STATUTORY INSTRUMENTS

S.I. No. 80 of 2003

REGULATIONS

entitled

European Communities (Electronic Communications Networks and Services) (Market Definition and Analysis) Regulations 2003

I. Dermot Ahern, Minister for Communications, Marine and Natural Resources in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No 27 of 1972 ) and for the purpose of giving effect to Articles 5(1), 15(3) and 16(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002¹ , hereby make the following regulations:

1.       These Regulations may be cited as the European Communities (Electronic Communications Networks and Services) (Market Definition and Analysis) Regulations 2003.

2.       (1)      In these Regulations --

“Commission” means Commission of the European Communities;

“Directive” means Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002¹ ;

“guidelines” means guidelines published by the Commission under Article 15(2) of the Directive for market analysis and the assessment of significant market power;

“recommendation” means the recommendation adopted by the Commission under Article 15(1) of the Directive on relevant product and service markets:

“Regulator” means Commission for Communications Regulation.

(2)      A word or expression which is used in these Regulations and which is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

(3)      In these Regulations, unless otherwise indicated --

 (a)    a reference to a Regulation is to a Regulation of these Regulations, and

 (b)    a reference to a paragraph is a reference to a paragraph of the Regulation in which the reference occurs.

3.       (1)      The Regulator shall, taking utmost account of the recommendation and the guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within the State, in accordance with the principles of competition law.

(2)      In the case of relevant markets which differ from those defined in the recommendation, the Regulator shall, subject to Article 7 of the Directive, define such markets including the geographical area within the State of such markets, taking utmost account of the recommendation and the guidelines and in accordance with the principles of competition law. The Regulator shall, as soon as practicable after defining such markets, publish, in such form as it may determine, notice of such market definition, together with the reasoning on which it is based, subject to the protection of the confidentiality of any information deemed to be confidential under Regulation 5(2).

(3)      The Regulator shall, in defining relevant markets referred to in paragraph (2), take account of comments received from interested parties within a period specified by the Regulator having regard to Article 7 of the Directive and to section 12(2) of the Communications Regulation Act 2002 ( No. 20 of 2002 ).

4.       The Regulator shall carry out an analysis of the relevant markets defined by the Regulator under Regulation 3, in co-operation, where appropriate, with the Competition Authority in accordance with an agreement under section 34 of the Competition Act 2002 ( No. 14 of 2002 ) and taking utmost account of the guidelines.

5.       (1)      For the purposes of these Regulations, the Regulator may request an undertaking providing electronic communications networks or services to provide the Regulator with all information, including financial information, necessary for the Regulator to carry out market definition and analysis under these Regulations and the Directive. The person shall provide the information promptly on request and to the timescales and level of detail required by the Regulator. The information requested by the Regulator shall be proportionate to the task of the Regulator under these Regulations. The Regulator shall give the reasons justifying its request for such information.

(2)      The Regulator shall maintain and accept as confidential any information provided under paragraph (1) by an undertaking providing electronic communications networks or services expressed by it to be confidential, except where the Regulator has good reason to consider otherwise.

6.       Where a person does not provide information promptly to the Regulator in accordance with Regulation 5, the Regulator may apply to the High Court for an order directing the provision of such information which is proportionate to the task of the Regulator under these Regulations and the High Court may make such order as it considers appropriate.

EXPLANATORY NOTE

(This note is not part of the instrument and does not purport to be a legal interpretation)

These Regulations transposes Articles 5(1), 15(3) and 16(1) of Directive 2002 21 EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)

The purpose of these Regulations is to enable the Commission for Communications Regulation (CCR) request undertakings providing electronic communications networks or services to provide the CCR with all information necessary for the CCR to undertake a market definition and analysis process.

Following the market definition and analysis process the CCR should be in a position to amend, impose or withdraw regulatory obligations when the new EU Regulatory Regime comes into effect on transposition of the substantive EU Regulatory Electronic Communications Regulation package into Irish Law.

¹ OJ No. L. 108, 24.4.02, p. 33.

¹ OJ No. L. 108, 24.4.02, p. 33.