S.I. No. 307/2003 - European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2003

I, Dermot Ahern, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive No. 2002/21/EC of the European Parliament and of the Council of 7 March 2002,¹ hereby make the following regulations:

Part 1 Preliminary

Citation and commencement

1.

• (2) These Regulations come into operation on 25 July 2003.

Interpretation

2.

“Access Directive” means Directive 2002/19/EC² of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of electronic communications networks and associated facilities;

“Access Regulations” means the European Communities (Electronic Communications)(Access) Regulations 2003 ( S.I. No. 305 of 2003 );

“Act of 2002” means the Communications Regulation Act 2002 (No. 20 of 2002);

“application program interface (API)” means the software interfaces between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital television and radio services;

“associated facilities” means those facilities associated with an electronic communications network, an electronic communications service or both such network and service which enable, support or both enable and support the provision of services via that network or service and includes conditional access systems and electronic programme guides;

“Authorisation Directive” means Directive 2002/20/EC³ of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services;

“Authorisation Regulations” means the European Communities (Electronic Communications)(Authorisation) Regulations, 2003 ( S.I. No. 306 of 2003 );

“conditional access system” means any technical measure, arrangement or both such measure and arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or other form of prior individual authorisation;

“consumer” means any natural person who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business or profession;

“Data Protection Directive” means Directive 2002/58/EC⁴ of the European Parliament and the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector;

“electronic communications network” means transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

“electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but excludes —

• (a) a service providing, or exercising editorial control over, content transmitted using electronic communications networks and services and

• (b) an information society service, as defined in Article 1 of Directive 98/34/EC, which does not consist wholly or mainly in the conveyance of signals on electronic communications networks;

“electronic programme guide” means any electronic means of providing information to the public in relation to the schedule of programme material the subject of any broadcasting service and which electronic means is an integral part of the distribution and reception system by which the broadcasting service is provided;

“end-user” means a user not providing public communications networks or publicly available electronic communications services;

“enhanced digital television equipment” means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services;

“European Commission” means the Commission of the European Communities;

“European Standards Organisations” means the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (CENELEC), and the European Telecommunications Standards Institute (ETSI);

“Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002¹ on a common regulatory framework for electronic communications networks and services;

“function” includes powers and duties and references to the performance of functions include, with respect to powers and duties, references to the exercise of powers and the carrying out of duties;

“Member State” means a member State of the European Community;

“Minister” means the Minister for Communications, Marine and Natural Resources;

“national numbering scheme” means the scheme administered by the Regulator and which sets out the sequence of numbers which must be used to route communications to specific locations, terminals, persons or functions on public electronic communications networks;

“national regulatory authority” in relation to another Member State, means the body or bodies charged by another Member State with any of the regulatory tasks assigned in the Framework Directive and the Specific Directives;

“number” includes a character and a combination of numbers or characters or both;

“provision of an electronic communications network” means the establishment, operation, control or making available of such a network;

“public communications network” means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services;

“Regulator” means the Commission for Communications Regulation;

“relevant market” means a product or service market defined by the Regulator in accordance with Regulation 26 or referred to in Regulation 20(5)(a) and adopted in accordance with Regulation 20(7);

“Specific Directives” means the Authorisation Directive, the Access Directive the Universal Service Directive and the Data Protection Directive;

“specific obligations” means obligations that may be imposed by the Regulator on an undertaking under Regulations 6(1), 6(2), 6(3), 7 and 9 of the Access Regulations and Regulations 13, 14, 15 and 16 of the Universal Service Regulations, and on those designated under Regulation 7 of the Universal Service Regulations to carry out the obligations referred to in that Regulation;

“Specific Regulations” means these Regulations, the Authorisation Regulations, the Access Regulations, the Universal Service Regulations and the European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002 ( S.I. No. 192 of 2002 );

“subscriber” means any natural person or legal entity who or which is party to a contract with a provider of publicly available electronic communications services for the supply of such services;

“transnational market” means a market identified in accordance with Article 15(4) of the Framework Directive covering the Community or a substantial part thereof;

“undertaking” means a person engaged or intending to engage in the provision of electronic communications networks or services or associated facilities;

“universal service” means the minimum set of services, defined in the Universal Service Directive, of specified quality, which is available to all users regardless of their geographical location and, in the light of specific national conditions, at an affordable price;

“Universal Service Directive” means Directive 2002/22/EC⁵ of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services;

“Universal Service Regulations” means the European Communities (Electronic Communications)(Universal Service and Users' Rights Regulations 2003 ( S.I. No. 308 of 2003 );

“user” means a legal entity or natural person using or requesting a publicly available electronic communications service.

• (2) A word or expression which is used in these Regulations and which is also used in the Framework Directives has, unless the context otherwise requires, the same meaning in these Regulations that it has in the Framework Directive.

• (3) In these Regulations, unless the contrary intention appears —

• (a) a reference to a regulation or Schedule is a reference to a Regulation of or Schedule to these Regulations, and

• (b) a reference to a paragraph or a subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs.

• (4) In these Regulations, a reference to an enactment or Regulations is to be construed as a reference to the enactment or Regulations as amended by any subsequent enactment or Regulations, including these Regulations.

Part 2 Appeals

Application for appeal against decision of Regulator

3 (1) This Regulation applies to any user or any undertaking that is affected by a decision, designation, determination, specification, requirement direction or any other act of an equivalent nature of the Regulator under these Regulations, the Specific Regulations or Regulation (EC No. 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop⁶ , other than a notification under Regulation 35, a notification or direction under Regulation 18 of the Access Regulations, Regulation 16 of the Authorisation Regulations or Regulation 32 of the Universal Service Regulations, or a notice under section 44 of the Act of 2002 (in this Part referred to as a “decision”).

• (2) No appeal lies against a decision other than under this Regulation.

• (3) A person to whom this Regulation applies may, if aggrieved by a decision, within 28 days of the decision, notify the Minister and the Regulator in writing of his or her intention to appeal the decision and of the grounds of the appeal.

• (4) An appeal notification shall—

• (a) be made in writing,

• (b) state the name and address of the appellant and of the person, if any, acting on his or her behalf,

• (c) state the subject matter of the appeal, including the Regulator's decision or the part of the Regulator's decision to which the appeal refers,

• (d) state in full the grounds of appeal and the reasons, considerations and arguments on which they are based, and

• (e) be made within the period specified under paragraph (3) for making the appeal.

• (5) Grounds of appeal may plead that the decision is vitiated by errors of fact, including inferences of fact and or errors of law, including issues of jurisdiction and procedure.

• (6) An appeal notification which does not comply with the requirements of paragraph (4) is invalid.

Establishment of Appeal Panel

• (a) establish one or more panels to hear appeals, to be known as an Electronic Communications Appeal Panel, and in these Regulations referred to, as an “Appeal Panel” or

• (b) refer the appeal to an Appeal Panel already established under this paragraph,

to hear and determine the appeal.

• (2) In the event that court proceedings relevant to the subject matter of the appeal are initiated by any party, the Minister may decide not to establish an Appeal Panel or refer an appeal to an Appeal Panel already established pending the determination of such proceedings.

• (3) The Minister may make available to an Appeal Panel such staff premises, equipment, services and other resources as the Minister considers necessary to enable the Panel to perform its functions, after consultation with the Minister for Finance.

Appointment of Appeal Panel and removal of member

5 (1) An Appeal Panel shall consist of 3 persons appointed by the Minister at least one of whom shall be a practising barrister or solicitor with at least 7 years experience and the others shall have such commercial technical, economic, regulatory or financial experience as the Minister considers appropriate.

• (2) The Minister shall nominate one member of the Appeal Panel to be the chairperson of that Appeal Panel.

• (3) Where the Minister considers it appropriate in all the circumstances, an Appeal Panel may hear and determine more than one appeal.

• (4) Any member of an Appeal Panel may be a member of more than one Appeal Panel at any given time

• (5) A person is not eligible for appointment as a member of an appeal panel if the person—

• (a) is a member of either House of the Oireachtas or is, with the person's consent, nominated as a candidate for election as such a member or is nominated as a member of Seanad Eireann,

• (b) is a member of the European Parliament or is, with the person's consent, nominated as a candidate for election as such a member or to fill a vacancy in the membership of that Parliament, or

• (a) is a member of a local authority (within the meaning of the Local Government Act 2001 ) or is, with the person's consent nominated as a candidate for election as such a member.

• (6) A member of an Appeal Panel may be removed from the Panel by the Minister —

• (a) if, in his or her opinion the member has become incapable through ill health of effectively performing his or her duties, or

• (b) for stated misbehaviour.

• (7) In removing a member of an Appeal Panel, the Minister shall give a statement of the reason or reasons for the removal to the member. The statement of reasons shall be laid before each House of the Oireachtas.

Disclosure of interests of Appeal Panel member

6 (1) If a person is, or is to be, a member of an Appeal Panel as constituted under Regulation 4(1) and the person has or acquires an interest (pecuniary or otherwise) that could conflict with the proper performance of the person's functions in relation to an appeal, the person —

• (a) shall disclose the nature of the interest to the Minister and

• (b) may not, without the consent of the appellant and the Regulator, take part in the appeal, or exercise any powers in relation to the making by that Panel of the determination to which the appeal relates.

• (2) If the Minister becomes aware that a person who is a member of an Appeals Panel has in relation to the appeal an interest referred to in paragraph (1), the Minister shall arrange for the person's interest to be disclosed to the parties to the appeal where the interest has not already been disclosed under paragraph (1)

• (3) Where either the appellant or the Regulator or both do not give a consent under paragraph (1)(b) within such period as may be specified by the Minister, the Minister shall make a substitute appointment to the Appeal Panel.

Reconstitution of Appeal Panel

7 (1) The Minister may replace a member of an Appeal Panel during the hearing of an appeal if the member becomes mentally or physically incapacitated or otherwise becomes unavailable, or ceases to be a member, before the appeal is determined, but only if the parties agree.

• (2) Where an Appeal Panel is reconstituted under paragraph (1) or Regulation 6(3), the Appeal Panel is to have regard to the evidence in relation to the appeal that was given before it was reconstituted.

• (3) An Appeal Panel may, if it considers it appropriate having regard to the reconstitution of the Appeal Panel under this Regulation, rehear the appeal.

• (4) Where an appeal is reheard under paragraph (3), an Appeal Panel may have regard to any record of the proceedings of the appeal before the Panel as previously constituted, including a record of any evidence taken in those proceedings.

Functions and procedure of Appeal Panel

8 (1) An Appeal Panel shall, in accordance with these Regulations, hear and determine an appeal against a decision.

• (2) An Appeal Panel shall be independent in the performance of its functions.

• (3) An Appeal Panel may, subject to these Regulations, determine its own procedure.

• (4) An Appeal Panel shall ensure that each party to an appeal is given a reasonable opportunity—

• (a) to present the party's case (whether at a hearing or otherwise) and

• (b) to make submissions in relation to the issues arising in the proceedings.

• (5) A party to an appeal may—

• (a) appear without representation, or

• (b) be represented by an agent.

• (6) An Appeal Panel is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit subject to the rules of natural justice.

• (7) An Appeal Panel is required to act with as little formality as the circumstances of the case permit and according to natural justice and the substantive merits of the case without regard to technicalities or legal forms.

• (8) An Appeal Panel is required to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions in relation to the appeal considered.

• (9) In relation to an appeal before it, an Appeal Panel is required to act as expeditiously as is practicable and to ensure that all relevant material is disclosed to that Panel so as to enable it to determine all of the relevant facts in issue in the case.

• (10) An Appeal Panel may do all or any of the following:

• (a) require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument,

• (b) require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases,

• (c) adjourn proceedings to any time and place, or

• (d) at any stage dismiss proceedings if the applicant has withdrawn the application to which the proceedings relate.

• (11) A witness before an Appeal Panel is entitled to the same immunities and privileges as if he or she were a witness before the High Court.

Dismissal of appeal and remittal of decision to Regulator

9 (1) An Appeal Panel shall have an absolute discretion to dismiss an appeal—

• (a) where, having considered the grounds of appeal, the Appeal Panel is of the opinion that the appeal is vexatious, frivolous or without substance or foundation, or

• (b) where, the Appeal Panel is satisfied that, in the particular circumstances, the appeal should not be further considered by it having regard to—

• (i) the nature of the appeal (including any question which in the Appeal Panel's opinion is raised by the appeal),

• (ii) any previous decision which in its opinion is relevant, or

• (iii) the existence of any court proceedings relevant to the subject matter of the appeal.

• (2) A dismissal under this Regulation shall state the main reasons and considerations on which the decision to dismiss the appeal is based.

• (3) At any stage of proceedings to determine an appeal, an Appeal Panel may, if it is satisfied that the appeal may be resolved by curing a technical defect in the appealed decision, the Appeal Panel may direct the Regulator to amend its decision. The Regulator shall amend the decision according to the direction of the Appeal Panel.

Submission of observations by other parties to Appeal Panel

10 (1) An Appeal Panel shall, as soon as may be after referral of an appeal to it, give a copy thereof to any party other than the appellant and the Regulator which it considers to have an interest in the appeal.

• (2) A party to which paragraph (1) applies may make submissions or observations in writing to the Appeal Panel in relation to the appeal within a period specified by the Appeal Panel.

• (3) Any submissions or observations received by the Appeal Panel after the expiration of the period referred to in paragraph (2) shall not be considered by the Appeal Panel.

Powers of Appeal Panel

11 (1) An Appeal Panel may, by summons, —

• (a) enforce the attendance of witnesses,

• (b) examine witnesses on oath or otherwise, and

• (c) compel the production of documents.

• (2) A summons signed by the chairperson of the Appeal Panel or such other member of the Appeal Panel as may be authorised by the Appeal Panel may be substituted for and is equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents.

• (3) Where a person —

• (a) being duly summoned to attend before an Appeal Panel, fails to attend before it,

• (b) being in attendance as a witness before an Appeal Panel —

• (i) refuses to take an oath required by the Appeal Panel to be taken,

• (ii) fails to produce any document in his or her power or control required by the Appeal Panel to be produced by him or her, or

• (iii) fails to answer any question to which the Appeal Panel may lawfully require an answer, or

• (c) being in attendance before an Appeal Panel does anything which if the Appeal Panel were a court of law having power to commit for contempt, would be contempt of court,

the person is guilty of an offence.

Determination of appeals

12 (1) An Appeal Panel shall, as far as is practicable in the circumstances endeavour to determine an appeal within 4 months of the date of establishment of the Appeal Panel or from the date upon which an appeal was referred to an Appeal Panel, as the case may be.

• (2) If the members are not in unanimous agreement on a matter to be determined in proceedings before an Appeals Panel, the decision of the majority on the matter is the determination of that Panel.

• (3) Upon the hearing of an appeal, the Appeal Panel may confirm or annul in whole or in part, the determination and shall notify its determination in accordance with Regulation 13.

Notification of determination by Appeal Panel

13 (1) An Appeal Panel shall notify the parties to an appeal of its determination in relation to the appeal and shall, as soon as practicable thereafter, cause such determination to be published in such manner as may be decided by the Appeal Panel.

• (2) A determination must set out—

• (a) any findings on material questions of fact, referring to the evidence or other material on which those findings were based and

• (b) the Appeals Panel's understanding of the applicable law, and

• (c) the reasoning processes that led that Panel to the conclusions that it made.

• (3) An Appeal Panel shall ensure that a copy of its determination on an appeal is served on each party to the proceedings.

• (4) A determination of an Appeal Panel shall be final and conclusive.

• (5) Where a decision of the Regulator has been suspended under Regulation 16(2) and an Appeal Panel confirms the decision, the Regulator shall implement the decision in accordance with the determination of the Appeal Panel

• (6) Where an Appeal Panel annuls a decision of the Regulator which has not been suspended under Regulation 16(2), the Regulator shall rescind the decision with immediate effect.

Expenses of Appeal Panel and orders as to costs

14 (1) The remuneration and allowances for expenses, if any, of a member of an Appeal Panel shall be such as may be determined by the Minister with the approval of the Minister of Finance.

• (2) Where an Appeal Panel is of opinion that, having regard to its determination of the appeal and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the Appeal Panel may, either of its own motion or on application by any person appearing before the Appeal Panel, order that the whole or part of the costs —

• (a) of any person appearing before the Appeal Panel by counsel or solicitor shall be paid to the person by any other person named in the order, or

• (b) incurred by the Appeal Panel shall be paid to the Minister for Finance by any other person named in the order.

• (3) Any sum payable pursuant to an order under paragraph (2) is recoverable as a simple contract debt in any court of competent jurisdiction.

• (4) To the extent that any expenses under paragraph (1) or Regulation 4(3 are not included in an order of an Appeal Panel as to costs, such expenses may be included in a levy under section 30(1) (as amended by Regulation 19 of the Authorisation Regulations) of the Act of 2002.

• (5) A remittal of a decision under Regulation 9(3) is deemed to be a determination of an Appeal Panel under this Part.

Service and lodgement of documents relating to appeals

15 (1) For the purposes of this Part, lodgment of a notice or document may be given to a person (or a notice or document may be served on a person)—

• (a) in the case of a natural person, by—

• (i) delivering it to the person personally, or

• (ii) leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document,

• (b) in the case of a body corporate by leaving it at, or by sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate,

• (c) in the case of the Regulator by leaving it with, or by sending it by prepaid post to, the chairperson, a Commissioner, or a member of staff, of the Regulator, or

• (d) in any case where the Appeal Panel considers that the immediate giving of the notice or document is required, by sending it, by means of a facsimile machine or by electronic mail, to a device or facility for the reception of facsimiles or electronic mail located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the direction or the sender's facility for the reception of electronic mail generates a message confirming receipt of the electronic mail.

• (2) Nothing in this Regulation affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this Regulation.

Decision of Regulator stands pending appeal

16 (1) Subject to paragraph (2), pending the outcome of an appeal under Regulation 3, a decision of the Regulator stands.

• (2) An Appeal Panel may, on the application to it by the appellant in an appeal under Regulation 3, and taking into account any submission made by any other interested party in relation to such application suspend the decision of the Regulator pending the determination of the appeal, where it considers it appropriate to do so.

• (3) An Appeal Panel may impose such conditions as it sees fit on a suspension of a decision under paragraph (2).

Part 3 Information

Provision of information

• (2) Any information sought by the Regulator under paragraph (1) shall be proportionate to the performance by it of the task of monitoring compliance and the Regulator shall give reasons justifying its requirement for the information, including a statement as to which of the Regulator's statutory duties gives rise to the request.

• (3) An undertaking upon which a requirement is served pursuant to paragraph (1) shall comply with the requirement.

• (4) Any undertaking which fails or refuses to comply with a requirement under paragraph (1) is guilty of an offence.

• (5) Upon receipt of a reasoned request from the European Commission the Regulator shall, subject to this Regulation, provide the European Commission with such information as is necessary for the European Commission to carry out its tasks under the Treaty establishing the European Community.

• (6) Where any information requested by the European Commission under this Regulation has been obtained by the Regulator pursuant to a requirement under paragraph (1) or under section 39 of the Act of 2002, the Regulator shall notify in writing the undertaking which provided that information that the Regulator has been requested to provide the information to the European Commission and that the European Commission is entitled to pass such information on to national regulatory authorities in other Member States unless the Regulator makes an explicit and reasoned request to the contrary. In the case of information expressed to be confidential by the undertaking which provided it, the Regulator shall delay provision of the information to the European Commission to enable the undertaking which provided the information concerned to make written representations to the Regulator within 7 days of the notification from the Regulator referred to in this paragraph.

• (7) The Regulator may, taking into account any representations expressed to it under paragraph (6) but at its sole discretion, make an explicit and reasoned request to the European Commission not to make any information provided under paragraph (5) available to a national regulatory authority in another Member State.

• (8) The Regulator may make information submitted to it pursuant to paragraph (1) available to a national regulatory authority in another Member State, after a substantiated request, where the Regulator is satisfied that provision of such information is necessary to allow that national regulatory authority to fulfil its responsibilities under European Community law.

• (9) Where the Regulator considers information to be made available under paragraph (8) is confidential the Regulator shall identify such information accordingly.

• (10) Where the Regulator receives information classified as confidential from the European Commission or from a national regulatory authority of another Member State pursuant to Article 5 of the Framework Directive and the Regulator is satisfied that such information is so classified in accordance with rules of business confidentiality of the European Community or of the Member State from which the information originated, as the case may be, it shall protect the confidentiality of such information. The Freedom of Information Acts 1997 and 2003 do not apply to such information.

• (11) The Regulator shall, subject to the protection of the confidentiality of any information which it considers to be confidential, publish from time to time such information as would, in the opinion of the Regulator, contribute to an open and competitive market.

Cooperation with Director of Consumer Affairs

• (2) The Regulator and the Director of Consumer Affairs shall, subject to the Freedom of Information Acts 1997 and 2003, maintain and accept as confidential any information provided under paragraph (1) by an undertaking providing electronic communications networks or services expressed by it to be confidential, except where the Regulator and the Director of Consumer Affairs have good reason to consider otherwise.

Consultation and transparency mechanism

• (2) Except in cases falling within Regulations 20(8), where the Regulator intends to take a measure in accordance with these Regulations or the Specific Regulations which has a significant impact on a market for electronic communications networks or services, it shall observe the procedures referred to in paragraphs (3) and (4)

• (3) Before taking a measure under paragraph (2) the Regulator shall publish the text of the proposed measure, give the reasons for it including information as to which of the Regulator's statutory powers gives rise to the measure, and specify the period within which submissions relating to the proposal may be made by interested parties.

• (4) The Regulator, having taken into account any representations made under paragraph (3) may take the measure with or without amendment.

• (5) The Regulator shall publish its consultation procedures and shall establish a single information point through which all current consultations can be accessed.

• (6) The results of any consultation under this Regulation shall be made publicly available by the Regulator, except in the case of confidential information.

Consolidating the internal market for electronic communications

• (2) For the purposes of paragraph (1), the Regulator shall, in conjunction with national regulatory authorities in other Member States, seek taking utmost account of its objectives under section 12 of the Act of 2002 and its functions under these Regulations and the Specific Regulations, to agree on the types of instruments and remedies best suited to address particular types of situations in the market place.

• (3) Where the Regulator intends to take a measure which —

• (a) falls within the scope of Regulation 26 or 27, Regulation 6 or 9 of the Access Regulations or Regulation 14, 15 or 16 of the Universal Service Regulations, and

• (b) would affect trade between Member States,

the Regulator shall at the same time make the draft measure accessible to the European Commission and the national regulatory authorities in other Member States together with the reasoning on which the measure is based, and inform the European Commission and national regulatory authorities in other Member States thereof.

• (4) Before taking a measure referred to in paragraph (3), the Regulator shall take into account any comments made by a national regulatory authority in another Member State or the European Commission and received by the Regulator within one month of so making the draft measure accessible.

• (5) Where a draft measure referred to in paragraph (3) consists of —

• (a) a proposed definition of a relevant market which differs from any defined in a recommendation referred to in Article 15(1) of the Framework Directive, or

• (b) a proposed decision whether or not to designate an undertaking as having, either individually or jointly with others, significant market power under Regulation 27 (3), (4) or (5),

and would affect trade between Member States and the European Commission has indicated to the Regulator that it considers the draft measure would create a barrier to the single market or that it has serious doubts as to its compatibility with European Community law and, in particular, the objectives referred to in Article 8 of the Framework Directive, then the draft measure shall not be adopted for a further two months.

• (6) The Regulator shall refrain from proceeding with the draft measure if the European Commission takes a decision in accordance with the procedure referred to in Article 22(2) of the Framework Directive requiring the Regulator to withdraw the draft measure.

• (7) The Regulator shall take the utmost account of any comments of a national regulatory authority in another Member State and of the European Commission received in response to a consultation referred to in paragraph (3) and may, except in cases covered by paragraph (6) adopt the resulting draft measure with or without amendment and where it does so adopt such measure, shall communicate it to the European Commission.

• (8) Where the Regulator considers that there are exceptional circumstances justifying an urgent need to act, by way of derogation from the procedures set out in paragraphs (3), (4), (5) and (6) in order to safeguard competition and protect the interests of users, it may immediately adopt a proportionate measure on a provisional basis.

• (9) Where the Regulator acts in accordance with paragraph (8) it shall without delay, notify the measure concerned, with full reasons for its adoption, to the European Commission, the national regulatory authorities in the other Member States and the undertaking to which the measure concerned is addressed.

• (10) A decision by the Regulator to render a measure referred to in paragraph (8) permanent or extend the time for which they are applicable is subject to paragraph (3), (4), (5) and (6).

Confidentiality of information

Part 4 Tasks of Regulator and Obligations of Undertakings

Numbers

22 (1) The national numbering scheme shall be administered by the Regulator subject to directions that may be issued by the Minister pursuant to section 13 of the Act of 2002.

• (2) Any person who assigns to locations, terminals, persons or functions on public communications networks numbers from the national numbering scheme that have not specifically been allocated to that person by the Regulator for the purpose of providing publicly available electronic communications services is guilty of an offence.

• (3) The Regulator shall, subject to ensuring the proper management of the national numbering scheme, grant rights of use for numbers and number ranges for all publicly available electronic communications services in a manner that gives fair and equitable treatment to all undertakings providing publicly available electronic communications services.

• (4) The Regulator may, without prejudice to the generality of Regulation 14(1) of the Authorisation Regulations, attach conditions to rights of use for numbers —

• (a) to ensure efficient and effective management of all numbering resources,

• (b) to ensure that an undertaking allocated a range of numbers does not discriminate against other undertakings as regards the number sequences used to give access to their services.

• (5) The Regulator shall, subject only to limitations which may by specified by the Minister on the grounds of national security, from time to time publish the details of the national numbering scheme, and significant subsequent additions or amendments thereto.

• (6) The Regulator shall, in so far as is practicable, having regard to its objectives under section 12 of the Act of 2002 and its functions under these Regulations and the Specific Regulations, support the harmonisation of numbering resources within the Community where that is necessary to support the development of pan-European services.

Radio frequencies

23 (1) The Regulator shall, subject to any directions issued by the Minister pursuant to section 13 of the Act of 2002, ensure the effective management of radio frequencies for electronic communications services in accordance with section 12 of the Act of 2002 and ensure that the allocation and assignment of such radio frequencies is based on objective, transparent, non-discriminatory and proportionate criteria.

• (2) The Regulator shall, having regard to its objectives under section 12 of the Act of 2002 and its functions under these Regulations and the Specific Regulations, promote the harmonisation of use of radio frequencies across the European Community, consistent with the need to ensure effective and efficient use thereof in accordance with Decision No. 676/2002/EC⁷ of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community.

Accounting separation and financial reports

24 (1) An undertaking providing a public communications network or a publicly available electronic communications service, that is also engaged in an activity other than the provision of such network or service on the basis of special or exclusive rights for the provision of that activity whether in the State or in another Member State shall —

• (a) keep separate accounts audited in accordance with generally accepted auditing practices for the activities associated with the provision of that network or service, to the extent that would be required if those activities were carried out by one or more legally independent companies, so as to identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to its activities associated with the provision of electronic communications networks or services including an itemised breakdown of fixed asset and structural costs, or

• (b) have structural separation for the activities associated with the provision of electronic communications networks or services.

• (2) Where an undertaking providing a public communications network or a publicly available electronic communications service is not subject to the Companies Acts 1963 to 2001 and does not satisfy the small and medium - sized enterprise criteria of European Community law accounting rules, it shall ensure that —

• (a) annual accounts are drawn up, submitted to independent audit and published, and

• (b) such audit is carried out in accordance with generally accepted auditing practices.

• (3) An undertaking which fails to comply with an obligation under this Regulation is guilty of an offence.

Undertakings with significant market power

25 (1) A reference in the these Regulations, the Access Regulations, the Authorisation Regulations or the Universal Service Regulations to an undertaking with significant market power is to an undertaking designated as such by the Regulator under Regulation 27(4) where the Regulator is satisfied that, in relation to any relevant market, such undertaking (whether individually or jointly with others) enjoys a position which is equivalent to dominance of that market, that is to say a position of economic strength affording it the power to behave to an appreciable extent, independently of competitors, customers, and ultimately, consumers.

• (2) The Regulator shall, when assessing whether an undertaking has significant market power or whether two or more undertakings are in a joint dominant position in a relevant market, act in accordance with European Community law and take utmost account of guidelines on market analysis and the assessment of significant market power published by the European Commission pursuant to Article 15(2) of the Framework Directive and, in addition, in the case of an assessment of whether two or more undertakings are in a joint dominant position the criteria set out in the Schedule.

• (3) Where an undertaking has significant market power on a relevant market, it may also be deemed to have significant market power on a closely related market, where the links between the two markets are such as to allow the market power held in one market to be leveraged into the other market, thereby strengthening the market power of the undertaking.

Market definition procedure

26 As soon as possible after the adoption by the European Commission of a recommendation referred to in Article 15(1) of the Framework Directive, the Regulator shall, subject to Regulations 19 and 20 and taking utmost account of such recommendation and of guidelines referred to in Article 15(2) of the Framework Directive, and in accordance with the principles of competition law, define relevant markets for the purposes of these Regulations and the Specific Regulations, including the geographical area within the State of such markets.

Market analysis procedure

27 (1) As soon as possible after the Regulator defines a relevant market, the Regulator shall carry out an analysis of such market, in accordance where appropriate, with an agreement with the Competition Authority under section 34 of the Competition Act 2002 and taking the utmost account of the guidelines referred to in Article 15(2) of the Framework Directive.

• (2) Where the Regulator is required under Regulation 14, 15 or 16 of the Universal Service Regulations or Regulation 8 or 9 of the Access Regulations to determine whether to impose, maintain, amend or withdraw specific obligations on undertakings, it shall determine on the basis of a market analysis referred to in paragraph (1) whether a relevant market is effectively competitive.

• (3) Where the Regulator concludes that a relevant market is effectively competitive, an undertaking operating in such market is not required to comply with any obligations referred to in paragraph (2) applicable to an undertaking with significant market power. In cases where an undertaking had previously been designated as having significant market power in such market and such obligations already exist, the Regulator shall, after giving reasonable notice to any parties which it considers to be affected by such withdrawal, withdraw such obligation from the undertaking concerned.

• (4) Where the Regulator determines that a relevant market is not effectively competitive, it shall designate undertakings with significant market power on that market in accordance with Regulation 25 and it shall impose on such undertakings such specific obligations as it considers appropriate.

• (5) In the case of transnational markets identified in a decision referred to in Article 15(4) of the Framework Directive, the Regulator and any other relevant national regulatory authority concerned shall jointly conduct the market analysis taking the utmost account of the guidelines referred to in Article 15(2) of the Framework Directive and decide on any imposition, maintenance, amendment or withdrawal of specific obligations in a concerted fashion.

• (6) The Regulator shall, after such period as it considers appropriate, carry out a further analysis of a relevant market referred to in paragraph (1 and paragraphs (2) to (5) apply accordingly.

Interoperability of digital interactive television services

• (a) providers of digital interactive television services for distribution to the public in the European Community on digital interactive television platforms, regardless of the transmission mode, to use an open application program interface;

• (b) providers of all enhanced digital television equipment deployed for the reception of digital interactive television services on interactive digital television platforms to comply with an open application program interface in accordance with the minimum requirement of the relevant standards or specifications.

• (2) Without prejudice to Regulation 6(2)(b) of the Access Regulations, the Regulator shall, having regard to its objectives under section 12 of the Act of 2002 and its functions under these Regulations and the Specific Regulations, encourage proprietors of application program interfaces to make available on fair, reasonable and non-discriminatory terms, and against appropriate remuneration, all such information as is necessary to enable providers of digital interactive television services to provide all services supported by the application program interface in a fully functional form.

Standardisation

• (a) services,

• (b) technical interfaces, or

• (c) network functions,

to the extent strictly necessary to ensure interoperability of services and to improve freedom of choice for users.

• (2) As long as standards or specifications or both standards and specifications have not been published by the Regulator in accordance with Article 17(1) of the Framework Directive, the Regulator shall encourage the implementation of standards or specifications or both standards and specifications adopted by the European Standards Organisations.

• (3) In the absence of such standards or specifications, the Regulator shall encourage the implementation of international standards or recommendations adopted by the International Telecommunication Union (ITU), the International Organisation for Standardisation (ISO or the International Electrotechnical Commission (IEC).

• (4) This Regulation does not apply in respect of any of the essential requirements, interface specifications or harmonised standards to which Directive 1999/5/EC⁸ of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity applies.

Harmonisation procedures

• (2) Where the Regulator chooses not to follow any such recommendation it shall so inform the Minister and the European Commission, giving the reasoning for its position.

Dispute resolution between undertakings

• (2) The Regulator shall publish its dispute resolution procedures and shall ensure that all investigations and determinations are handled in accordance with those procedures.

• (3) The Regulator may decide not to initiate an investigation referred to in paragraph (1) where it is satisfied that other means of resolving the dispute in a timely manner are available to the parties or if legal proceedings in relation to the dispute have been initiated by either party.

• (4) Where the Regulator decides not to initiate an investigation under paragraph (3), it shall inform the parties of such decision as soon as possible thereafter, including the reasons for such a decision.

• (5) If, 4 months from the date of a decision referred to in paragraph (3) the dispute is not resolved and legal proceedings by either party in relation to the dispute are not in progress, the Regulator shall at the request of either party initiate an investigation and make a determination in accordance with paragraph (1).

• (6) In making a determination under this Regulation the Regulator shall have regard to section 12 of the Act of 2002.

• (7) An undertaking to which a determination under this Regulation applies shall comply with the provisions of the determination applicable to it.

• (8) An undertaking which fails to co-operate with an investigation under this Regulation or comply with a determination under this regulation is guilty of an offence.

• (9) Any obligations imposed on an undertaking by the Regulator in resolving a dispute shall respect the provisions of the Framework Directive and the Specific Directives these Regulations, the Specific Regulations and section 12 of the Act of 2002.

• (10) The Regulator shall publish notice of a determination under this Regulation and the notice shall indicate where copies of or information regarding the determination may be obtained.

• (11) The procedure referred to in this Regulation does not preclude either party from bringing an action before the courts and is without prejudice to Regulation 3.

Resolution of cross-border disputes

• (2) Any party may refer such a dispute to the Regulator or to the other national regulatory authority concerned. The Regulator shall coordinate with the other national regulatory authority in order to bring about a resolution of the dispute, in accordance with the objectives set out in Article 8 of the Framework Directive. Where the Regulator makes a determination for the purposes of resolving a dispute under this Regulation, paragraphs (6) to (10) of Regulation 31 apply.

• (3) The Regulator may enter into arrangements with other national regulatory authorities whereby they may jointly decline to resolve a dispute where other mechanisms, including mediation, exist and would better contribute to resolution of the dispute in a timely manner in accordance with the provisions of Article 8 of the Framework Directive. Such arrangements shall include provision for the Regulator or the other national regulatory authorities to inform the parties without delay where they agree to jointly decline to resolve the dispute. If after 4 months the dispute is not resolved, if the dispute has not been brought before the courts by the party seeking redress, and if either party requests it, the Regulator shall coordinate with the other national regulatory authority in order to bring about a resolution of the dispute in accordance with Article 8 of the Framework Directive.

• (4) The procedure referred to in paragraph (2) does not preclude either party from bringing an action before the courts.

Proceedings and penalties

• (2) Subject to paragraph (3), summary proceedings for an offence under Regulation 11(3) may be brought and prosecuted by an Appeal Panel.

• (3) Where the Regulator has made an application under Regulation 35 to the High Court to compel compliance with an obligation under these Regulations, the Regulator shall not bring proceedings for an offence under these Regulations committed by the person concerned or give a notice under section 44 of the Act of 2002 in respect of a failure to comply with the obligation.

• (4) A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €3,000.

• (5) Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager, secretary or other similar officer of such body or a person who was purporting to act in any such capacity that person as well as the body corporate is guilty of an offence and is are liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

• (6) Where the affairs of a body corporate are managed by its members paragraph (5) applies in relation to the acts and defaults of a member of that body in connection with the member's functions of management as if he or she were a director or manager of it.

• (7) An offence under these Regulations, other than an offence under Regulation 11(3), is an offence to which section 44 of the Act of 2002 applies.

Directions

Enforcement - Compliance with obligations

• (a) one month after issue of the notification,

• (b) such shorter period as is agreed by the Regulator with the person concerned or stipulated by the Regulator in case of repeated non-compliance, or

• (c) such longer period as may be specified by the Regulator.

• (2) The Regulator may publish, in such manner as it thinks fit, any notification given by it under this Regulation, subject to the protection of the confidentiality of any information which the Regulator considers confidential.

• (3) The Regulator may amend or revoke any notification under this Regulation.

• (4) Where, at the end of the period referred to in paragraph (1), the Regulator is of the opinion that the person concerned has not complied with the obligation or the direction, the Regulator may, subject to paragraph (8), apply to the High Court for such order as may be appropriate, to compel compliance with the obligation or direction. The Court may, as it thinks fit, on the hearing of the application make an order compelling compliance with the obligation or direction or refuse the application. An order compelling compliance shall stipulate a reasonable period for the person to comply with the obligation or direction.

• (5) An application for an order under paragraph (4) shall be by motion and the Court when dealing with the matter may make such interim or interlocutory order as it considers appropriate.

• (6) The Court shall not deny any interim or interlocutory relief referred to in paragraph (5) solely on the basis that the Regulator may not suffer any damage if such relief were not granted pending conclusion of the action.

• (7)
• (a) An application for an order under paragraph (4) may include an application for an order to pay to the Regulator such amount, by way of financial penalty, as the Regulator may propose as appropriate in the light of the non-compliance.

• (b) In deciding on such an application, the Court shall decide the amount (if any) of the financial penalty which should be payable and shall not be bound by the amount proposed by the Regulator.

• (c) Any financial penalty ordered by the Court to be paid by a person under this paragraph shall be paid to and retained by the Regulator as income.

• (d) In deciding what amount (if any) should be payable, the Court shall consider the circumstances of the non-compliance including —

• (i) its duration,

• (ii) the effect on consumers, users and other operators,

• (iii) the submissions of the Regulator on the appropriate amount, and

• (iv) any excuse or explanation for the non-compliance.

• (8) Where the Regulator has brought proceedings for an offence under these Regulations or given a notice under section 44 of the Act of 2002 in respect of a failure by a person to comply with an obligation under these Regulations, the Regulator shall not make an application for an order under this Regulation to the High Court to compel compliance by the person with the obligation.

Service of determinations, directions and notifications

36 (1) Where the Regulator issues a determination, direction or notification, it shall be in writing, state the reasons on which it is based and be addressed to the person concerned, and as soon as practicable, be sent or given in any of the following ways —

• (a) by delivering it to the person,

• (b) by leaving it at the address at which the person carries on business,

• (c) by sending it by pre-paid registered post to the address at which the person carries on business,

• (d) if an address for the service of determinations, directions or notifications has been furnished by the person to the Regulator, by leaving it at, or sending it by pre-paid registered post to, that address, or

• (e) in any case where the Regulator considers that the immediate giving of the determination, direction or notification is required, by sending it, by means of a facsimile machine or by electronic mail to a device or facility for the reception of facsimiles or electronic mail located at the address at which the person ordinarily carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the determination direction or notification or the sender's facility for the reception of electronic mail generates a message confirming receipt of the electronic mail.

• (2) For the purposes of paragraph (1), a company within the meaning of the Companies Acts 1963 to 2001 is deemed to be carrying on business at its registered office and every other body corporate and every unincorporated body is deemed to be carrying on business at its principal office or place of business.

Notice of cessation of obligations

Repeals and revocations

• (a) sections 4 and 6 of the Telegraph Act 1869 (c. 73), and

• (b) section 111 of the Postal and Telecommunications Services Act 1983 (No. 24 of 1983).

• (2) The Wireless Telegraphy (Wired Broadcast Relay Licence Regulations 1974 ( S.I. No. 67 of 1974 ) are revoked.

• (3) The following Regulations are, subject to Regulation 8 of the Access Regulations and Regulations 7(5) and 13 of the Universal Service Regulations, revoked:

• (a) the European Communities (Telecommunications Services Regulations 1992 ( S.I. No. 45 of 1992 ),

• (b) Regulations 4 and 5 of the European Communities (Telecommunications Infrastructure) Regulations 1997 ( S.I. No. 338 of 1997 ),

• (c) the European Communities (Interconnection in Telecommunications) Regulations 1998 ( S.I. No. 15 of 1998 ),

• (d) the European Communities (Telecommunications Licences Regulations 1998 ( S.I. No. 96 of 1998 ),

• (e) the European Communities (Leased Lines) Regulations 1998 ( S.I. No. 109 of 1998 ),

• (f) the European Communities (Use of Standards for the Transmission of Television Signals) Regulations 1998 ( S.I. No. 262 of 1998 ),

• (g) the European Communities (Voice Telephony and Universal Service) Regulations 1999 ( S.I. No. 71 of 1999 ),

• (h) the European Communities (Interconnection in Telecommunications) (Amendment) Regulations 1999 ( S.I. No. 249 of 1999 ),

• (i) the European Communities (Interconnection in Telecommunications) (Amendment) Regulations 2000 ( S.I. No. 69 of 2000 ),

• (j) the European Communities (Telecommunications Licences)(Amendment) Regulations 2000 ( S.I. No. 70 of 2000 ), and

• (k) the European Communities (Electronic Communications Networks and Services) (Market Definition and Analysis Regulations 2003 ( S.I. No. 80 of 2003 ).

SCHEDULE CRITERIA TO BE USED BY REGULATOR IN MAKING AN ASSESSMENT OF JOINT DOMINANCE IN ACCORDANCE WITH REGULATION 25(2)

Regulation 25

Two or more undertakings can be found to be in a joint dominant position within the meaning of Regulation 25 if, even in the absence of structural or other links between them, they operate in a market the structure of which is considered to be conducive to coordinated effects. Without prejudice to the case law of the Court of Justice of the European Communities on joint dominance, this is likely to be the case where the market satisfies a number of appropriate characteristics, in particular in terms of market concentration, transparency and other characteristics mentioned below:

— mature market,

— stagnant or moderate growth on the demand side,

— low elasticity of demand,

— homogeneous product,

— similar cost structures,

— similar market shares,

— lack of technical innovation, mature technology,

— absence of excess capacity,

— high barriers to entry,

— lack of countervailing buying power,

— lack of potential competition,

— various kinds of informal or other links between the undertakings concerned,

— retaliatory mechanisms,

— lack or reduced scope for price competition.

The above is not an exhaustive list, nor are the criteria cumulative. Rather, the list is intended to illustrate only the sorts of evidence that could be used to support assertions concerning the existence of joint dominance.

	GIVEN under my Official Seal, 21 July 2003
	Dermot Ahern T.D. Minister for Communications, Marine and Natural Resources

EXPLANATORY NOTE

(This note is not part of the Instrument and does not it purport to be a legal interpretation)

The purpose of these Regulations is to give effect 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 and services (Framework Directive). The Regulations establish a framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services.

Footnotes