Recommendation of the EFTA Surveillance Authority No 193/04/COL of  14 July 2004  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
Date: 2004-07-14
Institutions: EFTA Surveillance Authority
Subjects: electronic mail, exchange of information, regulation of telecommunications, service, telecommunications, transmission network

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EUROPEAN ECONOMIC AREA

EFTA SURVEILLANCE AUTHORITY

RECOMMENDATION OF THE EFTA SURVEILLANCE AUTHORITY

No 193/04/COL

of 14 July 2004

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

THE EFTA SURVEILLANCE AUTHORITY,

Having regard to the Agreement on the European Economic
Area (1),

Having regard to the Agreement between the EFTA States on
the establishment of a Surveillance Authority and a Court of
Justice, and in particular Article 5(2)(b) thereof,

Having regard to the Act referred to at point 5cl of Annex XI to
the EEA Agreement and as adapted to the Agreement by
Protocol 1 thereto and by the sectoral adaptations contained
in Annex XI to that Agreement (Directive 2002/21/EC of the
European Parliament and of the Council on a common regulatory
framework for electronic communication networks and services), and
in particular Article 19(1) thereof,

Whereas:

(1)

(2)

Under
the new regulatory framework for electronic
communications networks and services, national regu-
latory authorities have an obligation to contribute to
inter alia,
the development of the internal market by,
cooperating with each other and with the Authority in
a transparent manner to ensure the development of
consistent regulatory practice and the consistent appli-
cation 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 functioning of the EEA
Agreement or the objectives pursued by the new regu-
latory framework, national regulatory authorities must
notify to the EFTA Surveillance Authority (hereinafter

(1) Hereinafter referred to as the EEA Agreement.

(3)

(4)

(5)

(6)

the Authority) and other national regulatory authorities
within the European Economic Area (EEA) those draft
measures
of Directive
in Article
2002/21/EC (Framework Directive).

identified

7(3)

As an additional requirement, national regulatory autho-
rities must obtain the Authority's authorisation for obli-
gations covered by the second subparagraph of Article
8(3) of Directive 2002/19/EC of the European Parliament
and of the Council (Access Directive), referred to at point
5cj of Annex XI to the EEA Agreement and as adapted to
the Agreement by Protocol 1 thereto and by the sectoral
adaptations contained in Annex XI to that Agreement,
which constitutes a separate process.

7

2002/21/EC

of Directive

The Authority will give national regulatory authorities, if
they so request, an opportunity to discuss any draft
formal notification thereof under
measure, before
(Framework
Article
Directive) and Article 8(3) of Directive 2002/19/EC
to Article 7(4) of
(Access Directive).
If, pursuant
the
Directive
Authority has
regulatory
authority that it considers that the draft measure would
create a barrier to the functioning of the EEA Agreement
or if it has serious doubts as to its compatibility with the
EEA law, the national regulatory authority concerned will
be given an early opportunity to express its views in
relation to the issues raised by the Authority.

2002/21/EC (Framework Directive),
indicated to the national

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

7

of Directive

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

2002/21/EC

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(7)

(8)

(9)

(10)

(11)

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

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

By common accord between the EFTA States, the English
language is to be used as the working language for all
communications between the EFTA States and the
Authority. This is without prejudice to the rights of
private parties and undertakings to submit documents
in any of the EEA languages, as provided for by the
EEA Agreement.

— ‘Recommendation on relevant markets’ means

the
Authority's Recommendation 194/04/COL on relevant
product and service markets within the electronic
communications sector susceptible to ex ante regulation
the
in accordance with Directive 2002/21/EC of
European Parliament
the Council on a
and of
common regulatory framework for electronic commu-
nications networks and services;

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

8

2002/21/EC

of Directive

In order to comply with the objectives laid down in
Article
(Framework
Directive), and in particular with the need to ensure
the development of consistent regulatory practices and
the
is
essential that the notification mechanism laid down in
Article 7 thereof is fully respected and as effective as
possible.

that Directive,

application of

consistent

it

In order to allow for a consistent application of the new
regulatory regime across the whole of the EEA and to
reap the full benefits of the cooperation between the
national regulatory authorities,
it is vital that the flow
of
information between both the EFTA and the EC
pillar of the EEA is ensured. A specific adaptation to
Article 7(3) of Directive 2002/21/EC (Framework
contained in EEA Joint
Directive)
effect
‘The
Committee Decision No 11/2004 provides that
exchange of information between the national regulatory
authorities of the EFTA States on the one hand and the
national regulatory authorities of the EC Member States
on the other hand shall pass
through the EFTA
Surveillance Authority and the Commission.’

to this

2. Notifications should be effected, where possible, by elec-

tronic means.

The Authority will operate an electronic system to receive
In this case, national regulatory authorities
notifications.
shall use this system exclusively.

Documents sent by electronic means will be presumed to
have been received by the addressee on the day on which
they were sent or submitted to the electronic system.

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

(12)

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

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

HEREBY RECOMMENDS THAT:

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

specific directives have

the

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

the notification,

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4. Draft national measures, together with the reasoning on
which the measure is based, as well as the summary noti-
fication form, should be in the English language.

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

6. Notifications should include each of the following where

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 therefor;

(e) where appropriate, the undertaking(s) to be designated
as having, individually or jointly with others, significant
market power within the meaning of Article 14 of
Directive 2002/21/EC (Framework Directive) and the
reasoning, evidence and/or any other relevant 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
authority, where provided;

the national

competition

(h) elements to show that at the time of notification to the
Authority, appropriate steps have been taken to notify
the draft measure to national regulatory authorities in
all other EEA EFTA States, to the extent any electronic
system operated by the Authority does not ensure such
notification;

the Council

(Universal Service Directive) (1),

the
of
specific regulatory obligation(s) proposed to address
the lack of effective competition in the relevant
market concerned or,
in the case where a relevant
is found to be effectively competitive and
market
already been imposed in
such obligations have
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
in the Recommendation on relevant markets,
those
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
paragraph 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.

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

reasoning as

to why the

incomplete

in a material

10. Notifications that include the applicable information within
the meaning of point 6 will be presumed complete. Where
including documents, contained in the
the information,
notification is
the
Authority will within five working days of receipt inform
the national regulatory authority concerned and specify the
extent
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 (Framework
Directive) the notification will become effective on the date
on which the Authority receives the complete information.

to which it considers

respect,

(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

(1) Directive 2002/22/EC of the European Parliament and of the Council of 7
March 2002 on universal service and users' rights relating to electronic
communications networks and services (Universal Service Directive), as
referred to at point 5cm of Annex XI to the EEA Agreement and
as adapted by Protocol 1 thereto and by the sectoral adaptations
contained in Annex XI to that Agreement.

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11. Without prejudice to point 6 above, following registration
of a notification, the Authority, in accordance with Article
5(2) of Directive 2002/21/EC (Framework Directive), may
seek further information or clarification from the national
regulatory authority concerned. National regulatory autho-
rities
information
requested within three working days, where this is readily
available.

should endeavour

to provide

the

7(3)

12. Where the Authority makes comments in accordance with
2002/21/EC (Framework
it will notify the national regulatory authority
such

Article
Directive),
concerned
by
comments on its website.

electronic means

of Directive

publish

and

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

communicate

shall

it

14. Where the Authority in applying Article 7(4) of Directive
2002/21/EC (Framework Directive) considers that a draft
measure would create a barrier to the functioning of the
EEA Agreement or it has serious doubts as to its compat-
ibility with EEA law, and in particular
the objectives
referred to in Article 8 of Directive 2002/21/EC
(Framework Directive); or subsequently

(a) withdraws the objections mentioned above, or

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
Authority will publish an appropriate notice to that effect
on its website.

17. Where a national regulatory authority that has received
comments from the Authority 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 Authority's request it shall provide
information to the Authority and other national regulatory
authorities of the manner in which it took the utmost
account of the comments made.

18. When requested by a national regulatory authority,

the
Authority will informally discuss a draft measure prior to
notification.

19. Any period of time referred to in Directive 2002/21/EC
(Framework Directive) or in this Recommendation 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) 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.

(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

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

(c)

time periods shall
include public holidays, Saturdays
and Sundays, save where these are expressly excluded
or where the periods are expressed in working days;

(d) public holidays means all days designated as such by

the EFTA State concerned or by the Authority;

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(e) working days means all days other

than public

holidays, Saturdays and Sundays.

20. The Authority, together with the national regulatory autho-
rities, will evaluate the necessity of reviewing these rules, in
principle no earlier than 1 September 2005.

Where the time period would end on a Saturday, Sunday or
public holiday, it shall be extended until the end of the first
following working day.

21. This Recommendation is addressed to the EFTA States.

Done at Brussels, 14 July 2004.

The Authority publishes a list of public holidays designated
by the EFTA States and by the Authority each year in the
EEA Supplement to the Official Journal of the EU. The EFTA
States
to the
Authority upon request.

transmit a list of public holidays

shall

For the EFTA Surveillance Authority

Hannes HAFSTEIN
President

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ANNEX

FORM RELATING TO NOTIFICATIONS OF DRAFT MEASURES PURSUANT TO ARTICLE 7 OF DIRECTIVE
2002/21/EC (FRAMEWORK DIRECTIVE)
(‘Summary Notification Form’)

Introduction

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

The Authority 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
Authority 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 (Framework
Directive).

Correct and complete information

All
information submitted by national regulatory authorities should be correct and complete and reproduced in a
summarised manner in the form prescribed below. The form does not intend to replace the notified draft measure
but should enable the Authority and the national regulatory authorities of other EEA 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 Authority to carry out its tasks under Article 7 of Directive 2002/21/EC (Framework Directive) 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.

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
respondents 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
Authority'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 12 to 19 of the Recommendation on relevant markets.

(1) Authority guidelines on market analysis and the assessment of significant market power under the Community regulatory framework

for electronic communications and services.

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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).

Please state where applicable:

SECTION 3

Regulatory obligations

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 Directive),
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.

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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 into by the EFTA State that need to be respected.