S.I. No. 444/2022 - European Union (Electronic Communications Code) Regulations 2022

• (5) The Minister, or a person nominated by the Minister, shall promote access to emergency services through the single European emergency number ‘112’, through the national emergency number “999” and through any other national emergency number that may be specified by the Regulator, from electronic communications networks which are not publicly available but which enable calls to public networks, in particular when the undertaking responsible for that network does not provide an alternative and easy access to an emergency service.

• (6)
• (a) Providers of the services referred to in paragraph (1) shall ensure that end-users with disabilities can enjoy access to emergency services through emergency communications equivalent to that enjoyed by other end-users, in accordance with any requirement of law for accessibility for products or services.

• (b) The Regulator may, following consultation with the Minister, specify measures applicable to providers for the purpose of compliance with subparagraph (a). These shall include appropriate measures to ensure that whilst travelling in another Member State, end-users with disabilities can access emergency services on an equivalent basis with other end-users, where feasible, without any pre-registration. Those measures shall seek to ensure interoperability across Member States and shall be based to the greatest extent possible on, but not limited to, European standards or specifications laid down in accordance with Regulation 23.

• (7)
• (a) A provider of the services referred to in paragraph (1) shall make caller location information available to the most appropriate PSAP without delay after the emergency communication is set up. This shall include network-based location information and, where available, handset-derived caller location information.

• (b) The establishment and the transmission of the caller location information referred to in subparagraph (a) shall be free of charge for the end-user and the PSAP with regard to all emergency communications to the single European emergency number “112”, to the national emergency number “999”, and to any other national emergency number that may be specified by the Regulator.

• (c) In the absence of standards specified by the Regulator in accordance with paragraph (3)(a)(iii), where a provider referred to in subparagraph (a) is neither a provider of a public electronic communications network, or integrated with such a provider (a ‘network independent provider’), it shall provide caller location information to the most appropriate PSAP in accordance with this paragraph only to the extent that it is technically feasible or economically viable.

• (d) For the purpose of this paragraph, the Regulator, if necessary after consulting BEREC, and in consultation with the Minister, shall lay down criteria pertaining to the accuracy and reliability of the caller location information provided and a provider to which this paragraph applies shall comply with such criteria.

• (8) The Regulator may, in consultation with the Minister, specify obligations for compliance by providers of any particular class or classes that may be specified by the Regulator for the purpose of ensuring that members of the public are adequately informed about the existence and use of the single European emergency number “112”, as well as its accessibility features, including through initiatives specifically targeting persons travelling between Member States and end-users with disabilities. The information shall be provided in accessible formats, addressing different types of disabilities.

• (9) A provider that fails to comply with this Regulation commits an offence and is liable on summary conviction to a class A fine.

• (10) In proceedings for an offence under paragraph (9) it is a defence for the provider charged to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.

Equivalent access and choice for end-users with disabilities

94.

• (a) have access to electronic communications service, including the related contractual information provided pursuant to Regulation 87, equivalent to that enjoyed by the majority of end-users, and

• (b) benefit from the choice of undertakings and services available to the majority of end-users.

• (2) When specifying requirements in accordance with paragraph (1), the Regulator shall encourage providers to comply with the relevant standards or specifications laid down in accordance with Regulation 23.

• (3) Any requirements specified by the Regulator under Regulation 17 of the universal service regulations, which are in force on the commencement of this Regulation are deemed to be requirements under this Regulation.

Directory enquiry services

95.

• (2) In accordance with Regulation 42, the Regulator may impose obligations and conditions on undertakings that control access to end-users, for the provision of directory enquiry services and any such obligations and conditions shall be objective, equitable, non-discriminatory and transparent.

• (3) Subject to Regulation 14 of the Privacy and Electronic Communications Regulations and for the purposes of this Regulation, a person that may be required to do so by the Regulator shall keep a record (to be known as the National Directory Database) of all subscribers of voice communication services in the State, including those with fixed, personal and mobile numbers who have not refused to be included in that record, and shall meet all reasonable requests for access to any information contained in that record in an agreed format, on terms that are fair, objective, cost orientated and non-discriminatory, and in accordance with such terms and conditions as may be specified by the person and approved by the Regulator.

• (4) The Regulator shall not maintain any regulatory restriction which prevents an end-user in the State from accessing directly, by voice call or SMS, a directory enquiry service in another Member State or an end-user in another Member State from accessing directly directory enquiry services in the State and shall take measures to ensure such access in accordance with Regulation 83.

• (5) This Regulation applies subject to the requirements of European Union law on the protection of personal data and privacy and in particular Regulation 12 of the Privacy and Electronic Communications Regulations.

• (6) A person that fails to comply with a requirement of paragraph (1), (2) or (3) commits an offence and is liable on summary conviction to a class A fine.

• (7) In proceedings for an offence under paragraph (6) it is a defence for the person charged to show that they took all reasonable steps and exercised due diligence to avoid committing the offence.

• (8) The National Directory Database under Regulation 19(4) of the Universal Service Regulations continues in being.

Interoperability of car radio and consumer radio receivers and consumer digital television equipment

96.

• (a) allow the descrambling of such signals according to the common European scrambling algorithm as administered by a recognised European standards organisation, and

• (b) display signals that have been transmitted in the clear provided that, in the event that such equipment is rented, the person renting is in compliance with the relevant rental agreement.

• (2) A person who places on the market for sale or rent a digital television set with an integral screen of visible diagonal greater than 30 centimetres shall ensure that the set is fitted with at least one open interface socket (either standardised by, or conforming to a standard adopted by, a recognised European standards organisation or conforming to an industry-wide specification) permitting simple connection of peripherals, and able to pass all the elements of a digital television signal, including information relating to interactive and conditionally accessed services.

• (3) The Competition and Consumer Protection Commission shall encourage providers of digital television services to ensure, where appropriate, that the digital television equipment that they provide to their end-users is interoperable so that, where technically feasible, the digital television equipment is reusable with other providers of digital television services.

• (4) Without prejudice to the European Union (Waste Electrical and Electronic Equipment) Regulations 2014 ( S.I. No. 149 of 2014 ), end-users shall be permitted to return the digital television equipment upon termination of their contract through a free and easy process, unless the provider demonstrates that it is fully interoperable with the digital television services of other providers, including those to which the end-user has switched.

• (5) Digital television equipment which conforms with harmonised standards the references of which have been published in the Official Journal of the European Union or with parts conforming to these standards shall be considered to comply with the requirements of paragraph (2).

• (6) A person who places on the market for sale or rent a new vehicle of category M with an integrated car radio receiver shall ensure that the integrated car radio receiver is capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting.

• (7) Receivers which conform with harmonised standards the references of which have been published in the Official Journal of the European Union or with parts conforming to these standards shall be considered to comply with the requirements of paragraph (6).

• (8) In this Regulation “rent” in relation to any television set, or other equipment or vehicle of category M means the supplying to a customer of that set, or equipment or vehicle of category M under a rental agreement.

• (9) It shall be a task of –

• (a) the Regulator to monitor compliance with paragraphs (1) and (6), and

• (b) the Competition and Consumer Protection Commission to monitor compliance with paragraph (2).

• (10) Any person who fails to comply with a requirement of paragraph (1), (2) or (6) commits an offence and is liable on summary conviction to a class A fine.

• (11) In a prosecution for an offence under paragraph (10) it is a defence for the person charged to show that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence.

Provision of additional facilities

97.

• (a) facilities listed in Part B of Schedule 5, subject to technical feasibility, and

• (b) facilities and services listed in Part A of Schedule 5.

• (2) A provider shall comply with any requirement made of it under paragraph (1) within such reasonable period as the Regulator shall specify.

• (3) Where a provider referred to in paragraph (1) considers that it is not technically feasible to provide all or part of the additional facilities listed in Part B of Schedule 5, it shall notify the Regulator of the fact and give reasons including all relevant information in support of its views.

• (4) The Regulator shall consider the information given to it under paragraph (3) and any other information it considers relevant and shall either agree or disagree with the decision of the provider.

• (5) Where the Regulator disagrees with the decision of the provider as aforesaid, it may issue a direction to that provider to provide all or part of the additional facilities listed in Part B of Schedule 5.

• (6) If the Regulator considers, after taking into account any views expressed to it under a public consultation carried out in accordance with Regulations 101 and 102, as appropriate, that there is sufficient access to the facilities referred to in paragraph (1) in all or in any part of the State, it may dis-apply paragraph (1) in relation to the whole or any such part of the State.

• (7) A provider that fails to comply with —

• (a) a requirement specified under paragraph (1), or

• (b) a direction issued to it under paragraph (5),

commits an offence and is liable on summary conviction to a class A fine.

• (8) In proceedings for an offence under paragraph (7) it is a defence for a provider to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.

Part 12 PROVISION AND PUBLICATION OF INFORMATION, SURVEYS AND CONSULTATION MECHANISM

Information request to undertakings

98.

In particular, the Regulator shall have the power to require such undertakings, persons or public authorities to provide information concerning future network or service developments that could have an impact on the wholesale services that the undertaking, person or authority makes available to competitors, as well as information on electronic communications networks and associated facilities which is disaggregated at local level and sufficiently detailed, in the opinion of the Regulator, to enable the geographical survey and designation of areas in accordance with Regulation 100.

• (2) Where the information collected in accordance with paragraph (1) is insufficient for the Regulator or another competent authority under these Regulations or BEREC under the Directive to carry out their regulatory tasks, such information may be requested from other relevant undertakings active in the electronic communications or closely related sectors.

• (3) Where an undertaking referred to in paragraph (1) is designated as having significant market power on wholesale markets, the Regulator may, in accordance with paragraph (1), require the undertaking to provide accounting data on the retail markets that are associated with those wholesale markets.

• (4) The Regulator or another competent authority may request information from a single information point established in another Member State under Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014¹⁵ .

• (5) An undertaking, or person referred to in Regulation 79, that fails to comply with a requirement under paragraph (1) commits an offence and is liable on summary conviction to a class A fine.

• (6) An undertaking that fails to comply with paragraph (3) commits an offence and is liable on summary conviction to a class A fine.

• (7) In proceedings for an offence under paragraph (5) or (6), it is a defence for the undertaking or person referred to in Regulation 79 that is charged to show that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (8) Upon receipt of a reasoned request from the European Commission, the Regulator or another competent authority 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 Treaties governing the European Union.

• (9) Where any information requested by the European Commission under paragraph (8) has been previously obtained by the Regulator or another competent authority under paragraph (1), (2) or (3) or the Regulator under section 13D or 39 of the Act of 2002, the Regulator or the other competent authority shall notify, in writing, the undertaking, person or authority which provided that information that the Regulator or the other competent authority 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 or competent authorities in other Member States, unless the Regulator or the other competent authority makes an explicit and reasoned request to the contrary. In the case of information expressed to be confidential by the undertaking, person or authority which provided it, the Regulator or the other competent authority shall, except where it considers there are exceptional circumstances, delay provision of the information to the European Commission to enable the undertaking, person or authority which provided the information concerned to make written representations to it within 7 days of the notification referred to in this paragraph.

• (10) The Regulator or another competent authority may, taking into account any representations expressed to it under paragraph (9), make an explicit and reasoned request to the European Commission not to make any information provided under paragraph (8) available to a national regulatory authority or competent authority in another Member State.

• (11) The Regulator or another competent authority may make information submitted to it under paragraph (1), (2) or (3) available to a national regulatory authority or competent authority in another Member State and to BEREC, after a substantiated request, where the Regulator or other competent authority is satisfied that provision of such information is necessary to allow the Regulator or the other competent authority, or BEREC, to fulfil its responsibilities under European Union law.

• (12) Where the Regulator or another competent authority considers information gathered pursuant to paragraph (1), (2) or (3), including information gathered in the context of a geographical survey, to be made available under paragraph (8) or (11) is confidential, it shall identify such information accordingly.

• (13) The confidentiality of information referred to in paragraph (12) shall not prevent the sharing of information between the Regulator, the European Commission, BEREC and any other competent authorities concerned in a timely manner for the purposes of reviewing, monitoring and supervising the application of the Directive.

• (14) Where the Regulator or another competent authority receives information classified as confidential from the European Commission or from a national regulatory authority or competent authority of another Member State under Article 20 of the Directive and the Regulator or the other competent authority is satisfied that such information is so classified in accordance with rules of commercial confidentiality of the European Union or of the Member State from which the information originated, as the case may be, they shall protect the confidentiality of such information. The Freedom of Information Act 2014 shall not apply to such information.

• (15) The Regulator and other competent authorities shall, subject to the protection of the confidentiality of any information which they consider to be confidential and the protection of personal data, publish from time to time such information as would, in the opinion of the Regulator or the other competent authority, contribute to an open and competitive market.

• (16) The Regulator and other competent authorities shall publish the terms of public access to information as referred to in paragraph (15), including the procedures for obtaining such access.

Information required with regard to general authorisation, rights of use and specific obligations

99.

• (a) verifying on a systematic or case-by-case basis compliance with, as appropriate, condition 1 of Part A, conditions 2 and 6 of Part D, and conditions 2 and 7 of Part E of Schedule 1 and of compliance with any of the specific obligations,

• (b) verifying on a case-by-case basis, compliance with conditions as set out in Schedule 1 where a complaint has been received by the Regulator, where the Regulator has other reasons to believe that a condition is not complied with or in the case of an investigation by the Regulator on its own initiative,

• (c) carrying out procedures for and the assessment of requests for granting rights of use,

• (d) publishing of comparative overviews of quality and price of services for the benefit of consumers,

• (e) collating clearly defined statistical reports or studies,

• (f) carrying out market analyses for the purposes of these Regulations, including data on the downstream or retail markets associated with or related to the markets which are the subject of the market analysis,

• (g) safeguarding the efficient use and ensuring the effective management of radio spectrum and of numbering resources, and

• (h) evaluating future network or service developments that could have an impact on wholesale services made available to competitors, on territorial coverage, on connectivity available to end-users or on the designation of areas pursuant to Regulation 100,

• (i) conducting geographical surveys,

• (j) responding to reasoned requests for information by BEREC.

• (2) The information referred to in subparagraphs (a) and (b), and (d) to (j) of paragraph (1) shall not be required prior to or as a condition for market access.

• (3) As regards the rights of use for radio spectrum, the information referred to in paragraph (1) shall refer in particular to the effective and efficient use of radio spectrum as well as to compliance with any coverage and quality of service obligations attached to the rights of use for radio spectrum and their verification.

• (4) Where the Regulator requires an undertaking to provide any such information as is referred to in paragraph (1), the Regulator shall inform the undertaking concerned of the specific purpose for which this information is to be used.

• (5) The Regulator shall not duplicate requests of information already made by BEREC pursuant to Article 40 of Regulation (EU) 2018/1971¹⁶ where BEREC has made the information received available to it.

Geographical surveys of network deployments

100.

• (2) The geographical survey shall include a survey of the current geographic reach of broadband networks, as required for the tasks of the Regulator and the Minister under these Regulations and for the surveys required for the application of State aid rules.

• (3) The geographical survey may also include a forecast for a period determined by the Regulator of the reach of broadband networks, including very-high-capacity networks, and such forecast shall include all relevant information, including information on planned deployments by any undertaking or public authority, of very-high-capacity networks and significant upgrades or extensions of networks to at least 100 Mbps download speeds.

• (4) For the purpose of a forecast referred to in paragraph (3), the Regulator shall request undertakings and public authorities to provide such information to the extent that it is available and can be provided with reasonable effort.

• (5) The Regulator shall decide, with respect to tasks specifically attributed to it under the Directive, the extent to which it is appropriate to rely on all or part of the information gathered in the context of such forecast.

• (6) The information collected by the Regulator in the geographical survey shall be at an appropriate level of local detail and shall include sufficient information on the quality of service and parameters thereof and shall be treated in accordance with Regulation 98(12) to (14).

• (7) The Minister may, having consulted with the Regulator, designate an area with clear territorial boundaries where, on the basis of the information gathered by the Regulator and any forecast prepared under paragraph (3), it is determined that, for the duration of the relevant forecast period, no undertaking or public authority has deployed or is planning to deploy a very-high-capacity network or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds. The Regulator shall publish the designated areas.

• (8) Within a designated area, the Regulator, following a request by the Minister, shall invite undertakings and public authorities to declare their intention to deploy very-high-capacity networks over the duration of the relevant forecast period. Where this invitation results in a declaration by an undertaking or public authority of its intention to do so, the Regulator, following a request by the Minster, shall require other undertakings and public authorities to declare any intention to deploy very-high-capacity networks, or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds in this area. The Regulator shall specify the information to be included in such declarations, in order to ensure at least a similar level of detail as that taken into consideration in any forecast pursuant to paragraph (3). It shall also inform any undertaking or public authority expressing its interest whether the designated area is covered or likely to be covered by a next-generation access network offering download speeds below 100 Mbps on the basis of the information gathered pursuant to paragraph (4).

• (9) Measures pursuant to paragraph (8) shall be taken in accordance with an efficient, objective, transparent and non-discriminatory procedure, whereby no undertaking is excluded a priori.

• (10) The Regulator and other competent authorities with responsibility for the allocation of public funds for the deployment of electronic communications networks, for the design of national broadband plans, for defining coverage obligations attached to rights of use for radio spectrum and for verifying availability of services falling within the universal service obligations in their territory shall take into account the results of the geographical survey and of any designated areas in accordance with this Regulation.

• (11)
• (a) The Regulator shall supply the results of the geographical survey and any declaration referred to in paragraph (8) to the Minister, subject to the Minister ensuring the same level of confidentiality and protection of business secrets as required of the Regulator and where information is to be so supplied by the Regulator it shall inform the parties which provided the information.

• (b) The Regulator may, subject to the same requirements set out in subparagraph (a), supply the results of the geographical survey to other national regulatory or competent authorities.

• (12) The results of the geographical survey shall be made available to BEREC and the Commission upon their request and under the same conditions as referred to in paragraph (11).

• (13) If the relevant information is not available on the market, the Regulator shall make data from the geographical surveys which are not subject to commercial confidentiality directly accessible in accordance with the European Union (Open Data and Re-use of Public Sector Information) Regulations 2021 ( S.I. No. 376 of 2021 ) to allow for its reuse. The Regulator shall also, where such tools are not available on the market, make available information tools enabling end-users to determine the availability of connectivity in different areas, with a level of detail which is useful to support their choice of operator or service provider.

• (14) An undertaking or public authority shall not knowingly or grossly negligently provide misleading, erroneous or incomplete information in the context of the procedure referred to in paragraph (8).

• (15) An undertaking that fails to comply with paragraph (14) commits a hybrid offence.

Consultation and transparency mechanism

101.

• (2) Except in cases falling within Regulation 17(9) to (11) where the Regulator or any other competent authority intends to take a measure in accordance with these Regulations or intends to provide for a restriction under Regulation 27(3) to (8), which have a significant impact on a relevant market, the Regulator or other competent authority shall observe the procedures referred to in paragraphs (3) and (4).

• (3) Before taking a measure under paragraph (2) the Regulator or other competent authority shall publish the text of the proposed measure, give the reasons for it, including information as to which of its 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 period referred to in paragraph (3) shall have regard to the complexity of the matter and, except in exceptional circumstances, shall not be shorter than 30 days.

• (5) The Regulator or other competent authority, having considered any representations received under paragraph (3), may take the measure with or without amendment.

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

• (7) The Regulator or other competent authority shall, subject to the protection of the confidentiality of any information which it considers to be confidential, make the results of any consultation under this Regulation publicly available.

• (8) For the purposes of Regulation 19, the Regulator shall inform the RSPG at the moment of publication about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to Regulation 36(2) and (3) and relates to the use of radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with the Radio Spectrum Decision in order to enable its use for wireless broadband networks and services.

Consultation of interested parties

102.

• (2) The Regulator, and where relevant any other competent authority in coordination with the Regulator, shall establish a consultation mechanism, accessible for end-users with disabilities, ensuring that, when taking decisions on issues related to end-user and consumer rights concerning publicly available electronic communications services, due consideration is given to consumer interests in electronic communications.

• (3) Interested parties may develop, with the guidance of the Regulator, mechanisms involving consumers, user groups and service providers, to improve the general quality of service provision by, inter alia, developing and monitoring codes of conduct and operating standards.

• (4) Without prejudice to any law in the State in accordance with European Union law promoting cultural and media policy objectives such as cultural and linguistic diversity and media pluralism, the Regulator, and where relevant any other competent authority in coordination with the Regulator, may promote cooperation between undertakings providing electronic communications networks or services and sectors interested in the promotion of lawful content in electronic communications networks and services. Such cooperation may include coordination of the public interest information referred to in Regulation 88.

Notices regarding imposition of obligations

103.

• (2) The Regulator shall publish a notice in Iris Oifigiúil regarding how and where the information referred to in paragraph (1) will be available.

• (3) The Regulator shall submit a copy of a notice referred to in paragraph (1) to the European Commission at the time of publication.

Part 13 ENFORCEMENT

Directions

104.

• (a) general authorisation,

• (b) right of use for radio spectrum, or

• (c) right of use for numbers,

issue directions to an operator or undertaking to do or refrain from doing anything which the Regulator specifies in the direction.

Compliance monitoring and obligations

105.

• (2) The Regulator may require a person subject to the general authorisation or benefitting from rights of use for radio spectrum or rights of use for numbering resources to provide the Regulator with all information that the Regulator considers necessary to verify compliance by the undertaking with the conditions of the general authorisation, with rights of use for radio spectrum, with rights of use for numbering resources, with the specific obligations or with Regulation 29, in accordance with Regulation 99.

• (3) A person shall comply with any regulatory decision, determination, specification, requirement, direction, an obligation, term, condition or measure, under these Regulations, including —

• (a) one or more of its obligations under Regulation 6,

• (b) one or more of the conditions attached to its general authorisation,

• (c) one or more of the conditions attached to its rights of use for radio spectrum,

• (d) one or more of the conditions attached to its rights of use for numbering resources,

• (e) one or more of the specific obligations, or

• (f) an information requirement under Regulation 99.

Service of determinations, directions and notifications

106.

Prosecution of offences

107.

• (2) Proceedings for an offence under Regulation 96(10), relating to a breach of paragraph (2) of that Regulation, may be brought and prosecuted summarily by the Competition and Consumer Protection Commission.

• (3) An offence under these Regulations (other than a hybrid offence or an offence referred to in paragraph (2)) is one to which section 44 of the Act of 2002 applies.

Hybrid penalties

108.

• (a) on summary conviction, to a class A fine, or

• (b) on conviction on indictment, to a fine not exceeding €500,000.

Offences by bodies corporate

109.

• (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, secretary or other similar officer of the body, 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 that 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.

Suspension or withdrawal of authorisation, rights of use for radio spectrum or rights of use for numbers

110.

• (2) The Regulator shall notify an undertaking where the Regulator proposes to take action under paragraph (1) against it and shall allow the undertaking 28 days to make representations to the Regulator before taking the action.

• (3) Where the Regulator decides, in accordance with paragraph (1), that an undertaking is no longer to be authorised under Regulation 6 or decides to suspend or withdraw a right of use for radio spectrum or a right of use for numbering resources, the Regulator may also apply to the High Court for an order to pay to the Regulator such amount by way of financial penalty, as the Regulator proposes as appropriate in light of the serious or repeated breach, and an application for such order may include amounts by way of financial penalties in respect of periods of non-compliance where there has since been compliance.

• (4) In deciding on an application under paragraph (3), 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. In deciding the amount payable the High Court shall consider the circumstances of the non-compliance including —

• (a) its duration,

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

• (c) the submissions of the Regulator on the appropriate amount,

• (d) any representations made by the undertaking under paragraph (2), and

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

• (5) Any financial penalty ordered by the High Court to be paid by an undertaking under this Regulation shall be paid to and retained by the Regulator as income.

Part 14 AMENDMENT OF ACT OF 2002, CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL ARRANGEMENTS

Amendments – Act of 2002

111.

• (a) in section 2(1) —

• (i) by inserting after the definition of “Director” the following: “‘Electronic Communications Code Regulations’ means European Union (Electronic Communications Code) Regulations 2022 (S.I. No. 444 of 2022);”, and

• (ii) by substituting for the definition of “conditional access systems” the following: “‘conditional access system’ means any technical measure, authentication system or arrangement or both whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation;”,

• (b) in section 10(1), by inserting after paragraph (ad) the following:

• “(ae) to perform the tasks assigned to it under the Electronic Communications Code Regulations,”,

• (c) after section 11, by inserting the following:

“Objectivity and transparency of Commission in regulating under Electronic Communications Code Regulations

11A. For the purposes of performing its tasks under the Electronic Communications Code Regulations the Commission shall act objectively in a transparent manner and be accountable in accordance with the law of the European Union and shall not seek or take instructions from any other body in relation to tasks assigned to it under law implementing the law of the European Union.”,

• (d) in section 30 —

• (i) in subsection (1) —

• (I) by deleting “and” after “organisations,” in paragraph (b) and inserting after that paragraph the following:

• “(c) enabling the Commission to have adequate technical, financial and human resources to carry out the tasks assigned to it, and (d) enabling the Commission to have adequate financial and human resources to enable it to actively participate and contribute to BEREC,”, and

• (II) by substituting “Regulation 6 of the Electronic Communications Code Regulations” for “Regulation 4 of the European Communities (Electronic Communications Networks and Services)(Authorisation) Regulations 2003 ( S.I. No. 306 of 2003 )”,

• (ii) in subsection (1A), by substituting for paragraph

• (a) the following: “(a) cover, in total, only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation system, the licensing scheme for the licence concerned, the schemes for the grant of the rights of use for numbering resources and specific obligations, and may include costs for international co-operation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of any orders under section 3(6) (inserted by section 11 (c) of the Wireless Telegraphy Act 1972 ) of the Wireless Telegraphy Act 1926 or regulations under section 6 of that Act relating to apparatus for wireless telegraphy for the provision of an electronic communications network or service and administrative decisions, such as decisions on access and interconnection, and”,

• (iii) in subsection (1A)(b), by deleting “attendant” and substituting “associated”, and

• (iv) by inserting after subsection (1A) the following:

“(1B)(a) For the purposes of paragraph (1A)(b) and having regard to –

• (i) its objectives under section 12(1)(a),

• (ii) the impact of the levy on providers of electronic communications services and providers of electronic communications networks, and

• (iii) the need to minimise any distortion or restriction of competition in the market for the provision of the electronic communications concerned,

the Commission may make a determination that such class or classes of electronic communications provider referred to in subsection (1) are exempt from an order made under that subsection.

• (b) A determination by the Commission in accordance with paragraph (a) shall only be made:

  • (i) where the annual turnover of the provider is below an amount specified by the Commission, or

  • (ii) where the activities of the provider do not reach a market share specified by the Commission, or have a very limited territorial scope.

• (c) In this subsection, ‘turnover’ means in relation to a body corporate, the turnover of the body in the financial year of the body ending immediately before the financial year in which the determination referred to in paragraph (a) is made.”,

• (e) by inserting after section 31 the following:

“Report on state of electronic communication markets

31D. The Commission shall report annually to the Minister on the state of the electronic communications markets, on the decisions it issues, on its human, financial and technical resources and how those resources are attributed.”, and

• (f) in Part 2 of Schedule 1, by substituting for paragraphs (39) to (42) the following: “(39) the Electronic Communications Code Regulations;”.

Consequential amendments

112.

• (a) in Regulation 2(1), by substituting “Electronic Communications Code Regulations” for “Framework Regulations”,

• (b) in Regulation 2(2) —

• (i) by inserting after the definition of “EEA Agreement” the following: “‘Electronic Communications Code Regulations’ means European Union (Electronic Communications Code) Regulations 2022 (S.I. No. 444 of 2022);”,

• (ii) by deleting the definition of “Framework Regulations”,

• (iii) by substituting the following for the definition of “National Directory Database”:

“‘National Directory Database” means the record of all subscribers of voice communication services in the State, including those with fixed, personal or mobile numbers, who have not refused to be included in that record, kept in accordance with Regulation 95 of the Electronic Communications Code Regulations and these Regulations;”, and

• (iv) by substituting the following for the definition of “operator”:

“‘operator’ means a person required by the Regulator under Regulation 95(3) of the Electronic Communications Code Regulations to keep the National Directory Database within the meaning of that Regulation;”,

• (c) in Regulation 2(3), by substituting “Electronic Communications Code Regulations” for “Framework Regulations”,

• (d) in Regulation 10(b), by inserting the following after “112”:

“and any other national emergency number that may be specified by the Regulator,”,

• (e) by substituting for Regulation 12 the following:

“12. (1) A provider of number-based interpersonal communications services which attributes numbers from a numbering plan shall ensure that all its subscribers are, without charge —

• (a) informed, before they are included in any directory for which the provider provides relevant information in accordance with Regulation 95 of the Electronic Communications Code Regulations and in which their personal data can be included, about the purpose of such a directory and any further usage possibilities based on search functions embedded in electronic versions of that directory,

• (b) given the opportunity to determine whether their personal data are included in that directory, and

• (c) given the opportunity to determine which of their personal data are included in that directory to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory and to verify, correct or withdraw such data.

• (2) Any other person responsible for the collection and making available of a subscriber’s data for inclusion in any other directory of subscribers shall ensure that the subscribers are, without charge—

  • (a) informed, before they are included in any such directory in which their personal data can be included, about the purpose of such a directory and any further usage possibilities based on search functions embedded in electronic versions of the directory,

  • (b) given the opportunity to determine whether their personal data are included in that directory, and

  • (c) given the opportunity to determine which of their personal data are included in that directory to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory and to verify, correct or withdraw such data.

• (3)

  • (a) A provider of number-based interpersonal communications services which attributes numbers from a numbering plan shall ensure that its subscribers other than natural persons are, without charge, provided with the information referred to in paragraph (1)(a) and the opportunities referred to in paragraph (1)(b) and (c) notwithstanding the fact that the data may not be personal data.

  • (b) Any other person responsible for the collection and making available of data for inclusion in any other directory of subscribers shall ensure that subscribers other than natural persons are, without charge, provided with the information referred to in paragraph (2)(a) and the opportunities referred to in paragraph (2)(b) and (c) notwithstanding the fact that the data may not be personal data.

• (4) A subscriber may request the relevant provider or person to disregard or reverse the effect of a determination previously made by the subscriber to the undertaking or person under paragraph (2) or (3).

• (5) The relevant provider or person shall comply with any notification of a determination made, or deemed to have been made, to that provider or that person under paragraph (1), (2) or (4).”,

• (f) in Regulation 14 —

• (i) by substituting –

• (I) in paragraph (1), “A provider of number-based interpersonal communications services which attributes numbers from a numbering plan”, and

• (II) in paragraphs (2), (3) and (6)(a), “A provider referred to in paragraph (1)”,

for “An undertaking referred to in Regulation 19(1) or (2) of the Universal Service Regulations”,

• (ii) in paragraph (1)(b), “provider” for “undertaking”,

• (iii) by substituting in paragraph (4)(a) —

• (I) “A provider” for “An undertaking”, and

• (II) “the provider” for “the undertaking”, and

• (iv) by substituting in paragraph (6)(a) “95(3) of the Electronic Communications Code Regulations” for “19(4) of the Universal Service Regulations”, and

• (g) in Regulations 29 and 30, by inserting the words “or provider” after the word “undertaking” where it occurs.

• (6) The European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications)(Amendment) Regulations 2019 ( S.I. No. 347 of 2019 ) are revoked.

Transitional arrangements

113.

• (2) Licences, rights of use, or authorisations granted under the Act of 1926 or any instrument made under that Act in accordance with any provision of the 2011 Regulations, that were in force immediately before the commencement of these Regulations shall be construed as licences granted in accordance with these Regulations.

• (3) Any reference in the Act of 1926 or any instrument made under that Act to —

• (a) the Framework Regulations,

• (b) the Access Regulations,

• (c) the Authorisation Regulations, or

• (d) the Universal Service Regulations,

shall be read as a reference to these Regulations.

SCHEDULE 1 LIST OF CONDITIONS WHICH MAY BE ATTACHED TO GENERAL AUTHORISATIONS, RIGHTS OF USE FOR RADIO SPECTRUM AND RIGHTS OF USE FOR NUMBERING RESOURCES

Regulations 8, 9, 10, 15, 40

This Schedule provides for the maximum list of conditions which may be attached to general authorisations for electronic communications networks and services, except number-independent interpersonal communications services (Part A), electronic communications networks (Part B), electronic communications services, except number-independent interpersonal communications services (Part C), rights of use for radio spectrum (Part D), and rights of use for numbering resources (Part E)

A. General conditions which may be attached to a general authorisation

B. Specific conditions which may be attached to a general authorisation for the provision of electronic communications networks

C. Specific conditions which may be attached to a general authorisation for the provision of electronic communications services, except number-independent interpersonal communications services

D. Conditions which may be attached to rights of use for radio spectrum

E. Conditions which may be attached to rights of use for numbering resources

SCHEDULE 2 CRITERIA FOR DETERMINATION OF WHOLESALE VOICE TERMINATION RATES

Regulation 57

Principles, criteria and parameters for the determination of rates for wholesale voice termination on fixed and mobile markets referred to in Article 75(1) of the Directive:

• (a) rates shall be based on the recovery of costs incurred by an efficient operator; the evaluation of efficient costs shall be based on current cost values; the cost methodology to calculate efficient costs shall be based on a bottom-up modelling approach using long-run incremental traffic-related costs of providing the wholesale voice termination service to third parties;

• (b) the relevant incremental costs of the wholesale voice termination service shall be determined by the difference between the total long-run costs of an operator providing its full range of services and the total long-run costs of that operator not providing a wholesale voice termination service to third parties;

• (c) only those traffic-related costs which would be avoided in the absence of a wholesale voice termination service being provided shall be allocated to the relevant termination increment;

• (d) costs related to additional network capacity shall be included only to the extent that they are driven by the need to increase capacity for the purpose of carrying additional wholesale voice termination traffic;

• (e) radio spectrum fees shall be excluded from the mobile voice termination increment;

• (f) only those wholesale commercial costs shall be included which are directly related to the provision of the wholesale voice termination service to third parties;

• (g) all fixed network operators shall be considered to provide voice termination services at the same unit costs as the efficient operator, regardless of their size;

• (h) for mobile network operators, the minimum efficient scale shall be set at a market share not below 20%;

• (i) the relevant approach for asset depreciation shall be economic depreciation; and

• (j) the technology choice of the modelled networks shall be forward looking, based on an IP core network, taking into account the various technologies likely to be used over the period of validity of the maximum rate; in the case of fixed networks, calls shall be considered to be exclusively packet switched.

SCHEDULE 3 CRITERIA FOR ASSESSING CO-INVESTMENT OFFERS

Regulation 58(2)

When assessing a co-investment offer pursuant to Regulation 58(2), the Regulator shall verify whether the following criteria have at a minimum been met. The Regulator may consider additional criteria to the extent they are necessary to ensure accessibility of potential investors to the co-investment, in light of specific local conditions and market structure:

• (a) the co-investment offer shall be open to any undertaking over the lifetime of the network built under a co-investment offer on a non-discriminatory basis. The undertaking designated as having significant market power may include in the offer reasonable conditions regarding the financial capacity of any undertaking, so that for instance potential co-investors need to demonstrate their ability to deliver phased payments on the basis of which the deployment is planned, the acceptance of a strategic plan on the basis of which medium-term deployment plans are prepared, and so on;

• (b) the co-investment offer shall be transparent:

• (i) the offer shall be available and easily identified on the website of the undertaking designated as having significant market power;

• (ii) full detailed terms shall be made available without undue delay to any potential bidder that has expressed an interest, including the legal form of the co-investment agreement and, when relevant, the heads of term of the governance rules of the co-investment vehicle; and

• (iii) the process, like the road map for the establishment and development of the co-investment project shall be set in advance, shall be clearly explained in writing to any potential co-investor, and all significant milestones shall be clearly communicated to all undertakings without any discrimination.

• (c) The co-investment offer shall include terms to potential co-investors which favour sustainable competition in the long term, in particular:

• (i) All undertakings shall be offered fair, reasonable and non-discriminatory terms and conditions for participation in the co-investment agreement relative to the time they join, including in terms of financial consideration required for the acquisition of specific rights, in terms of the protection awarded to the co-investors by those rights both during the building phase and during the exploitation phase, for example by granting indefeasible rights of use (IRUs) for the expected lifetime of the co-invested network and in terms of the conditions for joining and potentially terminating the co-investment agreement. Non-discriminatory terms in this context do not entail that all potential co-investors shall be offered exactly the same terms, including financial terms, but that all variations of the terms offered shall be justified on the basis of the same objective, transparent, non-discriminatory and predictable criteria such as the number of end-user lines committed for.

• (ii) The offer shall allow flexibility in terms of the value and timing of the commitment provided by each co-investor, for example by means of an agreed and potentially increasing percentage of the total end-user lines in a given area, to which co-investors have the possibility to commit gradually and which is set at a unit level enabling smaller co-investors with limited resources to enter the co-investment at a reasonably minimum scale and to gradually increase their participation while ensuring adequate levels of initial commitment. The determination of the financial consideration to be provided by each co-investor needs to reflect the fact that early investors accept greater risks and engage capital sooner.

• (iii) A premium increasing over time shall be considered to be justified for commitments made at later stages and for new co-investors entering the co-investment after the commencement of the project, to reflect diminishing risks and to counteract any incentive to withhold capital in the earlier stages.

• (iv) The co-investment agreement shall allow the assignment of acquired rights by co-investors to other co-investors, or to third parties willing to enter into the co-investment agreement subject to the transferee undertaking being obliged to fulfil all original obligations of the transferor under the co-investment agreement.

• (v) Co-investors shall grant each other reciprocal rights on fair and reasonable terms and conditions to access the co-invested infrastructure for the purposes of providing services downstream, including to end-users, in accordance with transparent conditions which are to be made transparent in the co-investment offer and subsequent agreement, in particular where co-investors are individually and separately responsible for the deployment of specific parts of the network. If a co-investment vehicle is created, it shall provide access to the network to all co-investors, whether directly or indirectly, on an equivalence of inputs basis and in accordance with fair and reasonable terms and conditions, including financial conditions that reflect the different levels of risk accepted by the individual co-investors.

• (d) The co-investment offer shall ensure a sustainable investment likely to meet future needs, by deploying new network elements that contribute significantly to the deployment of very-high-capacity networks.

SCHEDULE 4 MINIMUM SET OF SERVICES WHICH ADEQUATE BROADBAND INTERNET ACCESS SERVICE IN ACCORDANCE WITH REGULATION 70(2) SHALL BE CAPABLE OF SUPPORTING

Regulation 70(2)

• (1) E-mail

• (2) search engines enabling search and finding of all type of information

• (3) basic training and education online tools

• (4) online newspapers or news

• (5) buying or ordering goods or services online

• (6) job searching and job searching tools

• (7) professional networking

• (8) internet banking

• (9) eGovernment service use

• (10) social media and instant messaging

• (11) calls and video calls (standard quality)

SCHEDULE 5 DESCRIPTION OF FACILITIES AND SERVICES REFERRED TO IN REGULATION 74 (CONTROL OF EXPENDITURE), REGULATION 97 (ADDITIONAL FACILITIES) AND REGULATION 90 (PROVIDER SWITCHING AND NUMBER PORTABILITY)

Regulations 74 and 97

Part A Facilities and services referred to in Regulations 74 and 97