Commission Recommendation of 15 October 2008 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(2008) 5925) (Text with EEA relevance)
Date: 2008-10-15
Institutions: European Commission
Subjects: approximation of laws, competition law, electronic mail, single market, telecommunications

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RECOMMENDATIONS

COMMISSION

COMMISSION RECOMMENDATION

of 15 October 2008

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(2008) 5925)

(Text with EEA relevance)

(2008/850/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

obligations covered by the second subparagraph of
Article 8(3) of Directive 2002/19/EC of the European
Parliament and of the Council of 7 March 2002 on
access to, and interconnection of, electronic communi­
cations networks and associated facilities (2), which is a
separate process.

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

(4)

Whereas:

(1)

(2)

the regulatory framework for electronic com­
Under
munications networks and services, national regulatory
authorities are obliged to contribute to the development
of the internal market by cooperating with each other
and with the Commission in a transparent manner in
order to ensure the development of consistent regulatory
practice and the consistent application of the directives
making up the regulatory framework.

To ensure that decisions taken at national level do not
have an adverse effect on the single market or on the
objectives pursued by the regulatory framework, national
regulatory authorities must notify the Commission and
those draft
other national
measures
of Directive
2002/21/EC.

regulatory authorities of

in Article 7(3)

stipulated

(5)

(6)

(3)

As an additional requirement, national regulatory auth­
orities must obtain Commission authorisation for

7

The Commission will give national regulatory authorities,
if they so request, the opportunity to discuss any draft
measures, before formal notification of such measures
under Article
2002/21/EC and
of Directive
Article 8(3) of Directive 2002/19/EC. Where, pursuant
to Article 7(4) of Directive 2002/21/EC, 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 where it has serious doubts as to its
compatibility with Community law, the national regu­
latory authority concerned should be given an early
opportunity to express its views regarding the issues
raised by the Commission.

Directive 2002/21/EC lays down certain binding time
consideration of notifications under
for
limits
Article 7.

the

To ensure the effectiveness of cooperation and the
consultation mechanism set out
in Article 7 of
Directive 2002/21/EC and to guarantee legal certainty,
clear rules dealing with the main procedural aspects of
the notifications made under Article 7 were put in place
by Commission Recommendation 2003/561/EC of
23 July 2003 on notifications, time limits and consul­
tations provided for in Article 7 of Directive 2002/21/EC

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

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

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of the European parliament and of the Council on a
common regulatory framework for electronic communi­
and services (1). Recommendation
cations networks
2003/561/EC should be replaced by this Recommen­
and
view to further
dation with a
improving the notification process.

simplifying

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 (2), notification of such a draft
measure under Article 7 of Directive 2002/21/EC
should be made by means of the short notification form.

(7)

(8)

(9)

(10)

To give further guidance to national regulatory auth­
orities on the content of draft measures and to increase
legal certainty on the completeness of a notification,
certain minimum information should be provided on
what a draft measure should contain in order to be
properly assessed.

Account has to be taken of the need to ensure effective
assessment, on the one hand, and to simplify administra­
tion as far as possible, on the other hand. In this respect,
the notification mechanism should not involve any un­
necessary administrative burden on the national regu­
latory authorities. It would also be beneficial to clarify
procedural arrangements in the context of the second
subparagraph of Article 8(3) of Directive 2002/19/EC.

To help simplify the examination of a notified draft
measure and to make the process quicker, national regu­
latory authorities
for
notifications.

standard formats

should use

regulatory measures,

In order to improve the efficiency of the notification
mechanism, to increase legal certainty for national regu­
latory authorities and market players and to ensure
timely implementation of
is
desirable that a notification by a national regulatory
authority covering a market analysis also includes the
remedies proposed by the national regulatory authority
to address the market failures identified. Where the draft
measure relates to a market which is found to be compe­
in relation to that
titive and remedies already exist
market,
the
the notification should
proposals for withdrawing those obligations.

also include

it

(13) Where a national

regulatory authority carries out a
review of a market that has been found to be effectively
competitive in a previous review and finds once more
that this market is effectively competitive, the notification
should be made by means of the short notification form.

(14) National

the

labour,

remedies

authorities

amend
frequently
regulatory
technical details of
imposed to take
account of changes in economic indicators (such as
equipment,
inflation, cost of capital, property
rental rates, etc.), or to update forecasts or assumptions.
Changes or updates of details which do not change the
nature or the general scope of remedies (e.g. extension of
reporting obligations, details of
required insurance
coverage,
amounts of penalties, or delivery times)
should be notified by means of the short notification
form. Only material changes to the nature or scope of
the remedies that have an appreciable impact on the
market (such as price levels, amendments to the meth­
odologies used to calculate costs or prices, determination
should be notified by the standard
of glide paths)
notification procedure.

(15) With regard to certain markets (in particular, voice call
termination markets), national regulatory authorities may
come to the same conclusion as in a previous review and
wish to impose remedies on further operators (e.g. new
entrants) with a similar customer base or total turnover
to operators covered by a previous review which do not
materially differ from draft measures already notified. The
short notification form should be used for these draft
measures.

(11)

In general, a short notification form should be used for
certain categories of draft measures in order to reduce
the administrative burden on national regulatory auth­
orities and the Commission. However, notification of
these categories by way of
the standard notification
procedure remains possible.

(16) A draft measure notified by means of a short notification
form will in principle not give raise to comments by the
Commission to the national
regulatory authority in
accordance with Article 7(3) of Directive 2002/21/EC.

(12) Where

regulatory

a national

to
withdraw regulatory obligations in relation to markets
not
Recommendation
2007/879/EC of 17 December 2007 on relevant
electronic
and service markets within the
product

Commission

authority

included

intends

in

(17)

In order to increase transparency on a notified draft
measure and to facilitate the exchange of information
about such measures between national regulatory auth­
orities both the standard and the short notification forms
should contain a summarised description of the main
elements of the notified draft measure.

(1) OJ L 190, 30.7.2003, p. 13.

(2) OJ L 344, 28.12.2007, p. 65.

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(18)

(19)

The European Regulators Group for Electronic Com­
munications Networks
established by
Commission Decision 2002/627/EC (1) has recognised
the need for these arrangements.

and Services

date of registration of the notification, the subject matter of
the notification and
documentation
received.

supporting

any

To meet the objectives laid down in Article 8 of Directive
2002/21/EC, in particular the need to ensure consistent
regulatory practices and consistent application of that
notification
compliance with
Directive,
mechanism laid down in Article 7 is essential.

full

the

4. Notifications should be in any of the official languages of
the Community. The standard notification form (Annex I)
or the short notification form (Annex II) may be in an
language other than that of the draft measure in
official
order
to facilitate consultation by all other national
regulatory authorities.

(20)

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

HEREBY RECOMMENDS:

adopted by the
Any comments made or decisions
Commission
of Directive
7
to Article
pursuant
2002/21/EC will be in the language of the notified draft
measure, translated where possible into the language used
on the standard notification form.

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

(a) ‘recommendation on relevant markets’ means Re­
subsequent

commendation 2007/879/EC and any
Recommendation on relevant markets;

(b) ‘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 or a
request pursuant
second subparagraph of
Article 8(3) of Directive 2002/19/EC, accompanied by
the standard notification form or short notification
form as provided in this Recommendation (Annex I
and Annex II).

to the

2. Notifications should be made by electronic 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.

Notifications will be registered in the order in which they
are 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.

5. Draft measures notified by a national regulatory authority
should be accompanied by the documentation needed for
the Commission to carry out
its tasks. For those draft
measures that fall under point 6 below and are notified
by means of the short notification form, the Commission
does not need in principle any additional documentation to
carry out its tasks.

Draft measures should be duly substantiated.

6. The following draft measures should be made available to
the Commission by means of the short notification form
contained in Annex II:

(a) draft measures concerning markets which have been
removed from or have not been previously listed in
the Recommendation on relevant markets,
either
where the market is found to be competitive by the
national regulatory authority, or where the national
regulatory authority considers that the three cumulative
criteria referred to in point 2 of the Recommendation
on relevant markets for identifying markets that are
susceptible to ex ante regulation are no longer met;

(b) draft measures

concerning markets which, while
included in the Recommendation on relevant markets
in force, had been found to be competitive in a
previous market review, and remain competitive;

Notice will be given on the Commission’s website and by
electronic means to all national regulatory authorities of the

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

(c) draft measures that change the technical details of
previously imposed regulatory remedies and do not
have an appreciable impact on the market (e.g. annual
updates of costs and estimates of accounting models,
reporting times, delivery times); and

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(d) draft measures concerning a relevant market that has
already been analysed and notified in relation to other
undertakings, where the national regulatory authorities
imposes
remedies on other undertakings,
without materially changing the principles applied in
the previous notification.

similar

7. The Commission,

in close cooperation with the national
regulatory authorities, will monitor the practical conse­
quences of the short notification procedure with a view
to make any further adjustments as may be necessary or
add other categories of draft measures that should be
notified using the short notification form.

8. Draft measures not falling under point 6 should be made
available to the Commission by means of the standard
notification form set out in Annex I. The draft measures
notified should include each of
the following where
applicable:

(a) the relevant product or service market, in particular, a
description of the products and services to be included
in and excluded from the relevant market on the basis
of demand-side and supply-side substitutability;

(b) the relevant geographic market,

including a reasoned
analysis of the competitive conditions on the basis of
demand-side and supply-side substitutability;

(c) the main undertakings active on the relevant market;

(d) the results of the analysis of the relevant market,

these purposes,

in
particular the findings as to the presence or absence
together with the reasons
of effective competition,
the draft measure
therefore.
For
the market shares of
should contain an analysis of
the different undertakings and a reference to other
relevant criteria, as appropriate, such as barriers to
entry, economies of scale and scope, vertical integration,
control of infrastructure not easily duplicated, techno­
logical advantages or superiority, absence of or low
countervailing buying power, easy or privileged access
to capital markets/financial resources, overall size of the
undertaking, product/services
diversification, highly
developed distribution and sales network, absence of
potential competition and barriers to expansion;

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

(f)

the results of the prior public consultation carried out
by the national regulatory authority;

(g) the opinion issued by
authority, where provided;

the national

competition

(h) evidence that, at

the time of notification to the
Commission, appropriate steps had been taken to
notify the draft measures to the national regulatory
authorities in all other Member States;

(i)

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

in cases where a relevant market

the Council (1),

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

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

11. Notifications falling within the scope of Article 8(5) of
Directive 2002/19/EC should
also contain adequate
reasoning as to why the intended draft measures are
required to comply with international commitments.

12. Notifications made by means of the standard notification
procedure that include the applicable information within
the meaning of point 8 will be presumed to be complete.
Where the information, including documents, contained in
the notification is incomplete in any material respect, the
Commission will inform the national regulatory authority
concerned within five working days and specify to what
extent it considers the notification to be incomplete. The
notification will not be registered until the national regu­
latory authority concerned has provided the requisite infor­
In such cases, for the purposes of Article 7 of
mation.
Directive 2002/21/EC,
the notification will become
effective on the date on which the Commission receives
the complete information.

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

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13. Without prejudice to point 8 above, following registration
of a notification, the Commission, acting in accordance
with Article 5(2) of Directive 2002/21/EC, may seek
further information or clarification from the national regu­
latory authority concerned. National regulatory authorities
should endeavour to provide the information requested
within three working days, where this is readily available.

14. The Commission will verify whether or not

the draft
measure made available by means of a short notification
form falls within the categories listed under point 6. Where
the Commission considers this not to be the case, it will
inform the national regulatory authority concerned within
five working days
and ask the notifying regulatory
authority to submit the draft measure by means of the
standard notification procedure.

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

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

17. Where,

that

in application of Article 7(4) of Directive
a draft
the Commission considers
2002/21/EC,
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; or it subsequently withdraws its
objections, or takes a decision requiring a national regu­
latory authority to withdraw a draft measure, it will notify
the national regulatory authority concerned by electronic
means and post a notice on its website.

18. With regard to notifications made pursuant to the second
subparagraph of Article 8(3) of Directive 2002/19/EC, the
Commission, acting in accordance with Article 14(2) of
that directive, will normally take a decision authorising or
preventing the national regulatory 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.

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

another

20. Where a national regulatory authority adopts the draft
measure after receiving comments from the Commission
in
or
regulatory
accordance with Article 7(3) of Directive 2002/21/EC,
it
shall communicate to the Commission and other national
regulatory authorities of the manner in which it took the
utmost account of the comments made.

authority made

national

21. When requested by a national regulatory authority,

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

the Council (1), any period of

22. In accordance with Regulation (EEC, Euratom) No 1182/71
time referred to in
of
Directive 2002/21/EC 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) 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. Where, 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;

(c) time periods shall
and Sundays.

include official holidays, Saturdays

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

public holidays, Saturdays and Sundays.

Should a time period end on a Saturday, Sunday or an
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.

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

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23. The Commission, together with the national regulatory authorities, will evaluate the necessity of
reviewing this Recommendation as appropriate after the date established in the review of the regulatory
framework for the transposition by the Member States into national law.

24. This Recommendation is addressed to the Member States.

Done at Brussels, 15 October 2008.

For the Commission

Viviane REDING
Member of the Commission

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ANNEX I

Standard form relating to notifications of draft measures pursuant to Article 7 of Directive 2002/21/EC

(Standard notification form)

INTRODUCTION

The standard notification form specifies the summary information to be provided by national regulatory authorities to the
Commission when notifying draft measures under the standard notification procedure in accordance with Article 7 of
Directive 2002/21/EC.

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

CORRECT AND COMPLETE INFORMATION

All information submitted by national regulatory authorities should be correct and complete and summarised on the
standard notification form set out below. The standard notification form is not meant to replace the notified draft
measure, but it 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 standard notification
form, all the information needed for the Commission to carry out its tasks under Article 7 of Directive 2002/21/EC
within the time frame set therein.

The information required should be set out in the sections and paragraphs of the standard notification form, with cross-
references to the body of the draft measure where this information is to be found.

LANGUAGE

The standard notification 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 will be in the language of the notified draft measure,
translated where possible into the language used in the standard notification form.

Section 1

Market definition

Please state where applicable:

1.1. The relevant product/service market. Is this market mentioned in the Recommendation on relevant markets?

1.2. The 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 (e.g. how many
comments were received, which respondents agreed with the proposed market definition, which respondents
disagreed with it).

1.5. Where the relevant market is different from those listed in the Recommendation on relevant markets, a summary of
the main reasons justifying the proposed market definition by reference to Section 2 of the Commission guidelines
on market analysis and the assessment of significant market power under the Community regulatory framework for
electronic communications networks and services (1), and the three main criteria mentioned in recitals 5 to 13 of
the Recommendation on relevant markets and Section 2.2 of the accompanying Explanatory Note (2).

(1) OJ C 165, 11.7.2002, p. 6.
(2) Explanatory Note accompanying the Commission Recommendation 2007/789/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 communication networks and services, C(2007) 5406 published
at http://ec.europa.eu/information_society/policy/ecomm/doc/implementation_enforcement/article_7/sec_2007_1483_2.pdf

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Section 2

Designation of undertakings with significant market power

Please state where applicable:

2.1. The name of the undertakings designated as having, individually or jointly, significant market power.

Where applicable, the name of the undertakings considered no longer to have significant market power.

2.2. The criteria used to designate an undertaking as having significant market power, individually or jointly, or not.

2.3. The name of the main undertakings (competitors) active in the relevant market.

2.4. The market shares of the undertakings mentioned above and the basis for calculation of market share (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 undertakings 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).

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. Alternatively,
indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

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

Section 4

Compliance with international obligations

In relation to the third intend of the first subparagraph of Article 8(3) of Directive 2002/19/EC, 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.

4.2. The name of the undertakings concerned.

4.3. What international commitments entered into by the Community and the Member States are to be met.

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Short form relating to notifications of draft measures pursuant to Article 7 of Directive 2002/21/EC

ANNEX II

(Short notification form)

INTRODUCTION

The short notification form specifies the summary information to be provided by national regulatory authorities to the
Commission when notifying draft measures under the short notification procedure in accordance with Article 7 of
Directive 2002/21/EC.

It is not necessary to provide a copy of the draft regulatory measure or to attach any other document to the short
notification form. However, it is necessary to indicate the Internet reference through which the draft measure can be
accessible in the short notification form.

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