Commission Recommendation of 23 July 2003 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (Text with EEA relevance) (notified under document number C(2003) 2647)
Date: 2003-07-23
Institutions: European Commission
Subjects: approximation of laws, electronic mail, regulation of telecommunications, telecommunications, transmission network

30.7.2003

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Official Journal of the European Union

L 190/13

COMMISSION RECOMMENDATION

of 23 July 2003

on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of
the European Parliament and of the Council on a common regulatory framework for electronic
communications networks and services

(notified under document number C(2003) 2647)

(Text with EEA relevance)

(2003/561/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Directive 2002/21/EC of the European Parlia-
ment and of the Council of 7 March 2002 on a common regu-
latory framework for electronic communications networks and
services (Framework Directive) (1) and in particular Article
19(1) thereof,

Whereas:

(1)

(2)

(3)

(4)

Under
the new regulatory framework for electronic
communications networks and services, national regula-
tory authorities have an obligation to contribute to the
development of the internal market by, inter alia, coop-
erating with each other and with the Commission in a
transparent manner
to ensure the development of
consistent regulatory practice and the consistent applica-
tion of the Directives making up the new regulatory
framework.

In order to ensure that decisions at national level do not
have an adverse effect on the single market or the objec-
tives pursued by the new regulatory framework, national
regulatory authorities must notify to the Commission
and other national regulatory authorities those draft
measures identified in Article 7(3) of Directive 2002/21/
EC (Framework Directive).

As an additional requirement, national regulatory autho-
rities must obtain Commission authorisation for obliga-
tions covered by the second subparagraph of Article 8(3)
of Directive 2002/19/EC of the European Parliament and
of the Council (Access Directive) (2), which constitutes a
separate process.

The Commission will give national regulatory authori-
ties,
if they so request, an opportunity to discuss any
draft measure, before formal notification thereof under
Article 7 of Directive 2002/21/EC (Framework Directive)
and Article 8(3) of Directive 2002/19/EC (Access Direc-
tive). If, pursuant to Article 7(4) of Directive 2002/21/
EC (Framework Directive), the Commission has indicated
to the national regulatory authority that it considers that

the draft measure would create a barrier to the single
market or if it has serious doubts as to its compatibility
with the Community law,
regulatory
authority concerned will be given an early opportunity
to express its views in relation to the issues raised by the
Commission.

the national

Directive 2002/21/EC (Framework Directive) lays down
certain binding time limits for the consideration of noti-
fications under Article 7.

In order to facilitate and ensure the effectiveness of the
in
cooperation and consultation mechanism set out
Article 7 of Directive 2002/21/EC (Framework Directive)
and in the interests of legal certainty, clear rules are
needed for the notification process and the examination
by the Commission of a notification and for calculating
the legal time limits referred to above.

It would likewise be beneficial
to clarify procedural
arrangements in the context of the second subparagraph
of Article 8(3) of Directive 2002/19/EC (Access Direc-
tive).

In order to simplify and expedite the examination of a
notified draft measure, it is desirable for national regula-
tory authorities to use a standard format for notifications
(summary notification form).

The European Regulators Group established by Commis-
sion Decision 2002/627/EC (3) has recognised the need
for these arrangements.

(5)

(6)

(7)

(8)

(9)

(10)

In order to comply with the objectives laid down in
Article 8 of Directive 2002/21/EC (Framework Direc-
tive), and in particular with the need to ensure the devel-
opment of consistent regulatory practices and the consis-
tent application of that Directive, it is essential that the
notification mechanism laid down in Article 7 thereof is
fully respected and as effective as possible.

(11)

The Communications Committee has delivered its
opinion in accordance with Article 22(2) of Directive
2002/21/EC (the Framework Directive),

(1) OJ L 108, 24.4.2002, p. 33.
(2) OJ L 108, 24.4.2002, p. 7.

(3) OJ L 200, 30.7.2002, p. 38.

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Official Journal of the European Union

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HEREBY RECOMMENDS THAT:

6. Notifications should include each of the following where

1. Terms defined in Directive 2002/21/EC (Framework Direc-
tive) and the specific directives have the same meaning
when used in this Recommendation. In addition:

— ‘recommendation on relevant markets’ means Commis-
sion Recommendation 2003/311/EC on relevant
product and service markets within the electronic
communications sector susceptible to ex ante regulation
in accordance with Directive 2002/21/EC of
the
European Parliament and of the Council on a common
regulatory framework for electronic communications
networks and services (1);

— ‘Notification’ means the notification to the Commission
by a national regulatory authority of a draft measure
pursuant
to Article 7(3) of Directive 2002/21/EC
(Framework Directive) or a request pursuant to the
second subparagraph of Article 8(3) of Directive 2002/
19/EC (Access Directive),
the
summary notification form as provided in this Recom-
mendation (Annex I).

accompanied

by

2. Notifications should be effected, where possible, by elec-
tronic mail with a request for acknowledgement of receipt.

Documents sent by electronic mail will be presumed to
have been received by the addressee on the day on which
they were sent.

Subject to point 6 below, notifications and supporting
documents will be registered in the order in which they
have been received.

3. Notifications will become effective on the date on which
the Commission registers them (‘date of registration’). The
date of registration will be the date on which a complete
notification is received by the Commission.

Notice will be given on the Commission's website and by
electronic means to all national regulatory authorities of
the date of registration of the notification, the subject
matter of the notification and of any supporting documen-
tation received.

4. Notifications should be in any of the official languages of
the Community. The accompanying summary notification
form (Annex) may be in a language other than that of the
draft measure in order to facilitate the effective consulta-
tion of all other national regulatory authorities.

Any comments made or decision adopted by the Commis-
sion pursuant to Article 7 of Directive 2002/21/EC (Frame-
work Directive) will be in the language of the notified draft
measure, translated where possible into the language used
in the summary notification form.

applicable:

(a) the relevant product or service market;

(b) the relevant geographic market;

(c) the main undertaking(s) active on the relevant market;

(d) the results of the analysis of the relevant market, in
particular the findings as to the presence or absence of
effective competition therein, together with the reasons
therefore;

(e) where appropriate, the undertaking(s) to be designated
as having, individually or jointly with others, signifi-
cant market power within the meaning of Article 14
of Directive 2002/21/EC (Framework Directive) and
relevant
the reasoning, evidence and/or any other
factual information in support of such designation;

(f) the results of prior public consultation carried out by

the national regulatory authority;

(g) the opinion issued by the national

competition

authority, where provided;

(h) elements to show that at the time of notification to the
Commission, appropriate steps have been taken to
notify the draft measure to national regulatory authori-
ties in all other Member States;

(Universal Service Directive) (2),

(i) in the case of notification of draft measures which fall
within the scope of Articles 5 or 8 of Directive 2002/
19/EC (Access Directive) or Article 16 of Directive
2002/22/EC of the European Parliament and of the
Council
the specific
regulatory obligation(s) proposed to address the lack of
effective competition in the relevant market concerned
or, in the case where a relevant market is found to be
effectively competitive and such obligations have
already been imposed in relation to it, the measures
proposed to withdraw those obligations.

7. Where a draft measure defines, for the purposes of the
market analysis, a relevant market which differs from those
in the Recommendation on relevant markets, national
regulatory authorities should provide sufficient reasoning
as to the criteria relied upon for such a market definition.

8. Notifications made in accordance with the second para-
graph of Article 8(3) of Directive 2002/19/EC (Access
Directive) should also contain adequate reasoning as to
why obligations other than those listed in Articles 9 to 13
thereof should be imposed on operators with significant
market power.

5. Draft measures notified by a national regulatory authority
should be accompanied by the documentation necessary
for the Commission to carry out its tasks. Draft measures
should be sufficiently reasoned.

9. Notifications falling within the scope of Article 8(5) of
should also
Directive 2002/19/EC (Access Directive)
contain adequate reasoning as
to why the intended
measures are required in order to comply with interna-
tional commitments.

(1) OJ L 114, 8.5.2003, p. 45.

(2) OJ L 108, 24.4.2002, p. 51.

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10. Notifications

the

that

include

applicable

information
within the meaning of point 6 will be presumed complete.
Where the information, including documents, contained in
the notification is incomplete in a material respect, the
Commission will within five working days of receipt
inform the national regulatory authority concerned and
specify the extent to which it considers the notification to
be incomplete. The notification will not be registered for
so long as the national regulatory authority concerned has
not provided the necessary information. In such cases for
the purposes of Article 7 of Directive 2002/21/EC (Frame-
work Directive) the notification will become effective on
the date on which the Commission receives the complete
information.

11. Without prejudice to point 6 above, following registration
of a notification,
in accordance with
the Commission,
Article 5(2) of Directive 2002/21/EC (Framework Direc-
tive), may seek further information or clarification from
the national regulatory authority concerned. National regu-
latory authorities should endeavour to provide the infor-
mation requested within three working days, where this is
readily available.

12. Where the Commission makes comments in accordance
with Article 7(3) of Directive 2002/21/EC (Framework
Directive), it will notify the national regulatory authority
concerned
and publish such
comments on its website.

electronic means

by

13. Where a national regulatory authority makes comments in
accordance with Article 7(3) of Directive 2002/21/EC
(Framework Directive),
those
comments by electronic means to the Commission and the
other national regulatory authorities.

communicate

shall

it

14. Where the Commission in applying Article 7(4) of Direc-
tive 2002/21/EC (Framework Directive) considers that a
draft measure would create a barrier to the single market
or it has serious doubts as to its compatibility with
Community law, and in particular the objectives referred
to in Article 8 of Directive 2002/21/EC (Framework Direc-
tive); or subsequently

(a) withdraws the objections mentioned above, or

(b) takes

a decision requiring a national

regulatory

authority to withdraw the draft measure,

it will notify the national regulatory authority concerned
by electronic means and post a notice on its website.

15. With regard to notifications made pursuant to the second
paragraph of Article 8(3) of Directive 2002/19/EC (Access
the Commission, acting in accordance with
Directive),
Article 14(2) thereof will normally take a decision author-
ising or preventing the national authority from adopting
the proposed draft measure within a period not exceeding
three months. The Commission may decide to extend this
period for a further two months in view of the difficulties
raised.

16. A national regulatory authority may at any time decide to
withdraw the notified draft measure,
in which case the
notified measure will be removed from the register. The
Commission will publish an appropriate notice to that
effect on its website.

17. Where a national regulatory authority that has received
comments from the Commission or another national regu-
latory authority made in accordance with Article 7(3) of
Directive 2002/21/EC (Framework Directive), adopts the
draft measure, on the Commission's request it shall provide
information to the Commission and other national regula-
tory authorities of the manner in which it took the utmost
account of the comments made.

18. When requested by a national regulatory authority, the
Commission will informally discuss a draft measure prior
to notification.

19. In accordance with Council Regulation (EEC, Euratom) No
1182/71 (1), any period of time referred to in Directive
2002/21/EC (Framework Directive) or in this Recommen-
dation will be calculated as follows:

(a) where a period expressed in days, weeks or months is
to be calculated from the moment at which an event
occurs, the day during which that event occurs shall
not be counted as falling within the period in question;

(b) a period expressed in weeks or in months shall end
with the expiry of whichever day in the last week or
month is the same day of the week or falls on the same
date as the day during which the event from which the
period is to be calculated occurred.
in a period
expressed in months the day on which it should expire
does not occur in the last month, the period shall end
with the expiry of the last day of that month;

If

(c) time periods shall include official holidays, Saturdays

and Sundays;

(d) working days means all days other than official and/or

public holidays, Saturdays and Sundays.

Where the time period would end on a Saturday, Sunday
or official holiday, it shall be extended until the end of the
first following working day. The list of official holidays as
determined by the Commission is published in the Official
Journal of the European Union before the beginning of each
year.

20. The Commission, together with the national regulatory
authorities, will evaluate the necessity of reviewing these
rules, in principle no earlier than 25 July 2004.

21. This Recommendation is addressed to the Member States.

Done at Brussels, 23 July 2003.

For the Commission

Erkki LIIKANEN

Member of the Commission

(1) OJ L 124, 8.6.1971, p. 1.

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Official Journal of the European Union

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ANNEX

FORM RELATING TO NOTIFICATIONS OF DRAFT MEASURES PURSUANT TO ARTICLE 7 OF DIRECTIVE
2002/21/EC (FRAMEWORK DIRECTIVE)

Introduction

(‘Summary Notification Form’)

This form specifies the summary information to be provided by national regulatory authorities to the Commission when
notifying draft measures in accordance with Article 7 of Directive 2002/21/EC (Framework Directive).

The Commission intends to discuss with national regulatory authorities issues related to the implementation of Article 7,
especially during pre-notification meetings. Accordingly, national regulatory authorities are encouraged to consult the
Commission on any aspect of this form and in particular on which kind of information they are requested to supply or
conversely the possibility to dispense with the obligation to provide certain information in relation to the market
analysis carried out by national regulatory authorities pursuant to Articles 15 and 16 of Directive 2002/21/EC (Frame-
work Directive).

Correct and complete information

information submitted by national regulatory authorities should be correct and complete and reproduced in a
All
summarised manner in the form prescribed below. The form does not intend to replace the notified draft measure but
should enable the Commission and the national regulatory authorities of other Member States to verify that the notified
draft measure does indeed contain, by reference to the information contained in the form, all information which is
necessary in order for the Commission to carry out its tasks under Article 7 of Directive 2002/21/EC (Framework Direc-
tive) within the time period prescribed therein.

The information required by this form should be set out in the sections and paragraph numbers of the form with cross-
references to the body of the draft measure where this information is to be found.

Language

The form should be completed in one of the official languages of the European Community and may be different from
the language used in the notified draft measure. Any opinion issued or decision taken by the Commission in accordance
with Article 7 of Directive 2002/21/EC (Framework Directive) will be in the language of the notified draft measure,
translated where possible into the language used in the summary notification form.

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SUMMARY NOTIFICATION FORM

SECTION 1

Market definition

Please state where applicable:

1.1. the affected relevant product/service market. Is this market mentioned in the recommendation on relevant markets?

1.2. the affected relevant geographic market;

1.3. a brief summary of the opinion of the national competition authority where provided;

1.4. a brief overview of the results of the public consultation to date on the proposed market definition (for example,
how many comments were received, which respondents agreed with the proposed market definition, which respon-
dents disagreed with it);

1.5. where the defined relevant market is different from those listed in the recommendation on relevant markets, a
summary of the main reasons which justified the proposed market definition by reference to Section 2 of the
Commission's Guidelines on the definition of the relevant market and the assessment of significant market
power (1), and the three main criteria mentioned in recitals 9 to 16 of the recommendation on relevant markets
and Section 3.2 of the accompanying Explanatory Memorandum.

SECTION 2

Designation of undertakings with significant market power

Please state where applicable:

2.1. the name(s) of the undertaking(s) designated as having individually or jointly significant market power.

Where applicable, the name(s) of the undertaking(s) which is (are) considered to no longer have significant market
power;

2.2. the criteria relied upon for deciding to designate or not an undertaking as having individually or jointly with others

significant market power;

2.3. the name of the main undertakings (competitors) present/active in the relevant market;

2.4. the market shares of the undertakings mentioned above and the basis of their calculation (e.g., turnover, number of

subscribers).

Please provide a brief summary of:

2.5. the opinion of the national competition authority, where provided;

2.6. the results of the public consultation to date on the proposed designation(s) as undertaking(s) having significant

market power (e.g., total number of comments received, numbers agreeing/disagreeing).

SECTION 3

Regulatory obligations

Please state where applicable:

3.1. the legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 9 to 13 of Directive

2002/19/EC (Access Directive));

3.2. the reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered
proportional and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC (Framework
Directive). Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is
to be found;

3.3.

if the remedies proposed are other than those set out in Articles 9 to 13 of Directive 2002/19/EC (Access Direc-
tive), please indicate which are the ‘exceptional circumstances’ within the meaning of Article 8(3) thereof which
justify the imposition of such remedies. Alternatively,
indicate the paragraphs, sections or pages of the draft
measure where such information is to be found.

(1) Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory frame-

work for electronic communications and services, OJ C 165, 11.7.2002, p. 6.

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SECTION 4

Compliance with international obligations

In relation to the third indent of the first subparagraph of Article 8(3) of Directive 2002/19/EC (Access Directive), please
state where applicable:

4.1. whether the proposed draft measure intends to impose, amend or withdraw obligations on market players as

provided for in Article 8(5) of Directive 2002/19/EC (Access Directive);

4.2. the name(s) of the undertaking(s) concerned;

4.3. which are the international commitments entered by the Community and its Member States that need to be

respected.