sou · GUB388 · 2007-01-01 00:00:00 — defined decisions be emphasised by such a requirement being incorporated into the provision regarding decisions on obligations in Chapter 8 Section 6 of ECA. The deciding factor should be that decisions are to be sufficiently clear so that both the obligated and entitled parties are aware of their rights and obligations. The aim of such a requirement is to further emphasise the fact that the deci- sions should, as far as possible, be able to be used as a basis for agreements between the obligated and the entitled parties. Yet another proposal to create further reason for PTS to define its decisions on obligations more precisely is that in its appropria- tion directions to PTS, the Government shall require the Agency to report the average time span between the decision being passed and its implementation for all the decisions on obligations taken each year. According to the Commission, one measure to make obligations more precise would be to allow civil law suits to be brought in connection with decisions on obligations. This possibility to bring action for damages will also draw the market players attention to the importance of PTS duty to make the obligations more precise. The Commission therefore proposes that a regulation be intro- duced specifying that if an operator deliberately or as a result of negligence takes a measure that is in breach of, or fails to take a measure that is necessary in order to comply with, an obligation under Chapter 4, Section 4 or Chapter 5 Sections 13-14 of ECA or ensuing from Chapter 5 Section 12 thereof, the aforesaid operator shall compensate for the damage thereby incurred. According to the Commission, the Government should task an independent expert to analyse how the and has worded its arguments relating to its decisions on mar- ket analysis and obligations, how these decisions, if necessary, could be improved and what, if any, legislative amendments might be necessary to bring about the desired improvements. To make a clear, formal distinction between decisions on obliga- tions and dispute resolution, the Commission proposes that it be made clear that decisions on obligations may not apply to the rela- tionship between certain parties; they shall relate to general obliga- tions for the obligated addressee, at the same time as they also apply for the benefit of all those for whom, according to the legis- lation, the decision constitutes a right. This will make the distinc- tion between supervision and dispute resolution clearer, since supervision is not only a question of whether the obligated party Official Government Reports 2006:88 complies with the obligations but also may result in an order to follow the law or decision on obligations. Dispute resolution, on the other hand, is a question of clarifying the conditions that shall apply between two parties on account of obligations according to the law or decisions that have been passed pursuant to the law. This may lead to clearer decisions on obligations, since it becomes obvious that these decisions shall be more precise and that no further obligations may be imposed as a result of dispute resolution. This is obvious as far as supervision is concerned, since supervision must always be a question of compliance with an obli- gation of some kind. The Commission therefore proposes that clarification shall be given in Chapter 8, Section 6 of the ECA of the fact that an obli- gation may not be restricted to the relationship between an under- taking with significant market power and one or more opposing parties, but shall apply generally in relation to all entitled parties covered by the decision. It is the Commissions opinion that the proposal for more pre- cisely defined decisions on obligations will lead to fewer disputes being the subject of dispute resolution. The dispute resolution process will thereby be streamlined, since the authority can estab- lish the terms that are to apply between certain specified parties by means of dispute resolution. It is crucial that the ECA is applied in a legally secure way in order to create good conditions for a well-functioning market. According to the Commission, it is therefore important that the obligations imposed under the act are determined in accordance with the proceedings that apply to decisions on obligations as regards consultation with market players, other authorities and Commission - and not in any other form. It is therefore important that dispute resolution in accordance with the ECA implies a legally secure interpretation of these decisions on obliga- tions. The wording must be crystal-clear that imposing new or extended obligations in connection with dispute resolution is out of the question. As regards how PTS organises its internal activities in relation to e.g. dispute resolution matters, the Commission feels that there is Official Government Reports 2006:88 no reason to impose a requirement on PTS to maintain an organisational division between the Agency's different functions. PTS should instead be able to organise itself in a way it sees most suitable in order to perform its tasks efficiently. The Commission does propose, however, that dispute resolution matters shall always be decided on presentation by an official who must be a of , in order to guarantee a high level of legal security. In disputes examined pursuant to the ECA, it is common for PTS to have to examine the issue of when, i.e. on which date, the dispute arose when a party requests a ruling to be applied retroac- tively, i.e. before the request was submitted to the Agency. In such cases, it is not uncommon for PTS decisions to involve the dispute being examined from the date when dispute resolution was requested at the Agency. PTS's application of the act presupposes therefore that a dispute has arisen when the request for dispute resolution is submitted to the Agency. PTS accepts any arrange- ment whereby the parties agree on the dispute having arisen at an earlier point in time. If they however disagree, the party requesting dispute resolution from an earlier point in time (retroactively) must provide evidence that the dispute did indeed arise at such a point in time, something which in many cases is difficult to do. There is also a danger of such an application of the act, since it risks encouraging parties to hurriedly request dispute resolution at PTS before they have exhausted all other possible ways of solving the dispute through commercial negotiations. The Commission therefore proposes that a special provision be incorporated into the ECA stating that the examination of a dis- pute may cover the time prior to the application being submitted to PTS as long as the applicant has beforehand requested negotiations with the opposing party on the issue but that such negotiations have either not taken place or have not resulted in an agreement on the issue. The examination may then include the time from whence the requested agreement or condition were to have applied, though at the earliest from the date a request for negotiations was made. The Commission ascertains that PTS is often able to notify a decision in dispute resolution cases within the statutory four- month deadline. This deadline is occasionally exceeded however due to the complexity and extent of individual cases. Exemption from the deadline can be granted for such cases under the act. Official Government Reports 2006:88 One common reason why things take a long time seems, however, to be that parties change their claims or present new claims at a very late stage in the proceedings. Neither is it uncom- mon for parties to repeatedly request deferment in order to submit their claims; the Commission cannot rule out the possibility that this is done in an attempt to procrastinate proceedings even fur- ther. A key factor in this context is that the opposing party in a dispute resolution case often has nothing to gain from a rapid resolution of the dispute, which is primarily in the interest of the applicant. In order to speed up dispute resolution proceedings under the ECA, they need to be regulated bearing in mind the fact that they involve parties with widely opposing individual interests. The Commission therefore proposes that provisions governing dispute resolution proceedings be incorporated into the ECA. One problem in a dispute resolution case can be that PTS does not receive the necessary background information from the parties. It is the Commissions view that the existing regulations do not give PTS sufficient authority to be able to request the necessary information and background material. The Commission therefore proposes that scope be provided for PTS to be able to order a party to submit the necessary background information. This order could be subject to an administrative fine. One important issue is obviously why court proceedings take such a long time. The Commission draws the conclusion that this is caused by extensive exchange of written correspondence and administration; when cases are ready for final ruling, they are set- tled relatively quickly in the courts. The Commission does not feel that the resources set aside by the administrative courts to deal with PTS cases are insufficient. On the contrary, it seems if any- thing that these cases are to a certain extent prioritised in relation to other cases which, pursuant to the law, are not to receive prior- ity treatment. This is particularly true of the County Administra- tive Court of and its established PTS unit. The Commission has considered whether or not it should instead be possible to appeal PTS cases to the Swedish Market Court as the first and only instance. Such an amendment would Official Government Reports 2006:88 make the appeal process more expedient. Another advantage of transferring cases to the Market Court is that economic experts would thenceforward be involved in the decisions and it is clear from the preparatory work of the ECA that SMP decisions should be taken based on competition law principles and methodology (Government 2002/03:110, p 275 - in Swedish). According to the Commission, one of the most compelling rea- sons for cases in the public administrative courts is, however, that they have accumulated considerable skills for dealing with such cases. Furthermore, strong arguments need normally to be put forward to change existing administrative regulations, especially if the teething troubles associated with reorganisation are likely to counteract the goal of speeding up the appeal process. Even though the Commission is convinced that such a change, with the Market Court being the first and only instance, would make the process quicker than it is today, the same effect can be achieved by amendments being made within the existing system. Furthermore, a change within the existing system is considerably easier to implement than if PTS cases were to be transferred to the Market Court. All things considered, the Commission feels that it should con- tinue to be possible to appeal PTS cases to the public administra- tive courts. The Commission feels that legal security can be upheld for PTS cases even if the Administrative Court of Appeal is the last instance. Reducing the number of appeal instances can shorten the time it takes for decisions pursuant to the ECA to gain legal force. The Commission therefore proposes that the scope for appealing PTS decisions all the way up to the Supreme Administrative Court be removed, and that the Administrative Court of Appeal be instead the last court instance for all PTS cases. The Administrative Court of Appeal shall be able to examine a case based on the same dispensation grounds as are currently applicable. Official Government Reports 2006:88 The Commission proposes that special members (economic experts) shall participate when the County Administrative Court and the Administrative Court of Appeal decide on issues relating to the identification of undertakings with significant market power on a particular market and issues relating to obligations for such undertakings. Deadlines for administration and adjudication To speed up the final rulings of PTS decisions on competition- promoting issues, the courts should be empowered to force such ruling through. Such scope is provided if the courts are given a deadline for when cases should be finally adjudicated, combined with deadlines for when the exchange of written correspondence should be concluded. The Commission proposed that a regulation be introduced stat- ing that appealed decisions in accordance with Chapter 8, Section 6 of the ECA must have been finally decided within six months after the expiry of the appeal period; the same deadline shall apply to appealed decisions. In the event of exceptional circumstances hin- dering final ruling, the deadline may be extended. The exchange of written correspondence in the County Administrative Court shall be deemed to be concluded four months after the expiry of the appeal period. The exchange of written correspondence in the Administrative Court of Appeal shall be considered concluded two months after the court has decided whether or not to grant leave to appeal. These deadlines can also be extended in the event of extenuating circumstances. The Commission also proposes that special preclusion regula- tions be incorporated into Chapter 8 of the ECA relating to administrative proceedings in the County Administrative Court and the Administrative Court of Appeal. New circumstances or new evidence shall only be invoked in the County Administrative Court when four months have elapsed since the expiry of the appeal period if the party is able to give probable cause why he wasn't able to invoke such circumstances or evidence at an earlier juncture. New circumstances or new evidence may only be invoked Official Government Reports 2006:88 in the Administrative Court of Appeal if there are special reasons for doing so. The Commission proposes that a court that is examining a stay of execution petition relating to a decision taken pursuant to the ECA shall pay special attention to the purpose of the act as is laid down in its portal paragraph in Chapter 1, Section 1. The County Administrative Court and the Administrative Court of Appeal shall be obliged to give reasons why a decision on a PTS ruling shall not apply until further notice. The Commission believes that the existing allocation of responsi- bility between the authorities as regards competition-promotion activities in the field of electronic communications works satisfac- torily and should therefore not be changed. The cooperation between PTS and the Authority should however increase to promote sustainable competition and to reduce regulatory uncertainty through improved decisions on obli- gations. As regards consultation between PTS and the Swedish Compe- tition Authority in SMP issues, the Commission proposes that PTS shall request written opinions from the Competition Authority in matters relating to Sections 21-22 of the Electronic Communica- tions Ordinance, i.e. concerning proposals for imposing obligations on an enterprise with significant market power in a particular mar- ket. The consultation shall be in connection with a draft proposal for a decision. A decision that deviates from the opinion of the Competition Authority shall include reasons for why the opinion has not been heeded. The Commission also proposes that PTS shall cooperate with the Competition Authority on a long-term strategy. The internal organisation of PTS The Commission feels that PTS is an efficient authority with a high level of skills within its remit. It has been brought to the Commis- sions attention that many market players feel the requirement placed on PTS to maintain a division of functions between regula- Official Government Reports 2006:88 tion tasks, supervision and dispute resolution activities leads to extra work and inefficiency. These players recommend that PTS be divided up per issue instead. Others feel however that it is not suitable for the same authority to exercise all these different func- tions, from inter alia a legal security point of view. The Commission makes the same assessment as regarding dis- pute resolution concerning the division of functions between regulatory decisions and supervisory decisions pursuant to the ECA. Bearing in mind that the same people make decisions in the various matters, the division of functions serves no purpose. To improve efficiency by realising the benefits of coordination, the Commission believes that PTS does not need to maintain an organisational division of the different functions within the Agency. PTS should instead be organised in a way it feels is most suitable to be able to carry out its various tasks most effectively. The Commission does believe however that there is reason to place more explicit demands on PTS in certain respects. The Government should for example give the Agency the task of pro- posing quantitative indicators to measure yearly development as regards overall goal achievement, consumer complaints, delays between decisions and their implementation as well as the quality of decisions. The Commission feels that there is a need for new strategic measures with the purpose to increase the clarity and predictability of PTS future actions. There should therefore be a requirement for a long-term strategy for the area of electronic communications. The Commission therefore proposes that the Government task the PTS to draft a long-term strategy in communication with the Authority in the area of electronic commu- nications at least every third year. The strategy should supply grounds for developing decisions on markets analyses and obliga- tions and for policy development on a national and an EU level. The strategy shall stretch over a period of five years and shall be annually reviewed. The Commission feels that the activities of PTS and the Com- petition Authority in the area of electronic communications shall continue to be financed by fees even in the future. Decisions as to the size of annual fees shall be taken by the Government. PTS shall collect fees and use them as it sees fit, with the exception of the funds needed by the Competition Authority for its participation in decisions on market analysis and obligations. Official Government Reports 2006:88 shall continue to be decided on and be at the disposal of PTS. The Government shall determine what proportion of the annual reve- nue shall be given to the Competition Authority for its participa- tion in accordance with the Ordi- nance. Both authorities shall report their resource use to the Government. The consequences of the proposals A basic idea behind the proposals presented in this report is that, taken together, they shall lead to quicker decision processes and a more efficient authority organisation. This in turn will reduce regulatory uncertainty and the time span between PTS decisions being passed and when they can be implemented. According to the Commission, this should have a positive impact on the way the markets function. Authority will function better and the will of enterprises to invest for the long term will increase. This will have positive economic effects and help improve con- sumer access to electronic communications. The Commissions assessment of the collective economic conse- quences is that PTS and the administrative courts will be able to reduce their costs. Enterprises, too, will need to set aside fewer resources for legal disputes. Authority, the pub- lic courts and the Government Offices will have slightly higher costs to bear. The decision process will be speeded up, which to a corresponding extent is expected to provide significant economic advantages in the form of lower prices and an increased and better supply of services. The total economic effects will therefore be both positive and significant, according to the Commission. 1Förslag till lag om ändring i lagen (2003:389) om elektronisk kommunikation Härigenom föreskrivs i fråga om lagen (2003:389) om elektro- nisk kommunikation dels att 7 kap. 10 § samt 8 kap. 6, 19, 21 och 22 §§ skall ha föl- jande lydelse, dels att 12 nya paragrafer, 7 kap. 10 b – g, och 18 §§ samt 8 kap. 23-27 §§, skall föras in i lagen, dels att nya rubriker skall föras in före 7 kap. 10 b, d och f §§ samt 8 kap. 23, 26 och 27 §§. Uppkommer det en tvist mellan dem som tillhandahåller elek- troniska kommunikationsnät eller kommunikationstjänster eller tillhörande tjänster i fråga om skyldigheter som följer av denna lag eller av föreskrifter, tillståndsvillkor eller beslut om förpliktelser som meddelats med stöd av lagen, får en part hänskjuta tvisten för avgörande av tillsynsmyndigheten. Myndigheten skall besluta i de frågor som tvisten gäller. Beslutet skall med- delas senast från det att begäran kom in till myndigheten, om inte är nödvändig med hänsyn till tvistens omfattning eller andra särskilda omständigheter. Prövningen får omfatta tiden innan ansökan kom in till myn- digheten, om sökanden innan ansökan kom in begärt förhand- lingar med motparten om tviste- frågan men förhandlingar inte har kommit till stånd eller inte har lett till att avtal träffats om tvistefrågan. Prövningen får då omfatta tiden från det begärda avtalet eller villkoret skulle ha börjat att gälla, dock tidigast från den dag då begäran om förhandlingar gjordes. Ansökan om prövning av tvist enligt 10 § skall ske skriftligen. Den skall innehålla uppgifter om 1. personnummer eller orga- nisationsnummer, 2. postadress, 3. telefonnummer, 4. förhållanden i övrigt av betydelse för delgivning med parten, 5. motsvarande uppgifter om motparten. Företräds sökanden av ställfö- reträdare skall motsvarande upp- gifter lämnas även om denne. Har sökanden vidtalat ett ombud att företräda denne, skall ombu- dets namn, postadress och tele- fonnummer anges. Ansökan skall även innehålla motsvarande upp- gifter om ställföreträdare eller ombud för motparten. Uppgifter om motparten behö- ver lämnas endast om uppgiften utan särskild utredning är till- gänglig för sökanden. Ändrade förhållanden skall av parten utan dröjsmål anmälas till tillsynsmyndigheten. I ansökan skall anges vad som yrkas samt de omständigheter som åberopas till stöd för yrkandet. Om sökanden yrkar att beslutet skall gälla för tid innan ansökan kom in till myndigheten, skall ansökan även innehålla uppgifter om när förhandling med mot- parten begärdes och vad begäran omfattade. I ansökan skall även anges om en uppgift i ansökan eller det som hör till den bör omfattas av sekretess enligt sekre- tesslagen (1980:100). Är ansökningshandlingen så ofullständig att den inte kan läg- gas till grund för prövning i sak, skall tillsynsmyndigheten före- lägga sökanden att avhjälpa bristen vid påföljd att ärendet annars inte tas upp till prövning. Detsamma gäller om handlingen inte uppfyller före- skrifterna i 10 b §, såvida inte bristen är av ringa betydelse för frågan om delgivning. Ansökningshandlingen och det som hör till den skall, med de begränsningar som gäller enligt 14 kap. 5 § sekretesslagen (1980:100), tillställas motparten. Motparten skall föreläggas att svara vid påföljd att ärendet ändå kan komma att avgöras. Motparten skall i svaret ange huruvida denne medger eller bestrider yrkandena i ärendet och, om yrkandena bestrids, skä- len för detta. skall besluta i de frå- gor som tvisten gäller. Beslutet skall meddelas senast från det att ansökan kom in till myndigheten, om inte är nödvändig med hänsyn till tvistens omfattning eller andra särskilda omständig- heter. Bestämmelserna i 27 och 28 §§ förvaltningslagen (1986:223) om omprövning av beslut skall inte tillämpas på tillsynsmyndighetens avgörande av en tvist.