S.I. No. 333/2011 - European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011

• (7) In making a determination under this Regulation the Regulator shall have regard to its objectives under section 12 of the Act of 2002 and Regulation 16.

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

• (9) An undertaking that—

• (a) fails to co-operate with an investigation under this Regulation, or

• (b) fails to comply with a determination made under this Regulation,

commits an offence.

• (10) In proceedings for an offence under paragraph (9) it is a defence to establish that—

• (a) reasonable steps were taken to co-operate with the relevant investigation or to comply with the determination, or

• (b) it was not possible to co-operate with the relevant investigation or to comply with that determination.

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

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

• (13) The procedure referred to in this Regulation does not preclude either party from bringing an action before the courts and is without prejudice to the right to bring an appeal under Regulation 4.

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 co-ordinate its efforts with the other national regulatory authority concerned and may consult BEREC in order to bring about a consistent resolution of the dispute in accordance with the objectives set out in Article 8 of the Framework Directive.

• (3) Any obligations imposed by the Regulator and by the other national regulatory authority concerned on undertakings as part of the resolution of a dispute shall comply with the provisions of the Framework Directive and the provisions of the Specific Directives. Where the Regulator makes a determination for the purpose of resolving a dispute under this Regulation, paragraphs (7) to (12) of Regulation 31 apply.

• (4) The Regulator may request BEREC to adopt an opinion as to the action to be taken in accordance with the Framework Directive or the Specific Directives to resolve the dispute.

• (5) Where a request is made to BEREC under paragraph (4), the Regulator shall await the opinion of BEREC before taking action to resolve the dispute. This shall not preclude the Regulator from taking urgent measures where necessary.

• (6) Any obligations imposed on an undertaking by the Regulator in resolving a dispute shall respect the Specific Regulations, the Framework Directive or the Specific Directives and take the utmost account of the opinion adopted by BEREC.

• (7) The Regulator may enter into arrangements with the other national regulatory authority concerned whereby they may jointly decline to resolve a dispute where other mechanisms, including mediation, exist and would better contribute to the resolution of the dispute in a timely matter in accordance with Article 8 of the Framework Directive.

• (8) The arrangements referred to in paragraph (7) shall include provision for the Regulator and the other national regulatory authority concerned to inform the parties without delay where it has been agreed to jointly decline to resolve the dispute. If, after the expiry of 4 months from the parties being so informed—

• (a) the dispute has not been resolved,

• (b) the dispute has not been brought before the courts by the party seeking redress, and

• (c) if either party requests it,

the Regulator shall co-ordinate its efforts with the other national regulatory authority concerned in order to resolve the dispute, in accordance with Article 8 of the Framework Directive and taking the utmost account of the opinion adopted by BEREC.

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

Prosecution of offences

• (a) the Regulator has made an application under Regulation 37 to the High Court to secure an undertaking’s compliance with an obligation, requirement, determination or direction imposed by or under these Regulations, and

• (b) a provision of these Regulations makes it an offence to fail to comply with the obligation, requirement, determination or direction,

the Regulator may not bring proceedings against the undertaking for such an offence or give notice under section 44 of the Act of 2002 for failure to comply with the obligation, requirement, determination or direction.

• (2) An offence under these Regulations is an offence to which section 44 of the Act of 2002 applies.

Offences by bodies corporate

• (a) an offence under these Regulations is committed by a body corporate, and

• (b) the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person who is a director, manager or secretary or other similar officer of the body corporate, or is a person who was purporting to act in any such capacity,

that person as well as the body corporate commits an offence and is liable to be proceeded against and punished as if that person had committed the first-mentioned offence.

• (2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and omissions of a member of the body in connection with the member’s functions of management as if the member were a director or manager of it.

• (3) A person may be proceeded against for an offence under paragraph (1) whether or not the body corporate has been proceeded against or been convicted of the offence committed by the body.

Penalties

• (2) An undertaking that commits an offence under Regulation 10(5), 20(4), 22(3), 23(6) or 24(4) is liable, on summary conviction to a class A fine or, on conviction on indictment—

• (a) in the case of a body corporate, to a fine not exceeding €500,000, or

• (b) in the case of a natural person, to a fine not exceeding €50,000.

Directions

Enforcement and compliance requirements

• (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 specified by the Regulator under paragraph (1), the Regulator is of the opinion that the undertaking concerned has not complied with the obligation, requirement, determination or direction, the Regulator may, whether or not the non-compliance is continuing, subject to paragraph (9), apply to the High Court for such order as the Regulator considers appropriate including—

• (a) a declaration of non-compliance,

• (b) an order directing compliance with the obligation, requirement, determination or direction,

• (c) an order directing the remedy of any non-compliance with the obligation, requirement, determination or direction, or

• (d) an order as provided for in paragraph (8).

• (5) The High Court may, on the hearing of the application referred to in paragraph (4), make such order as it thinks fit which may include—

• (a) a declaration of non-compliance,

• (b) an order directing compliance with the obligation, requirement, determination or direction,

• (c) an order directing the remedy of any non-compliance with the obligation, requirement, determination or direction, or

• (d) an order as provided for in paragraph (8),

or refuse the application.

An order of the High Court compelling compliance may stipulate that the obligation, requirement, determination or direction must be complied with immediately or may specify a reasonable time limit for compliance and may also stipulate appropriate and proportionate measures aimed at ensuring compliance.

• (6) The High Court when dealing with an application under paragraph (4) may make such interim or interlocutory order as it considers appropriate.

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

(8)(a) An application for an order under paragraph (4) may be for, or include an application for, an order to pay to the Regulator such amount, by way of financial penalty, which may include penalties having effect for periods of non-compliance with the obligation, requirement, determination or direction, as the Regulator may propose as appropriate in the light of the non-compliance or any continuing non-compliance. Such an application for an order in respect of a financial penalty for a period of non-compliance may be made even if there since has been compliance with the obligation, requirement, determination or direction.

• (b) In deciding on such an application, the High 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 High Court to be paid by an undertaking 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 High 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.

• (9) 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 an alleged offence 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 undertaking with the obligation, requirement, determination or direction to which the proceedings or notice relates.

Service of determinations, directions and notifications

• (a) by delivering it to the undertaking,

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

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

• (d) if an address for the service of determinations, directions or notifications has been furnished by the undertaking 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 undertaking ordinarily carries on business or, if an address for the service of notices has been furnished by the undertaking, that address, but only if—

• (i) the senders facsimile machine generates a message confirming successful delivery of the total number of pages of the determination, direction or notification, or

• (ii) the recipients facility for the reception of electronic mail generates a message confirming receipt of the electronic mail,

and it is also given in one of the other ways mentioned in subparagraphs (a) to (d).

• (2) In paragraph (1), a company within the meaning of the Companies Acts is deemed to be ordinarily resident at its registered office and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

PART 5 Amendment to the Act of 2002, transitional arrangements and repeals and revocations

Amendment of the Act of 2002

“ ‘physical infrastructure’ means infrastructure which is capable of supporting electronic communications infrastructure including buildings, entries to buildings, wiring both inside and outside buildings, masts, antenna, poles, towers and other supporting constructions, ducts, conduits, manholes, cabinets and rights of way over land but does not include electronic communications infrastructure;”.

Transitional arrangements

• (2) For the purpose of this Regulation, “measure” means a decision, designation, determination, direction, notice, notification (other than a notification under Regulation 35(1) of the Regulations of 2003), requirement, specification or other act of an equivalent effect made by the Regulator.

• (3) Notwithstanding the revocation of the Regulations of 2003, notifications by the Regulator on a person under Regulation 35(1) of those Regulations—

• (a) continue in force, and

• (b) may continue to be issued, revoked or amended,

as if the Regulations of 2003 had not been revoked.

Revocations

• (2) The following Regulations are revoked:

• (a) the Regulations of 2003;

• (b) the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2003 (Amendment) Regulations 2006 ( S.I. No. 210 of 2006 ); and

• (c) the European Communities (Electronic Communications Networks and Services) (Framework) (Amendment) Regulations 2007 ( S.I. No. 271 of 2007 ).

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 which is characterised by a lack of effective competition and in which no single undertaking has significant market power. In accordance with the applicable European Union law and with the case law of the Court of Justice of the European Union on joint dominance, this is likely to be the case where the market is concentrated and exhibits a number of appropriate characteristics of which the following may be the most relevant in the context of electronic communications:

• • low elasticity of demand;

• • similar market shares;

• • high legal or economic barriers to entry;

• • vertical integration with collective refusal to supply;

• • lack of countervailing buyer power;

• • lack of potential competition.

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

GIVEN under my Official Seal,

1 July 2011.

PAT RABBITTE,

Minister for Communications, Energy and Natural Resources.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not 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), and the amendments to that Directive as introduced by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009.

As well as transposing the amendments made by Directive 2009/140/EC, these Regulations consolidate the provisions of the existing Statutory Instruments transposing the Framework Directive, namely, the “European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2003 ( S.I. No. 307 of 2003 )”, the “European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2003 (Amendment) Regulations 2006 ( S.I. No. 210 of 2006 )” and the “European Communities (Electronic Communications Networks and Services) (Framework) (Amendment) Regulations 2007 ( S.I. No. 271 of 2007 )”, which have been revoked by these Regulations.

These Regulations establish a framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services.

Footnotes