S.I. No. 109/1998:

EUROPEAN COMMUNITIES (LEASED LINES) REGULATIONS, 1998

EUROPEAN COMMUNITIES (LEASED LINES) REGULATIONS, 1998

I Mary O'Rourke, Minister for Public Enterprise, 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 Council Directive 92/44/EEC of 5 June 1992 ⁽¹⁾ as amended by Commission Decision 94/439/EC⁽²⁾ and Directive 97/51/EC of 6 October, 1997 of the European Parliament and of the Council ⁽³⁾ hereby make the following regulations:

⁽¹⁾ O.J. No. L165/27 19.6.92.

⁽²⁾ O.J. No. L18¼0 15.7.94.

⁽³⁾ O.J. No. L295 23 29.10.97.

1. (1) These Regulations may be cited as the European Communities (Leased Lines) Regulations, 1998.

(2) These Regulations shall come into operation on the first day of May, 1998.

2. The European Communities (Application of Open Network Provision to Leased Lines) Regulations, 1994 ( S.I. No. 328 of 1994 ) are hereby revoked.

3. (1) In these Regulations, except where the context otherwise requires-

"the Commission" means the Commission of the European Communities;

"Council Directive 92/44" means Council Directive 92/44/EEC of 5 June 1992¹

¹ O.J. No. L165/27 19.6.92

"Commission Decision 94/439" means Commission Decision 94/439/EC of 15 June 1994²;

² O.J. No. L 18¼0 15.5.94

"decision" means a decision of the Director made under these Regulations;

"direction" means a direction of the Director made under these Regulations;

"Directive 97/51" means Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997³;

³ O.J. No. L 295/23 25.10.97

"the Director" means the Director of Telecommunications Regulation;

"leased lines" means the telecommunications facilities which provide for transparent transmission capacity between termination points and which do not include on-demand switching (switching functions which the user can control as part of the leased line provision);

"imposition" means an imposition made by the Director under Regulation 11(6);

"notified organisation" has the meaning assigned to it by Regulation 6;

"offering" means a type or class of leased lines with specified technical characteristics;

"organisation" means a person authorised under section 87 or section 111 of the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983) to provide leased lines.

(2) A word or expression that is used in these Regulations and is also used in Council Directive 92/44, Commission Decision 94/439, Directive 97/51 or Council Directive 90/387/EEC of 28 June 1990⁴ on the establishment of the internal market for telecommunications services through the implementation of open network provision shall, unless the context otherwise requires, have the same meaning in these Regulations that it has in such Council Directives, Commission Decision and Directive.

⁴ O.J. No. L192/1 24.7.90

(3) In these Regulations -

(a) a reference to a Regulation or a Schedule is a reference to a Regulation of or a Schedule to these Regulations unless it is indicated that reference to some other Regulation or Schedule is intended, and

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

4. (1) The Director shall ensure that at least one organisation is obliged to provide leased lines at every point in the territory of the State.

(2) For the purposes of paragraph (1) the Director may issue a direction to an organisation requesting that organisation to provide, at any point within a specific geographic area, a type of leased line that is specified in Annex II, as amended by Article 1 of Commission Decision 94/439, of Council Directive 92/44.

(3) Where there is no organisation with significant market power in the relevant leased lines market, the Director may issue a direction under paragraph (2) to an organisation that, pursuant to a determination under Regulation 5, does not have significant market power in accordance with that Regulation.

(4) An organisation which fails to comply with a direction issued under paragraph (2) shall be guilty of an offence.

5. (1) For the purposes of these Regulations, but subject to paragraphs (2) and (3), an organisation shall be presumed to have significant market power when it has a share of more than 25 per cent. of the relevant leased lines market in the State within which the organisation is authorised, pursuant to the Postal and Telecommunications Services Act, 1983 , to provide leased lines.

(2) The Director shall assess the relevant leased lines market on the basis of the type of leased line offered in a particular geographic area which may include the whole or part of the territory of the State.

(3) The Director shall determine the methodology and means by which market share is to be measured for the purposes of these Regulations and shall publish such methodology and means in the Iris Oifigiuil.

(4) Notwithstanding the provisions of paragraph (1), the Director may determine that-

(a) an organisation with a market share of less than 25 per cent. in the relevant leased lines market has significant market power and any such organisation shall, for the purposes of these Regulations, be designated by the Director as having significant market power, and

(b) an organisation having a market share of more than 25 per cent. in the relevant leased lines market does not have significant market power.

(5) In making a determination under paragraph (4) the Director shall have regard to-

(a) the ability of the organisation to influence leased lines market conditions,

(b) the turnover of the organisation concerned relative to the size of the relevant market,

(c) the access of the organisation to financial resources, and

(d) the experience of the organisation in providing products and services in the market.

6. (1) The Director shall publish in each of the national newspapers and in the Iris Oifigiúil details of licensing and declaration requirements and conditions for the attachment of terminal equipment, in respect of users of leased lines, in accordance with the First Schedule.

(2) A notified organisation shall-

(a) provide that information in respect of the technical characteristics, tariffs and supply and usage conditions for leased lines are published in accordance with the presentation given in the Second Schedule, and

(b) insert a notice of such publication in each of the national newspapers and in the Iris Oifigiuil.

(3) A notified organisation shall publish information concerning changes in existing leased lines offerings in accordance with paragraph (2) as soon as may be after such decision and no later than 2 months before such changes are implemented, unless the Director agrees otherwise.

(4) In these Regulations, "notified organisation" means an organisation to which a direction under Regulation 4 has been issued.

(5) A person who contravenes paragraph (2) or (3) shall be guilty of an offence.

7. (1) Where a notified organisation is obliged under these Regulations to publish any information it shall include in such publication information concerning-

(a) ordering procedures,

(b) the typical delivery period, being the period counted from the date when the user has made a firm request for a leased line in which 95% of all leased lines of the same type have been put through to customers, ⁴

(c) the contractual period, to include the period generally foreseen for the contract and the minimum contractual period which the user is obliged to accept,

(d) the typical repair time which shall be the typical time taken to re-connect 80% of lines following notification by the customer to the notified organisation of failure in the case of existing types of leased lines, and

(e) the procedure for refunds, if any.

(2) For the purpose of the period referred to in paragraph (1)(b), the period shall be established, in the case of existing types of leased lines, on the basis of the actual delivery periods of leased lines during a recent time interval of reasonable duration, but the calculation of such period shall not include cases where the late delivery periods were requested by users.

(3) The notified organisation shall, where different classes of quality of repair are offered for the same type of leased lines, publish the different typical repair times.

(4) A person who contravenes paragraph (1) or (3) shall be guilty of an offence.

8. (1) A notified organisation shall not withdraw an offering until it consults any users affected by such withdrawal.

(2) Without prejudice to other rights provided for in law, where, following a decision by a notified organisation under paragraph (1), there is a dispute between a user and a notified organisation concerning a termination date the user may refer the dispute to the Director for a decision under Regulation 11.

(3) A person who contravenes paragraph (1) shall be guilty of an offence.

9. (1) (a) A notified organisation shall ensure that where access to and use of leased lines is restricted, the restrictions are those which are the subject of a decision by the Director pursuant to Article 8.1 of Council Directive 92/44 or are in accordance with Community law

(b) Notwithstanding the provisions of paragraph (a), a notified company shall not restrict access to or use of leased lines unless the terminal equipment of a user does not stand approved for connection to the public telecommunications network in accordance with European Communities (Telecommunications Terminal Equipment) Regulations, 1997 ( S.I. No. 73 of 1997 ) or Directive 93/97 of 29 October, 1993⁵ (supplementing Directive 9½63/EEC) and such restriction may apply until such terminal equipment is approved or disconnected from the public telecommunications network.

⁵ O.J. No. L290/1 24.11.93

(2) A notified organisation shall not introduce or maintain technical restrictions on the-

(a) interconnection of leased lines among each other, or

(b) interconnection of leased lines and the public telecommunication network.

(3) Where a notified organisation restricts, on the basis of an essential requirement specified in Article 6.3 of Council Directive 92/44 as amended by Article 2.6 of Directive 97/51, access to and use of leased lines, it shall notify the Director and the user concerned, as soon as is practicable after the decision to restrict is made, of such restriction.

(4) Where, for the purposes of paragraph (1), a notified organisation restricts access to or use of leased lines the notified organisation shall, as soon as is practicable after the decision to restrict is made, inform the user of any interruption in service and the reasons for such interruption.

(5) A person who contravenes paragraph (1), (2), (3) or (4) shall be guilty of an offence.

10. (1) A notified organisation shall make available the minimum set of leased lines with harmonised technical characteristics as specified in Annex II to the Council Directive 92/44 as amended by Article 1 of Commission Decision 94/439.

(2) The provision by a notified organisation of leased lines other than the minimum set specified in paragraph (1) shall not impede the provision of such specified minimum set.

(3) The Director may, taking into account market demand and progress with standardisation, direct a notified organisation to provide the types of leased line specified in Annex III to the Commission Directive 92/44 as inserted by Article 2.14 of Directive 97/51.

(4) A person who-

(a) contravenes paragraph (1), or

(b) fails to comply with a direction under paragraph (3),

shall be guilty of an offence.

11. (1) The Director may, following a request from a user or a notified organisation, make a decision in respect of a dispute between a notified organisation and a user concerning an alleged infringement of the requirements of these Regulations and without prejudice to the generality of the foregoing may make a decision in respect of-

(a) a refusal to provide leased lines,

(b) an interruption of the provision of leased lines,

(c) a withdrawal of an offering under Regulation 8, or

(d) a reduction of the availability of leased lines features for reasons of alleged failure to comply with the usage conditions.

(2) The Director shall establish procedures for the adjudication of a dispute specified in paragraph (1) and in making a decision under this Regulation the Director may adopt such procedures as are necessary to carry out his or her functions under this Regulation and, without prejudice to the generality of the foregoing, may-

(a) specify the procedure to be followed in the adjudication of such disputes including the maximum time period for filing of a complaint in writing to the Director by the applicant, the maximum time period for the filing of a defence in writing to such complaint. and the maximum time period for the notification of the date of the adjudication by the Director,

(b) specify the requirements relating to such adjudication procedure, including oral submissions, and the code of practice to be followed,

(c) specify the procedure for the filing of application and other documents,

(d) specify the procedure for the service of documents,

(e) prescribe the time limits for any thing that is required to be done for the purpose of these Regulations,

(f) prescribe the payment of fees in relation to such procedure for adjudication,

and shall publish such adjudication procedures, including an amendment to such procedures, in the Iris Oifigiuil.

(3) The Director shall notify the parties to a dispute of his or her decision within one week of its making..

(4) Where the Director has made a decision in respect of a dispute under paragraph (1) the parties to the dispute shall, following notification of the decision, comply with such decision.

(5) Nothing in this Regulation shall be construed as prejudicing the rights of the parties to an adjudication to-

(a) apply to the courts , or

(b) pursue the conciliation procedure specified in Article 12 of Council Directive 92/44.

(6) (a) Where, in the opinion of the Director, a user is in breach of a usage condition imposed in accordance with the requirements of these Regulations the Director may, by notice in writing, without prejudice to any conditions of a contract between a notified organisation and a user of leased lines impose on that user, in a proportionate manner, specific measures aimed at ensuring compliance.

(b) A user of leased lines who fails to comply with specific measures imposed by the Director under paragraph (a) within a period of one month from the date of imposition of specific measures by the Director under that paragraph shall be guilty of an offence.

(c) It shall be a defence to a prosecution under paragraph (b) for the user concerned to prove that a specific measure imposed by the Director under paragraph (a) was unreasonable having regard to the scope and terms of the usage condition which, in the opinion of the Director, that user is failing to comply with.

(7) Where Bord Telecom Eireann uses leased lines for the provision of services that are not the subject of special rights or exclusive rights such types of leased lines shall be provided to other users on request and under equal conditions.

(8) A notified organisation shall, when it uses the public telecommunications network for providing services which are or may be provided by other service providers, adhere to the principle of non-discrimination.

(9) Where a notified organisation considers that -

(a) it is unreasonable, in response to a particular request, to provide leased lines in accordance with its published tariffs and supply conditions, and

(b) that such tariffs and conditions be varied having regard to such request,

the notified organisation shall not vary such tariffs and conditions unless it has obtained the prior written agreement of the Director to such variation.

(10) A person who-

(a) fails to comply with a decision of the Director under this Regulation, or

(b) contravenes paragraph (4), (7), (8) or (9),

shall be guilty of an offence.

12. (1) A notified organisation shall, without prejudice to the principle of non discrimination specified in Article 8.2 of Council Directive 92/44 as amended by Article 2.8 of Directive 97/51, set tariffs for leased lines that-

(a) follow the basic principles of cost orientation and transparency, and

(b) are independent of the type of application which the users of the leased lines implement.

(2) A tariff for leased lines shall, subject to paragraph (3), contain the following elements-

(a) an initial connection charge, and

(b) a periodic rental charge, that is to say, a flat-rate element.

(3) Where tariff elements other than other than the elements specified in paragraph (2) are applied such tariff elements shall be transparent and based on objective criteria.

(4) (a) A tariff for leased lines shall apply to the facilities provided between the termination points at which the user has access to the leased lines.

(b) Where a leased line is provided by more than one telecommunications organisation, half-circuit tariffs, that is to say, from one termination point to a hypothetical mid-circuit point, can be applied.

(5) A notified organisation shall operate and maintain a cost accounting system suitable for the implementation of paragraphs (1), (2), (3) and (4) and which conforms with the provisions of Article 10.2 of Council Directive 92/44 as amended by Article 2.10 of Directive 97/51

(6) A notified organisation shall provide the Director with such information as the Director requests for the purposes of complying with Article 10.3 of Council Directive 92/44 as amended by Article 2 of Directive 97/51.

(7) A notified organisation shall not alter or change its cost accounting system unless the prior approval in writing of the Director to such alteration or change has been obtained.

(8) The Director shall provide the Commission with any information requested for the purpose of Article 10.3 of council Directive 92/44 as amended by Directive 97/51.

(9) The Director may make a declaration that there is effective competition in a leased line market having regard to the tariffs which comply with this Regulation.

(10) Paragraphs (1), (2), (3) and (4) shall not apply-

(a) to an organisation which does not have significant market power as determined by the Director under Regulation 4 in respect of a specific leased line offering in a specific geographic area, or

(b) where the Director makes a declaration under paragraph (9) that he or she is satisfied that there is effective competition in the relevant leased lines market as evidenced by tariffs which comply with the requirements of this Regulation.

(11) A person who contravenes paragraph (1), (3), (5), (6) or (7) shall be guilty of an offence.

13. (1) A notified organisation shall furnish to the Director, not later than 31 March of each year , statistical reports for the preceding calendar year showing delivery times and repair times referred to in Regulation 7.

(2) The Director shall provide to the Commission the reports required by Article 11.2 of the Directive.

(3) The Director shall, subject to the requirements of these Regulations, notify the Commission of the names of organisations providing leased lines, including, where appropriate, the types of leased line that each organisation is required to provide in each geographical area in accordance with Regulation 4(2) and the cases where, in accordance with Regulation 12(9), the requirements of paragraphs (1), (2), (3) and (4) of Regulation 12 are not applied.

(4) The Director shall keep available and submit to the Commission on request data on cases where access to or use of leased lines has been restricted and details of the measures taken by the Director including the reasons why such measures were taken.

(5) A person who contravenes paragraph (1) shall be guilty of an offence.

14. (1) A notified organisation shall-

(a) apply similar conditions in similar circumstances to organisations providing similar services, and

(b) provide leased lines to others under the same conditions and of the same quality as they provide for their own services, and for those of their subsidiaries or partners where applicable.

(2) A person who contravenes paragraph (1) shall be guilty of an offence.

15. (1) The Director shall monitor compliance with these Regulations including any decision, imposition or direction made in accordance with the provisions of these Regulations.

(2) For the purpose of monitoring compliance with these Regulations or a decision, imposition or direction, the Director may, in response to a complaint by a third party or on his or her own initiative, require a person who, in the opinion of the Director, may be subject to an obligation contained in these Regulations, to produce, within such time period as may be laid down by the Director, such information as may be required by the Director to show that the relevant obligation, decision, imposition or direction is being complied with.

(3) The functions of the Director under these Regulations shall be deemed to be included in the functions conferred on the Director under the Telecommunications (Miscellaneous Provisions) Act, 1996 (No. 34 of 1996).

(4) A person who fails to produce information required by the Director under paragraph (2) shall be guilty of an offence.

16. (1) Where the Director is authorised or required by or under these Regulations to issue a decision, imposition, direction or notice, to specify a matter or to communicate a matter to an organisation or a person it shall be issued in writing and addressed to the organisation or person by name and may be served on or given to the person or organisation in one of the following ways-

(a) by addressing it to the person by name and delivering it to that person or addressing it to the organisation and delivering it to the organisation at its registered office or the address at which it carries on any trade or business, or where an address for service has been furnished, at that address,

(b) by leaving it at the address at which the person ordinarily resides, or where an address for service for such person has been furnished, at that address, or leaving it at the registered office of the organisation or the address at which that organisation carries on any trade or business, or where an address for service for such organisation has been furnished, at that address, or

(c) by sending it by ordinarily prepaid post addressed to the person at the place at which such person ordinarily resides or where an address for service for such person has been furnished at that address or by sending it to the registered office of the organisation or the address at which such organisation carries on any trade or business or where an address for service for such organisation has been furnished, at that address.

(2) Where a notice or other information is required by these Regulations to be given to the Director such notice or information shall be sent by post in a prepaid registered letter to the Director of Telecommunications Regulations, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1, or such other address as may be specified by the Director in a public notice in a national newspaper circulating in the State.

17. (1) Subject to Regulation 18 and notwithstanding any dispute, complaint or appeal arising from a decision, imposition or direction of the Director under these Regulations, whether as to the reasonableness or lawfulness of these Regulations or for any other reason, the person or organisation to which the decision or imposition is addressed or the direction issued shall comply with the decision, imposition or direction pending the determination of the dispute, complaint or appeal and, notwithstanding any legal proceedings contemplated or commenced in connection with that decision, imposition or direction, the person or organisation concerned shall continue its operations in compliance with the decision, imposition or direction pending that determination.

(2) A person or an organisation may, within 30 days of receipt of a decision, imposition or direction from the Director under Regulation 16, appeal to the High Court and the High Court may confirm such decision, imposition or direction or direct the Director, as may be appropriate, to rescind the decision, imposition or direction.

18. (1) This Regulation applies to obligations to comply with-

(a) a direction issued under Regulations 4(2) and 10(3),

(b) a decision under Regulation 11(1), and

(c) a specific measure imposed under Regulation 11(6).

(2) A direction, decision or imposition to which this Regulation applies shall take effect-

(a) if no appeal is taken against the direction, decision or imposition, on the expiration of the period during which such an appeal may be taken or the day specified in the direction, decision or imposition, as that on which it is to come into effect, whichever is the later, or

(b) where an appeal is made, on the day following the day on which the direction, decision or imposition is confirmed on appeal or the appeal is withdrawn or the day specified in the direction, decision or imposition as that on which it is to come into effect, whichever is the later.

(3) The bringing of an appeal shall have the effect of suspending the operation of the direction, decision or imposition.

(4) A person who does not wish to comply with a direction, decision or imposition may, within the period of 14 days beginning on which the direction, decision or imposition is served on that person appeal to a judge of the High Court against the direction, decision or imposition and the High Court may-

(a) where it is satisfied that, having regard to the circumstances of the case, it is reasonable to do so, confirm the direction, decision or imposition with or without modification, or

(b) annul the direction, decision or imposition.

(5) A person who appeals against a direction, decision or imposition to which this Regulation applies shall at the same time notify the Director of the appeal and the grounds of the appeal and the Director shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

19. (1) Summary proceedings for an offence under these Regulations may be brought and prosecuted by the Director.

(2) A person who is guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,500.

(3) Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other similar officer of the body corporate, or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

FIRST SCHEDULE

Regulation 6

Presentation of the information to be published in accordance with Regulation 6(1)

Licensing requirements:

The information on licensing requirements, licensing procedures and/or licensing conditions shall provide a complete overview of all factors which have an impact on the usage conditions set out for leased lines.

Conditions for the attachment of terminal equipment

The information on the attachment conditions shall include a complete overview of the requirements which terminal equipment to be attached to the relevant leased line has to fulfil in accordance with European Communities (Telecommunications Terminal Equipment) Regulations, 1997 ( S.I. No. 73 of 1997 ) or Directive 93/97 of 29 October, 1993 (supplementing Directive 9½63/EEC).

SECOND SCHEDULE

Regulation 6

Presentation of the information to be published in accordance with Regulation 6(2)

A. Technical characteristics:

The technical characteristics include the physical and electrical characteristics as well as the detailed technical and performance specifications which apply at the network termination point. Clear reference shall be made to the standards implemented.

B. Tariffs:

The tariffs include the initial connection charges, the periodic rental charges, and other charges. Where tariffs are differentiated, e.g. for reasons of different levels of quality of service, or the number of leased lines provided to a user (bulk provision), this must be indicated.

C. Supply conditions:

The supply conditions include at least the elements defined in Regulation 7.

GIVEN under my Official Seal, this 17 day of April, 1998

Mary O'Rourke, T.D.,

Minister for Public Enterprise

EXPLANATORY NOTE

The purpose of these Regulations is to give legal effect to European Parliament and Council Directive 97/51/EC of 6 October, 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications. The purpose of Directive 97/51/EC is to provide for the harmonisation of conditions of access to and provision of leased lines services throughout the Community. These include supply conditions, conditions for termination of offerings, dispute resolution and tarriff and cost accounting rules.