Definición de las capacidades de producción

Chapters II and III o f the Framework Directive deal with National Regulatory Authorities. The Directive builds on the previous system7^

Article 3 reinforces the concept o f national independent regulators by prescribing that National Regulatory Authorities ("NRAs") must be legally distinct from or functionally independent o f all organisations providing telecommunication networks, equipment or services, and in addition introduces a requirement o f impartial decision making. The right o f appeal to an independent body must be provided in order to allow a challenge o f any decision by NRAs. A notable provision is that o f Article 5, which establishes the right o f NRAs to collect information from market players, but ensures that the information gathering is proportionate and justified. In addition it allows the Commission to ask NRAs to provide information for the Commission to carry out its task under the Treaty. The NRAs are bound to the regulatory principles set out at EU level.

Chapter III o f the Framework Directive (Articles 7 to 12) focuses o f the N RA ’s tasks and duties and implicitly rationalises the existing set o f rules.^® The NRAs are placed under an obligation to follow the regulatory principles which reflect those set out in the 1999 Communications Review set out above. It requires NRAs to manage the radio spectrum efficiently, introduces the right for the NRAs to permit trading o f frequency

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For a critical analysis o f the institutional aspects o f communications regulation see D. Geradin, “Institutional Aspects o f EU Regulatory Reforms in the Telecommunications Sector: an Analysis o f the Role o f National Regulatory Authorities”, 1 Journal o f Network Industries (2000), 5.

The existing Interconnection Directive permits the NRAs to set conditions to be included in interconnection agreements concluded within their jurisdiction. These conditions relate to dispute resolution, publication/access to interconnection agreements, equal access and number portability, facility sharing, allocation and use o f numbering resources, end-to-end quality o f service universal service and contributions. The Directive also encourages the inclusion in agreements of conditions relating to the services to be provided, terms o f payment, points o f interconnect, technical standards interoperability tests, intellectual property rights, liability, duration, alterations to network/services, equal access, facility sharing, ancillary services, traffic management, maintenance and quality confidentiality and training o f staff. The conditions may also be based on "essential requirements" stated in die Directive to be security o f network operations, maintenance o f network integrity, interoperability of services and protection o f data. NRAs may also: (a) intervene on their own initiative or if requested by an operator to specify issues which may be covered in an interconnection agreement or conditions to be observed by one or more parties to an interconnection agreement; (b) require changes to be made to interconnection agreements already concluded where justified to ensure effective competition and/or interoperability o f services for users; (c) set time limits within which negotiations on interconnection agreements are to be completed; (d) inspect all interconnection agreements; (e) when requested by either party, take steps to resolve interconnection disputes within six months o f a request, resolving that dispute in a way which represents a fair balance between the legitimate interest o f both parties; and (f) require organisations to interconnect their facilities in order to protect essential public interests and, where appropriate, to set terms o f interconnection.

assignment and sets out a number o f obligations in respect o f management o f numbering allocation.**

Articles 10 and 11 deal respectively with the rights o f way, facility sharing and co- locations. These provisions show continuity with the existing system under the Interconnection Directive. This already requested that NRAs encourage the sharing o f facilities and/or property between Operators providing public telecommunications networks and/or publicly available telecommunication services with rights over public or private land, particularly where essential requirements deprive other operators o f access to viable alternatives. Article 11 recognises (as indeed Article 11 o f the Interconnection Directive did) that agreements for facility sharing must normally be a matter for commercial and technical agreement, but the NRAs may intervene to resolve disputes in the same way they do for interconnection agreements. Member States may impose the facility and/or property sharing arrangements (including rules for apportioning cost) but only after an appropriate period o f public consultation during which all interested parties must be given an opportunity to express their views.

Article 12 maintains the requirements o f the previous regime to the effect that undertakings with special or exclusive rights in other markets maintain accounting separation between these activities and their activities in relation to the provision o f electronic telecommunications and s e r v i c e s .This is clearly aimed at avoiding and monitoring cross-subsidisation practices. Member States may choose not to apply these requirements where the annual turnover o f the operator concerned is less than Euro 50 million. Other accounting separation rules apply in relation to interconnection and network access. This provision is to be read in conjuction with Article 10 o f the Competition Directive which mandates accounting separation for undertakings which are granted special or exclusive rights in relation to areas other than electronic communications.*^

** See more specifically paragraph 8.3 below.

*^ See previously Article 8 o f the Services Directive (as amended); and see also for internal separation Article 11 o f the Access and Interconnection Directive below.

*^ Accounting separation in relation to broadcasting is covered by so-called Transparency Directive, Commission Directive 80/723/EEC, OJ 1980 L 195; amended by Commission Directive 85/41/EEC, OJ 1985 L 229 and Commission Directive 93/84/EEC, OJ 1993 L 254; and Commission Directive 2000/52/EC o f 26 July 2000 amending Directive 80/723/EEC

Chapter H Antonio F. Bavasso

Under the Interconnection Directive Member States had to ensure the provision o f adequate numbers and numbering ranges. National numbering plans were made subject to the N RA s’ control, in order to guarantee independence from the operators. Number allocation procedures must be transparent, equitable and timely, and allocation must be objective, transparent and non-discriminatory. All main elements o f national numbering plans must be published. These rules are carried forward in Article 9 o f the New Framework Directive which also requires NRAs to ensure that all non-geographic (e.g. freephone, premium rate) numbers can be reached by all users in the Community, except where the called party has chosen to limit access for commercial reasons. Number portability is dealt with under the Universal Services and Users Right Directive.

Finally, Chapter IV contains a number o f general provisions which are common to more than one Directive in the regulatory framework. The most significant o f these for the purposes o f this work concern the new test o f Significant Market Power (Article 13) and the procedure for market analysis which is to be used by NRAs in making their determinations concerning regulatory obligations (Article 14). Further provisions o f Chapter IV concern such matters as standardistation, harmonisation, dispute resolution, comitology and information exchange.