Key Benefits:
Public concerned: Electronic Communications and Post Regulatory Authority; Network Operators and Electronic Communications Service Providers; Postal Service Providers.
Subject: A sanction procedure of the Autorité de régulation des communications électronique et des postes; modalities de mise en œuvre.
Entry into force: the text comes into force on the day after its publication.
Notice: This decree sets out the conditions for the implementation of its sanctioning power by the Autorité de régulation des communications électronique et des postes à l' encontre des entreprises opérationnellesnt dans le secteur des postes et des communications électronique. It sets out the conditions under which the formation of dispute settlement, prosecution and instruction of the Authority conducts pre-trial investigation and decides to institute proceedings when the person in question fails to comply with them in a timely manner. The decree also sets out the organization and operation of the limited training called to impose sanctions, and in particular the conduct of hearings before it.
References: the Post and electronic communications code Amended by this decree is available in the version resulting from this amendment on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy, Productive Recovery and Digital,
Having regard to Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorization of electronic communications networks and services (Directive "authorisation"), as amended by Directive 2009/140/EC of the European Parliament and the Council of 25 November 2009, in particular its Article 10;
Vu le Post and electronic communications codeincluding articles L. 5-3, L. 36-11 and L. 130;
See?Order No. 2014-329 of 12 March 2014 relating to the digital economy, including articles 2 to 4;
Vu le Decree No. 2014-90 of 31 January 2014 carrying application of theArticle 2 of Act No. 2013-907 of 11 October 2013 on the transparency of public life;
Considering the opinion of the Electronic Communications and Post Regulatory Authority dated 15 July 2014,
Decrete:
Book IV of the Posts and Communications and Electronics Code is supplemented by a chapter IV entitled "The Authorization Procedure of the Electronic Communications and Posts Regulatory Authority" which includes articles D. 594 to D. 599 as follows:
“Chapter IV
"Legislative procedure of the Electronic Communications and Post Regulatory Authority
"Art. D. 594.-Where the Authority takes office or considers that it is necessary to follow up on the application for a sanction that it has been seized under the first paragraph of articles L. 5-3 or L. 36-11, it shall notify the decision to open a pre-trial investigation to the person in question and shall designate, among the agents of the services, a rapporteur and an assistant rapporteur.
"The rapporteur or his deputy shall conduct the pre-trial instruction with the assistance of the agents of the services of the Authority. He or she may hear, if he or she considers it necessary, the person in question who may be assisted or represented by any person of his or her choice, as well as any other person who may contribute to his or her information. The hearings give rise to the establishment of a report signed by the persons heard and the rapporteurs. In case of refusal to sign, reference is made in the minutes. A copy of the minutes is provided to the interested parties.
"The rapporteur sets the deadlines and conditions in which the documents or information he requests are produced. They are transmitted by registered letter with notice of receipt or by any means to attest to the date of receipt and the identity of the recipient, including electronically.
"The rapporteur or his deputy prepares a report of pre-remaining instruction.
"He shall forward the instruction file, including the report referred to in the preceding paragraph, to the formation of dispute settlement, prosecution and instruction of the Authority.
"Art. D. 595.-I.-In the light of the instruction file, the Authority, after having deliberated in the formation of dispute resolution, prosecution and instruction, may put the person in question in place:
« 1° In the event of a breach of the provisions referred to in Article L. 5-3, within a period not less than one month, except in the event of a serious and repeated breach;
« 2° In the event of a breach of the provisions referred to in Article L. 36-11, within a time limit it determines.
"Continuing the facts and recalls the rules applicable to the person in question. It refers to remedies and deadlines for appeal.
"II.-Where the person in question fails to comply with the deadlines set out in the detention or the intermediary obligations of the person in question, the Authority may, in particular in the light of an instruction conducted by the rapporteurs under the same conditions as those defined in section D. 594, after having deliberated in the form of dispute resolution, prosecution and instruction, notify the person of the grievances and the penalties incurred.
"The formation of dispute resolution, prosecution and instruction of the Authority shall transmit the instruction file as well as the notification of grievances to restricted training.
"III.-When the formation of dispute resolution, prosecution and instruction decides, in the light of the instruction, that there is no need to address a stay or report grievances, it shall notify the person in question, and, where appropriate, the applicant of the request referred to in the first paragraph of section D. 594, in accordance with the secrets protected by the law.
"Art. D. 596.-Restricted training refers to a president for each procedure before it.
"Restricted training sets the time and conditions in which the person in question, who may be assisted or represented by the person of his or her choice, may consult the instruction file and take a copy of the documents. It also sets out the time available to the person in question to provide the person with his written comments. The deadlines mentioned in this paragraph may not be less than 10 days.
"The person in question shall transmit his or her written comments by registered letter with notice of receipt or by any means to attest to the date of receipt, including electronically.
"These observations are communicated to the formation of dispute settlement, prosecution and instruction of the Authority.
"Restricted training may, at any time, request the person in question to provide the information necessary to calculate the possible sanction.
"Art. O.C. 597.-I.-A. at the request of the President of the restricted training, a meeting secretary shall be appointed from among the agents of the services of the Authority who have not participated in the preparation of the acts of prosecution and instruction to attend the restricted training. Other officials who have not participated in the preparation of prosecution and instruction may be designated, as necessary, to attend restricted training. Restricted training officers are the sole authority of the President of the restricted training in these functions.
"II.-Restricted training refers to a hearing, at least twenty days before the scheduled date, the person involved.
"The convocation to the hearing refers to the ability to be heard and to be assisted or represented by the person of his or her choice.
"The president of restricted training may, on his or her own behalf or at the request of the person in question, restrict the advertising of the hearing in the interests of public order, or where the protection of secrets protected by law requires it.
"III.-At the hearing, the person in question and, where appropriate, the person who is the person or represents the person, are invited to provide oral comments in support of their written submissions and to answer questions from members of the restricted training. Where applicable, they may provide additional written comments within a reasonable time frame established during the hearing by restricted training.
"A representative of the training in dispute resolution, prosecution and instruction is invited to present oral comments and answer questions of limited training. Restricted training can also hear any person whose hearing is useful to him.
"Art. O.C. 598.-The restricted training shall rule in the presence of its members, the sitting secretary and, if any, other officers designated to assist him, pursuant to section D. 597. Only members of restricted training take part in the deliberations.
"The member of the restricted training, who assumes in his person a cause of recusal or believes in conscience to abstain, waives himself to sit in accordance with Chapter I of Decree No. 2014-90 of 31 January 2014 implementing theArticle 2 of Act No. 2013-907 of 11 October 2013 on transparency of public life.
"The decision of the restricted training is signed by the president and mentions the names of the members who have served. It is motivated, notified and includes remedies and deadlines.
"The author of the application referred to in the first paragraph of Article D. 594 is informed of the decision of the restricted training, in accordance with the secrets protected by law.
"Art. D. 599.-The notification of an act relating to the sanction procedure shall be carried out by registered letter with notice of receipt or by any other means to attest to their date of receipt, including electronically.
"The advertisement of an act relating to the sanctioning procedure may take place after that act has been notified to the person in question and has been able to request the protection of the secrets protected by law.
"This request must be sent to the Authority or to limited training, if any, jointly with the requested documents or information and, for each information, document or part of the document in question, the subject matter and the reasons for its application. A person who requests the protection of the confidentiality of cases in respect of all or part of the material communicated by the person or on the record shall separately provide a non-confidential version by registered letter with notice of receipt or by any other means to attest to their date of receipt, including electronically. The information, documents or parts of documents for which an application for protection under the secrecy of cases has not been filed are deemed not to involve the confidentiality of cases. »
The Minister of Economy, Production Recovery and Digital Affairs and the State Secretary for Digital Affairs are responsible, each with regard to the execution of this decree, which will be published in the Official Journal of the French Republic.
Done on August 1, 2014.
Manuel Valls
By the Prime Minister:
Minister of Economy, Production Recovery and Digital,
Arnaud Montebourg
The State Secretary for Digital,
Axelle Lemaire
