market in the electronic communications sector".
II. ― It is inserted in chapter II, section 1, paragraph II, title I, of Book II of the same code, articles R. 9-5 and R. 9-6 as follows:
"Art. R. 9-5.-I. ― When the Electronic Communications and Post Regulatory Authority intends to impose the obligation under Article L. 38-2, it submits to the Commission a proposal that includes:
"– elements justifying the lack of effective competition and the persistence of significant competition problems or market failures with respect to the wholesale provision of certain access products markets, despite the imposition of obligations under section L. 38;
"—the rationale that there is no or little opportunity for effective and sustainable competition based on infrastructure within a reasonable period of time;
"– an analysis of the intended impact on the regulatory authority, on the operator, in particular on the personnel of the separate entity and on the electronic communications sector as a whole, as well as on incentives for investment in this sector, especially with regard to the need to ensure social and territorial cohesion, as well as on other interested parties;
"– an analysis of the expected effect on competition, especially for other operators, as well as potential effects for consumers;
“– An analysis of the reasons for the use of this obligation as the most effective way to solve competition problems or market failures.
“II. ― The AMF's draft decision includes:
"—the precise nature and degree of separation and, in particular, when it is envisaged to provide it with the legal personality, the legal status of the functionally independent economic entity;
"—the list of the assets of that entity as well as the products or services it must provide;
"the management arrangements to ensure the independence of staff employed by this entity and the corresponding incentives;
“—the rules to ensure compliance;
“—the rules to ensure transparency of operational procedures, especially for other interested parties;
"—a compliance control program that includes the publication of an annual report. »
"Art. R. 9-6.-The draft assignment referred to in Article L. 38-2-1 shall be notified to the Electronic Communications and Post Control Authority as soon as the assignee is in a hurry and no later than eight months before the date of the assignment.
"The notification, signed by a representative of the assignor and a representative of the prospective assignee, is addressed to the Authority for the regulation of electronic communications and posts by registered letter with a request for notice of receipt. It includes:
“—the information relating to the assignor and the prospective assignee;
“– facilities and equipment subject to the disposal project, their characteristics and location;
“– the technical and financial conditions of the assignment project;
"– the desired date for the effective taking of the assignment;
"– the number of access or customers involved, the volume of traffic and the turnover of the large concerned divided by type of service provided on the infrastructure in question.
"It indicates, if applicable, the confidential nature of all or part of the information transmitted.
"The Authority may request additional information to enable it to assess the impact of the proposed transaction on the obligations imposed or to be determined in accordance with section L. 37-2.
"The amendments to the draft assignment acting after the notification as well as the final result of the assignment process are notified to the Authority without delay. »
In the second paragraph of section R. 10 of the Post and Electronic Communications Code, the words "to the distributor of this service" are replaced by the words "of the distributor of its service".
Article R. 10-1 of the same code is amended as follows:
I. ― In the first paragraph, the words: "in subscribers' lists or users of the telephone service to the public" are replaced by the words: "related to people".
II. ― In the second paragraph, after the words: "The direct prospecting of natural persons" are inserted the words ", subscribers or users".
I. ― In sections R. 10-12 to R. 10-14, R. 10-19 and R. 10-21 of the same code, the references to section L. 34-1 of the same code are amended as follows:
1° In the first paragraph of Article R. 10-12, the reference to "II" is replaced by references to "III and IV";
2° In the first paragraph of Article R. 10-13, the reference to "II" is replaced by the reference to "III";
3° In the first paragraph of Article R. 10-14, the reference to "III" is replaced by the reference to "IV";
4° In the first and third paragraphs of R. 10-19, the reference to "I" is replaced by the reference to "II";
5° In the first paragraph of R. 10-21, the reference to "I" is replaced by the reference to "II";
II. ― In the first paragraph of Article R. 10-13, the reference to "I" is replaced by the reference to "II".
Section R. 20-30 of the Post and Electronic Communications Code is amended as follows:
I. ― In the first paragraph, the words: "from overseas departments and Mayotte communities" are replaced by the words: "from Guadeloupe, Guyana, La Réunion, Martinique, Mayotte, Saint-Barthélemy, Saint-Martin".
II. The second paragraph is replaced by the following:
"Any operator responsible for providing the component of the universal service referred to in the 3rd of Article L. 35-1 or the components or components of the components described in the 1st and 2nd of the same article, pursuant to Article L. 35-2, or a complementary service to the universal service pursuant to Article L. 35-5, shall continuously ensure the availability of this service for all users of the geographical area for which it has been designated in the respect of the »
III. ― In the third paragraph, the words "required services" are replaced by the words "additional services to universal service".
Section R. 20-30-1 of the same code is replaced by the following provisions:
"Art. R. 20-30-1.-I. ― Any operator who, pursuant to section L. 35-2, is responsible for providing the component or elements of the universal service component referred to in 1° of section L. 35-1 shall provide in the geographic area for which the operator has been designated to any person within the scope defined in section R. 20-30 who requests the following services for which the operator has been designated:
"a connection to a fixed network open to the public to issue and receive telephone communications, fax communications and data communications at a sufficient rate to allow access to the Internet; sufficient flow is the one normally offered by a telephone line;
" ― and an offer of telephone service to the public from and to the metropolis, Guadeloupe, Guyana, La Réunion, Martinique, Mayotte, Saint-Barthélemy, Saint-Martin and Saint-Pierre-et-Miquelon, New Caledonia, French Polynesia, Wallis and Futuna, and French Southern and Southern Lands,
"The operator who, pursuant to Article L. 35-2, is responsible for providing the component provided for in 1° of Article L. 35-1 or one of the elements of this component of the universal service allows for the prepaid settlement of these benefits.
"It provides complementary services to the universal service that it is required to ensure under the conditions provided by its terms of reference.
“II. ― The operator, pursuant to section L. 35-2, responsible for providing the connection to a fixed network open to the public referred to in I, shall perform this service as soon as possible, in accordance with the quality of service objectives defined under section R. 20-30-7, and, where applicable, with instalment payments. When this obligation is not met, the subscriber receives financial or commercial compensation.
"III. ― The operator responsible, pursuant to section L. 35-2, for providing the offer of telephone service to the public, shall, on their request, provide a detailed billing as well as the services listed below of selective prohibition of outgoing calls or textual messages or multimedia messages at higher rates or, where technically possible, other similar applications proposed in the context of its offer of telephone service:
“ — banning international calls;
“– Prohibition of long distance calls;
“ — banning national calls to mobile devices;
“—a prohibition of appeals to the national numbering plan issues that implement mechanisms for the final recipient of the communication or partially paid by the latter;
"– Prohibition of text messages or media messages at higher rates or other similar applications.
"This operator provides the offer of specific tariffs to certain categories of people who encounter special difficulties in accessing telephone service because of their income under section R. 20-34. »
Section R. 20-30-3 of the same code is amended as follows:
I. ― After the words: "is made available", the first paragraph is written: " installations, known as public-sector publishers, or other access points to the public telephone service allowing unrestricted access to this service."
II. ― In the second and third paragraphs, after the words "publiphones" are inserted the words "or another point of access to telephone service to the public".
III. ― In the third paragraph, the words "outre-mer departments and Mayotte communities" are replaced by the words: "from Guadeloupe, Guyana, La Réunion, Martinique, Mayotte, Saint-Barthélemy, Saint-Martin" and the words "of Wallis and Futuna" are replaced by the words "of the Wallis and Futuna Islands".
Section R. 20-30-4 of the same code is amended as follows:
I. ― The first paragraph is replaced by the following:
"In accordance with the 4th of Article L. 35-1, the operators responsible, pursuant to Article L. 35-2, to provide the component of the universal service referred to in Article L. 35-1, or the components or components of the components described in 1° and 2° of the same article shall ensure that users with disabilities have access to this service, within the limits of available technologies that can be implemented at a reasonable cost. »
II. ― At 1°, after the words: "the component" are inserted the words "or one of the elements of the component".
III. ― In the two sentences of 3°, after the words: "publiphones" are inserted the words: "or other points of access to telephone service to the public".
Section R. 20-30-5 of the same code is replaced by the following provisions:
"Art. R. 20-30-5.-In compliance with the provisions of articles R. 20-30-8 and R. 20-30-11, any operator charged, pursuant to article L. 35-2, to provide the component of the universal service mentioned in the 3rd of article L. 35-1 or the offer of telephone services of the component of the universal service mentioned in the 1st of the same article Martin »
After the words: "in accordance with Article L. 35-2,", Article R. 20-30-6 of the same code is thus written: "to provide the component of the universal service referred to in Article L. 35-1 or the telephone service offer of the universal service component mentioned in the 1st of the same article shall not result in compensation for the universal service. »
In the first paragraph of articles R. 20-30-7, R. 20-30-8 and R. 20-30-10 of the same code, the words: "to provide one or more of the components of the universal service referred to in 1° and 3° of Article L. 35-1 or the elements of that described in 2° of the same article" are replaced by the words: "to provide the component of the universal service referred to in 3° of Article L. 35-1 or the components or the components or
In the first paragraph of article R. 20-30-9 of the same code, the words: "of the universal service mentioned in the 1st or the elements of that mentioned in the 2nd of article L. 35-1" are replaced by the words: "or one of the elements of the universal service mentioned in the 1st and 2nd of article L. 35-1".
Section R. 20-30-11 of the same code is amended as follows:
I. ― In the first paragraph of the I, the words: "one of the components of the universal service referred to in 1 and 3 of Article L. 35-1 or the elements of that described in 2° of the same article" are replaced by the words: "of the component of the universal service referred to in 3° of Article L. 35-1 or the components or one of the components described in 1° and 2° of the same article".
II. ― In the second paragraph of the I, the words: "the component of the universal service referred to in the 1st of Article L. 35-1" are replaced by the words: "to provide the connection referred to in the 1st of Article L. 35-1".
III. ― In the third paragraph of I, the words: "the component of the universal service referred to in the 1st of Article L. 35-1" are replaced by the words: "the connection referred to in the 1st of Article L. 35-1".
IV. ― In the first paragraph of II, the words: "one of the components of the universal service referred to in 1 and 3 of Article L. 35-1 or the elements of that described in 2 of the same article" are replaced by the words: "the component of the universal service referred to in 3 of Article L. 35-1 or the components or one of the components described in 1° and 2° of the same article" and the words: "required services"
After the words: "calls for application for the provision of", the first paragraph of article R. 20-30-12 of the same code is thus written: "from the component of the universal service mentioned in the 3rd of article L. 35-1 or the components or one of the components described in the 1st and 2nd article".
After the article R. 20-30-12, an article R. 20-30-13 is inserted as follows:
"Art. R. 20-30-13. -The assignment of a portion of the local access network assets to a separate legal entity pursuant to Article L. 35-2-1 is considered to be substantial as long as it is likely to prevent the incumbent operator, pursuant to Article L. 35-2, from providing the component or elements of the universal service component referred to in 1° of Article L. 35-1 or the component of the universal service referred to in 3° of the competition.
"The assignment project is notified by the operator to the Minister responsible for electronic communications as well as to the Authority for the regulation of electronic communications and posts as soon as the assignee is in a position and no later than four months before the date envisaged for the taking of effect of the assignment. The operator shall provide them with all information to enable them to assess the effects of the proposed assignment on the provision of the component or elements of the universal service component referred to in 1° of Article L. 35-1 or the universal service component referred to in 3° of the same article. »
Section R. 20-35 is replaced by the following provisions:
"Art. R. 20-35.-Where the obligations relating to the public service under section R. 20-30-3 are met, the net cost of the obligation to provide service to the territory in telephone booths installed on the public domain or in other points of access to the public telephone service is assessed for each municipality of the territory by the difference between, on the one hand, the costs incurred by the operator Where these revenues are higher than costs, or where the number of public-sector cabins or other access points to the public telephone service in the municipality is greater than the number of cabins or other access points to the public telephone service as a result of universal service obligations, no compensation is payable.
"Each universal service operator shall provide the Electronic Communications and Post Control Authority with the elements to carry out the evaluation described in the preceding paragraph.
"Revenues included in this calculation include, in particular, an assignment to cabins or other access points for telephone service to the public of the following revenue:
"The sale of prepaid telephone cards, advertising on public cabins or on other access points to the public telephone service and prepaid telephone cards, as well as the revenues generated by other maps usable in telephone booths or in other access points to the public telephone service. This assignment is made prorated by the traffic of cabins or other access points to the telephone service to the public. »
Section R. 20-38 is replaced by the following provisions:
"Art. R. 20-38.-The net costs of the component of the universal service referred to in the 3rd of Article L. 35-1 or of the components or components of the components described in 1° and 2° of the same Article shall take into account, if any, the net cost of the offer referred to in the 4th of the same Article. »
Section R. 20-44-11 of the Post and Electronic Communications Code is amended as follows:
I. ― At 10°, the second sentence is deleted.
II. ― After 15°, it is inserted a 16° as follows:
« 16° It establishes and maintains the list of codes of identification of maritime accounting authorities registered in France or recognized by France that it notify the International Telecommunication Union in accordance with the provisions of the International Telecommunications Regulation. »
Article R. 20-44-18 of the same code is supplemented by a paragraph as follows:
"He can delegate his signature. »
Section R. 20-44-39 of the Post and Electronic Communications Code is repealed.
Before the last paragraph of article R. 20-44-40 of the same code, it is added a paragraph as follows:
"– justifies that it is not under control, in the sense ofArticle L. 233-3 of the Commercial Codethe registration office or a legal person exercising control over that office within the meaning of the same provisions. »
After Article 91 of Decree No. 2005-1309 of 20 October 2005, two articles were inserted:
"Art. 91-1.-The notification of a violation of personal data provided for in the first paragraph of Article 34 bis of the Act of 6 January 1978 referred to above shall be addressed to the National Commission of Computer Science and Freedoms by letter handed over against signature which specifies the nature and consequences of the violation of personal data, the measures already taken or proposed by the provider of electronic communications services accessible to the public to remedy it, and the persons to whom
"Art. 91-2.-The notification of a violation of personal data provided for in the second paragraph of Article 34 bis of the Act of 6 January 1978 shall be sent to the person concerned by any means enabling the provider of electronic communications services accessible to the public to demonstrate the performance of this formality. This notification specifies the nature of the violation of personal data, the persons with whom additional information may be obtained and the measures recommended by the supplier to take to mitigate the negative consequences of the violation.
"This notification is not necessary, however, if the National Commission on Informatics and Freedoms has found that the appropriate protection measures within the meaning of section 91-3 and on which it has pronounced itself under the conditions set out in sections 91-4 and 91-5 have been implemented by the supplier and effectively applied to the data concerned by this violation. »
After Chapter I of Title VI of the above-mentioned Decree of 20 October 2005, a chapter is inserted I bis entitled: "Information procedure on appropriate protection measures" in which articles 91-3 to 91-5 are inserted as follows:
"Art. 91-3.-Constitutes an appropriate protection measure, as defined in section 34 bis of the Act of 6 January 1978, any effective technical measure intended to render the data incomprehensible to any person who is not authorized to have access to it.
"Art. 91-4.-To inform the National Commission on Informatics and Freedoms of the protection measures that it has implemented and that it has applied in the particular case, the supplier shall, by any means permitting evidence of their notification, provide the following information:
« 1° Name, first name, address and telephone contact information of the controller;
« 2° Description of protection measures;
« 3° The provisions envisaged and implemented to give full effectiveness to these measures;
« 4° Where applicable, the references to the formalities file made with the commission prior to the implementation of the treatment;
« 5° Whether or not the formality of notification provided to the person interested in section 91-2 and, if not, the reasons justifying the absence of notification. »
"Art. 91-5.-The National Commission on Informatics and Freedoms shall verify within two months whether appropriate protection measures have been implemented and applied and appreciates the seriousness of the violation of personal data.
"The silence kept by the commission at the end of this period shall be deemed to be non-application in the particular case of appropriate protection measures and shall prevail for the supplier, if he has not already notified the interested person, the obligation to make the notification under section 91-2. This deadline only runs from the full receipt of the information provided in section 91-4. »
"If the supplier has not already notified the person concerned of the violation of this data pursuant to section 91-2, the Panel may also, when it considers the serious violation, keep the supplier informed under the last paragraph of section 34 bis of the Act of 6 January 1978 under a period not exceeding one month. »
Section D. 98-7 of the Post and Electronic Communications Code is amended as follows:
I. ― The III is thus amended:
1° The last sentence is deleted.
2° It is complemented by six sub-items:
"These means are implemented and implemented under the following conditions:
“They are established in the national territory;
"They are implemented in the national territory and cannot be implemented from a foreign country;
" – data generated by the systems used are encrypted by a means validated by the State when such data are to be transmitted electronically outside the national territory;
“– only qualified officers mentioned in the first paragraph of this III may use and control systems used for electronic communications interceptions, access data generated by these systems and communicate them to authorized applicants.
"On an exceptional basis, it may be derogated from these conditions during the validation by the Minister responsible for electronic communications of the choices made by the operator under the IV after having collected the opinion of the Electronic Communications Regulatory Authority and the National Agency for the Safety of Information Systems when technical obstacles justify it or when the costs to be exposed to these conditions are disproportionate to the number of interceptions that may be required. »
II. ― In the fifth paragraph of the IV, the words "a and b" are replaced by the words "a, b and c".
The 3rd of Article 1 of the above-mentioned Decree of 25 February 2011 is replaced by the following provisions:
“(g) Data to verify or modify the password in their latest updated version; "
The Electronic Communications and Post Regulatory Authority shall promptly inform the Minister responsible for electronic communications of the receipt of a request for review under the II of section 59 of Order No. 2011-1012 of 24 August 2011 on electronic communications.
Within eight months of receipt of this application, the Authority shall notify the applicant of the conclusion of its review and, where applicable, of the new conditions of authorization that it envisages for the use of frequencies. In the month following this notification, the applicant may withdraw its application, in which case its authorization remains unchanged. Otherwise, the Authority shall notify the Authority of the new authorization to use radio frequencies.
The provisions set out in the fifth paragraph of Article D. 98-7 of the Posts and Electronic Communications Code in its drafting pursuant to Article 27 of this Decree shall apply effective 1 July 2012.
The III and IV of Article D. 98-7 of the Post and Electronic Communications Code in its drafting of Article 27 of this Decree may be amended by decree.
Articles 21, 22, 25 to 27 and 30 of this Decree are applicable in New Caledonia, French Polynesia, Wallis and Futuna Islands and French Southern and Antarctic Lands.
Article 28 of this Decree is applicable in New Caledonia, French Polynesia and the Wallis and Futuna Islands.
Articles 23 and 24 of this Decree are applicable in the Wallis and Futuna Islands and in the French Southern and Antarctic Lands.
The Minister of Economy, Finance and Industry and the Minister to the Minister of Economy, Finance and Industry, responsible for industry, energy and the digital economy, are responsible, each with respect to it, for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done on 30 March 2012.
François Fillon
By the Prime Minister:
Minister to the Minister of Economy,
finance and industry,
responsible for the industry,
energy and the digital economy,
Eric Besson
Minister of Economy,
finance and industry,
François Baroin
