NRAs (and NCAs?): Cornerstones for the Application of the New Electronic Communications Regulatory Framework New requirements, tasks, instruments and cooperation procedures David STEVENS and Peggy VALCKE* Faculty of Law of the Katholieke Universiteit Leuven, Belgium

Introduction The Fifth Implementation Report1 identified national regulatory authorities (NRAs) as the cornerstones for the application of the electronic communications regulatory framework. However, even after the publication and application of most of the new electronic communications directives2, many questions about their legal status and tasks remain unanswered. It is not clear today whether or not the new framework will strengthen the position of sector-specific NRAs. This paper wants to avoid possible harmful legal uncertainty in the future by thoroughly analysing the new framework, focussing on the legal position and tasks of NRAs, and on the cooperation and harmonisation procedures they have to apply when taking decisions. The paper comprises four main building blocks, the first of which briefly introduces the definition or scope of the NRA-concept. The first paragraph provides some introductory thoughts on the delineation of this concept in terms of the difference between "rule-making" and "rule-application" functions (important for most civil law countries), while the second paragraph

* The authors would especially like to thank Robert Queck (CRID, FUNDP Namur, Belgium) for his valuable comments on a previous version of this paper and Belgacom NV for the opportunity to perform further research on this important regulatory topic. 1 European Commission, Fifth Report on the Implementation of the Telecommunications Regulatory Package, COM(1999) 537, 10.11.1999, p 9. Available at: http://www.europa.eu.int/information_society/topics/telecoms/index_en.htm. 2 A list of the most important regulatory texts is included in the bibliography at the end of this paper.

COMMUNICATIONS & STRATEGIES, no. 50, 2nd quarter 2003, p. 159.

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briefly discusses the scope of the activities of NRAs in the electronic communications sectors. The second section provides further guidance on the institutional constraints of the new framework. The majority of this section is dedicated to the requirement of independency. On this subject, the paper extensively examines article 3 of the new Framework Directive. However, the use of rather vague and inaccurate concepts in current and previous directives means that we will not be able to distinguish specific criteria to be met. Besides the issue of independency, this section also discusses the actual impact of the requirement for NRAs to orient their decisions towards a number of specific regulatory principles and objectives (article 8 FD), whose effect will, in our opinion, will regrettably remain limited. The third chapter looks at the tasks and instruments of NRAs and the cooperation procedures they have to comply with, while touching on some of the specific advisory and regulatory bodies, set up to harmonise the application of the new framework. This section also discusses cooperation between sector specific NRAs and national competition authorities (NCAs). Finally, the legal feasibility of a single regulatory authority (SRA) for the electronic communications sector is discussed, explicitly raising the question of the desirability of such approach. By thoroughly analysing the articles on the legal position of NRAs, their tasks, instruments and cooperation procedures, this paper intends to increase regulatory predictability with regard to the institutional aspects of the new regulatory framework, providing governments, NRAs and market players with the clearest possible guidance on legally feasible ways to successfully incorporate those dispositions into their national electronic communications legislation.

The "NRA" Concept: a Source of Great Confusion and Possible Fragmentation The concept of "national regulatory authorities” is as old as the liberalisation of the communications sector itself. When the first steps towards competitive markets were taken, it was already considered essential that operational interests would not influence regulatory decisions. The general idea was, of course, that if enterprise was also to be involved in performing regulatory tasks, (perceived) partiality would hinder the evolution

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towards competitive markets3. To ensure that regulatory tasks would be performed transparently, objectively and without discrimination, the first terminal equipment liberalisation directive (infra), which required the drawing up and application of technical specifications, had to be entrusted to bodies independent of undertakings in the market (infra).

Rule-making vs. rule-application Until recently there was a rather confusing debate on the question of whether the concept of “national regulatory authorities” only covered those national bodies assigned with monitoring or applying rules, or included those authorities responsible for drafting the rules themselves. This question was considered of crucial importance for most western civil law countries, which are frequently characterised by a strict separation of powers between the legislative power (i.e. parliament), which in principle is exclusively responsible for drafting material legislation (establishing general rules that apply to an undefined number of cases), the executive power (i.e. the Head of State and/or government), which, by contrast, is responsible for putting into effect and applying the legislation and the judicial power (i.e. the courts, which in principle are exclusively competent for dispute resolution). This strict separation means that in most of those countries, contrary to common law systems, the “regulatory” task is performed at two completely different levels: "rule-making" (i.e. establishing rules that apply to an undefined number of cases) on the one hand, and "rule-application" (i.e. the application of existing rules in individual cases) on the other hand. Of those two functions, only the latter can be assigned to a body that largely functions independently and free from government interference.4 These member states consequently embarked on an interminable search for the exact definition and scope of the NRA-concept, mainly focusing on the perceived paradox between the terms “regulation” and “regulatory authority” (and their equivalents in other languages, e.g. “regelgeving” and “regelgevende autoriteit” in Dutch, or “réglementation” and “autorité réglementaire” in French) which seem to cover both the function of rule-

3 On the broader context of liberalisation and regulatory approaches, see TAYLOR & BEDNARCZYK, 1993. 4 On the tense relationship between the concept of independent regulatory authorities and the requirements of national law, see LASSERRE, 1997.

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application as rule-making on the one hand, and the constitutional and administrative constraints of their national legal frameworks on the other hand5. However, an in-depth analysis of the terminology used does not seem the correct path to follow. The exact definition of the NRA-concept can only result from a thorough analysis of the relevant articles of the regulatory framework itself, since article 2 g) FD defines the “national regulatory authority” in a functional way (QUECK, 2000; STREEL, QUECK & VERNET, 2002), as "the body or bodies charged by a Member State with any of the regulatory tasks assigned in this Directive and the Specific Directives". As a result, every body or institution that performs a task which, according to the specific articles of the directives, should be assigned to a NRA, is considered to be a NRA and has to comply with all relevant institutional requirements. The question of whether member states are obliged to assign any rule-making tasks to their NRAs can therefore only be answered by carefully analysing each specific task separately. Although more precise conclusions can therefore only be formulated at the end of the third section, it seems to us that 99% of NRAs' tasks only relate to the application of rules to individual cases (e.g. the imposing of obligations on a SMP-operator). Only in a few limited cases can the directives be interpreted in a way that would imply the making of rules by NRAs (e.g. articles 9 and 10 FD, respectively on the management of radio frequencies and numbering resources). This raises the question of whether it would not be more appropriate for the directives to use terminology that explicitly only refers to the application of rules in individual cases (e.g. “regulering” in Dutch, or “régulation” in French), since one cannot deny that the inaccurate wording of the directives in some member states has led to great confusion about the precise scope of “national regulatory authorities.” (ZGAJEWSKI & VAN BELLINGHEN, 2000)

Scope of the NRA-concept Unlike its predecessor, the new regulatory framework naturally no longer differentiates between telecommunications and broadcasting networks and services. In principle, the new directives apply without distinction to the

5 This paradox is of course not considered very problematic in most common law countries, where the distinction between rule-making and rule-application is not that strict, see e.g.: MELODY, 1999, in which the author distinguishes different roles based on the criterion of longterm and day-to-day management.

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transmission of all electronic communications. However, member states are not obliged to establish a convergent national regulatory framework for the electronic communications sector. Consequently, member states wishing to continue to differentiate between the traditional, “two kinds of electronic communications,” like the Belgian authorities, can do so. Moreover, the application of this possible divergent national framework can also be assigned to multiple NRAs. Member states can decide to divide the competences of their NRAs according to some kind of thematic paradigm (for example, a specific body for the allocation of radio frequencies) or based on their national administrative or constitutional frameworks (for example, separate NRAs for the telecommunications sector and the broadcasting sector in Belgium) (STREEL, QUECK & VERNET, 2002, 258). The new framework therefore presents a major risk of fragmentation in terms of its application by member states and their NRAs. The most important reason behind this increased risk is the minimalist approach of the directives themselves, which do not seem to pay any specific attention to this problem. In fact, because of the merely functional definition of the NRA-concept, the new directives leave member states the possibility of assigning regulatory tasks to an undefined number of regulatory authorities. On a more theoretical level, the added value of the definition of article 3 FD can be seriously questioned, given its almost perfectly circular reasoning. On the one hand the directives define the NRA as the body or bodies charged with any of the regulatory tasks, while the remaining articles of the directives attribute those tasks to a “national regulatory authority”. The obligation for member states to ensure that NRAs exercise their powers impartially and transparently (article 3, 3. FD, see infra) and the procedures for cooperation between NRAs and other regulatory bodies (art. 3, 4. & 7 FD, see infra) will probably not be sufficient to counterbalance the negligent approach of the directives. It is clear that by not requiring member states to assign consistent sets of competences to their NRAs, the directives represent a considerable threat to the successful harmonisation widely sought by European authorities.6

6 In that respect, article 3, 2. of the Working Document on the FD of DG Information Society would probably have offered a better guarantee, stating that "Member States shall establish and maintain a single national regulatory authority to carry out the specific tasks related to day-today supervision of the market set out in the measures envisaged in the working documents. They shall ensure that the authority has sufficient staff and financial resources and allow it to carry out effectively all functions assigned to it". Brussels, 27 April 2000, available at http://europa.eu.int/ISPO/infosoc/telecompolicy/review99/review99.htm

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Institutional Requirements National regulatory authorities have to comply with a certain number of institutional requirements. The most important requirements are their independency vis-à-vis market players and the obligation for NRAs to take all reasonable measures aimed at achieving a limited number of policy objectives and regulatory principles. NRAs also have to comply with a number of other requirements, such as the transparency of their competences, the ability to resolve disputes, a sufficient level of enforcement of their decisions and a guaranteed right of appeal against these decisions.7

Independence Prior to liberalisation, some regulatory tasks (mostly rather technical aspects, such as establishing and controlling technical specifications) were often entrusted to the public monopoly provider. Other regulatory tasks (such as price and quality control) were assigned to government. Given that this mixture of regulatory and commercial functions was considered a major obstacle to liberalisation and harmonisation, separating them was recognised as an important prerequisite for truly competitive markets.8 However, handicapped by directives that did not offer much specific guidance, the European Commission was previously not always capable of enforcing a satisfactory degree of independence for NRAs (STEVENS, 2001). Although the issue of independency may seem less important for “telecommunications” markets today, it will certainly be a critical issue for traditional “broadcasting” sectors, as the latter are often still characterised by a strong mix of regulatory functions and ownership of public enterprises. The new Framework Directive also fails to offer any further guidance on the required level of independence, almost literally repeating the wording of previous directives9 and using the same rather vague concepts such as

7 For an overview comparing institutional frameworks in Europe, see: European Commission, 8July 2002. For an overview of OECD-countries, see: OECD, 15/FINAL. 8 For the broader context of the reform, see W. H. MELODY, "Policy objectives and Models of Telecom Regulation" in MELODY (ed), 1997b, and the author's articles based on it:. MELODY, l.c., 7-34; MELODY, 1997a. 9 Especially article 5a of the consolidated ONP-framework directive (90/387), thereby leaving aside proposals such as the one of the European Parliament in its first reading of the Framework Directive, to require "political and economic independence" for NRAs and even stating that "they shall also ensure that any body carrying out regulatory functions is able to act

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“functional independence” and “effective structural separation of the regulatory function.”10 There are no clear criteria on how member states should incorporate these requirements into their national legislation. Furthermore, it is not clear what should be considered retaining of ownership or control, leaving a question mark over whether a member state that holds a minority share in a market player should also comply with the requirement of “effective and structural separation”. Background information can only be found in a number of non-binding policy documents (such as the Commission's Communication of 199511 or the preambles of the directives), which seem to indicate that the requirements of “functional separation” and “effective and structural separation” oblige member states to minimise the risk of conflicts of interests between regulatory12 and operational functions and to ensure the impartiality of their decisions. However, the FD explicitly mentions the limits of this obligation, stating that it "is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to property ownership" (recital 11 FD). The obligation to avoid possible conflicts of interests by consequence does not require member states to disregard their own constitutional framework. Bearing all of this in mind, we can differentiate between at least two different sets of obligations in the Framework Directive. The first sentence of article 3. 2. FD applies to all member states. They all have to ensure that their NRAs are legally distinct from and functionally independent of market players. The scope of this obligation is limited to the direct relationship between NRAs and market players. In practice, member states have to ensure two separate things. Firstly, they have to make sure that every NRA is a legal entity separate from any enterprise providing electronic communications networks or services. Assigning any regulatory tasks whatsoever to an entity would constitute a breach of this requirement. Furthermore, in addition to a strictly legal separation, the article also calls for “functional independence” of the NRA in its relationship with market players.

freely, without the further authorisation of any other agency or body, subject only to the right of appeal pursuant to Article 4", Proposal for a directive on a common regulatory framework for electronic communications networks and services - COM(2000) 393 - C5-0428/2000 2000/0184(COD), 1 March 2001, OJ. C. 1 October 2001, 277, 97 (amendment 22). 10 Except for the explicit extension of the principle of separation of powers to the (local) authorities responsible for granting rights of way, article 11, 2 FD. 11 Communication of the Commission on the status and implementation of Directive 90/388/EEC on competition in the markets for telecommunications services, OJ. C. 20 October 1995, 275, 2. 12 Similarly definition to article 2 g) FD, meaning: the performing of tasks that by the directives are assigned to NRAs.

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We believe this obligation to mean that member states should guarantee that market players cannot interfere with the decisions of the regulatory body, that is to say that in the relationship between NRAs and market players no possibility should exist for the market players to influence the decisions of NRAs. Only when a member state retains ownership or control of a market player is it obliged to ensure an "effective structural separation of the regulatory function from activities associated with ownership or control" (article 3, 2. second sentence FD). In practice, we consider this article to reflect the (legitimate) concern of market players and the European Commission that member states retaining an operational objective are subject to an increased risk of conflicts of interest. Given that member states clearly do not have to control a majority share in an enterprise to pose such increased risks, we believe the (stronger) requirement of effective structural separation should also apply when a member state has a minority interest in, or control over, any organisation providing electronic communications networks or services.13 The obligation to ensure such effective structural separation is stronger, because it has a much broader scope. While the obligation of 'functional independence' only concerns the direct relationship between the NRA and market players, effective structural separation should be realised between the regulatory function and the activities associated with ownership or control in general, obliging member states to avoid any possible conflict of interests between those functions at every level of their administrations. This conclusion seems the be supported by most literature on the topic (e.g. SCHÜTZ & ATTENDORN, 2002, 25; BENDER, 2001, 509), although some authors explicitly mention that a member state should not be obliged to do more than assigning the supervision over the NRAs to another minister then the minister managing the State's share in its incumbent operator (e.g. SCHERER, 2002, 279-280; and GERADIN, 2000, 18-20). Although one could argue that, even in this case, there is not a sufficient degree of structural separation at a government level, we also consider it to be the solution offering the best possible result, in view of constitutional constraints in most member states, requiring some government control over every public authority. However, it should be noted that other authors stick closer to the 13 Support can be found in the Communication of the Commission (see footnote 11), which states that effective and structural separation should apply when the Member State is "acting as sole or dominant shareholder of the operator or where a considerable state shareholding in the operator remains".

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text of the Commission's communications of 1995, indicating that control over both the regulatory and operational function can remain the competence of a single Ministry, as long as it is not responsible for more than the accounts and legality of an NRA's decisions.14 Finally, it seems that even after carefully researching all relevant dispositions, we can only conclude, in the words of the Commission in its 1995 communication, that the evaluation of the effectiveness of the separation is more a matter of "actual practice and spirit", bearing in mind the legal tradition and experiences in each member state.15 However, although we probably have not heard the last on this matter, the new directive is rather disappointing on the required level of independency.16 By merely repeating the obligation as it was previously imposed on member states, and by rejecting the proposal of the European Commission to impose a full and effective structural separation between regulatory and operational functions, there is a chance that the new article 3 of the FD will prove as weak and unenforceable as its predecessor.

Policy objectives and regulatory principles Besides independency, the Framework Directive also requires member states to ensure that all decisions by NRAs are aimed at achieving a limited number of policy objectives. Imposing such a harmonised set of objectives and principles to underpin the tasks of the NRAs was considered to be an essential tool to ensure that the increased flexibility of the framework would not hamper the harmonisation of market conditions throughout the European Union. The objectives imposed on NRAs by article 8 of the Framework Directive mainly fall into three categories:

14 QUECK, 2000, 266, and the author's references to page 9 of the Communications of the Commission. 15 The fact that the evaluation of the required level of independence is more a (subjective) matter of actual practice and spirit than meeting a number of well-defined objective criteria seems to be confirmed further by the new obligation for Member States to ensure that "the NRAs exercise their powers impartially and transparently" (article 3, 3. FD) since it is clear that impartiality can be interpreted in both an objective and a subjective way. 16 Also because the obligation for member states to ensure that national regulatory authorities [are] in possession of all the necessary resources, in terms of staffing, expertise and financial means, for the performance of their tasks has been moved from article 3 of the originally proposed text to recital 11 of the FD.

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- promoting competition in the provision of networks, services and associated facilities and services - contributing to the development of the internal market - promoting the interests of the citizens of the European Union To achieve these objectives, the directive gives extensive lists of more specific ways in which the NRAs should pursue them (such as ensuring that users, including disabled users, derive maximum benefit in terms of choice, price, and quality as a practical example of how NRAs should promote competition). Beside those three general principles, the directives also require NRAs to make their decisions (especially those aimed at ensuring effective competition) as technologically neutral as possible. In practice, when taking a decision, NRAs should neither impose nor discriminate in favour of

the use of a particular type of technology. Only in justified cases, can NRAs take proportionate measures to promote certain specific services (for example digital television as a means for increasing spectrum efficiency). Furthermore, article 8 of the FD explicitly mentions the possibility of NRAs contributing to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism. The European Commission seems to attach great value to these objectives and principles, as well as their correct incorporation into national law. However, it seems to us that the importance of these lists of objectives should not be overestimated, since the wording often remains very vague. In fact, promoting competition, contributing to the development of the internal market and promoting the interests of EU citizens are the three most important drivers for the liberalisation and harmonisation of the electronic communications sectors on the whole. We do not see the added value of incorporating those very general objectives into the text of national legislations themselves, or imposing them on NRAs, since even the lists of more specific ways in which these general principles should be put into practice do not solve the problem that they are only objectives, rather than actual (or enforceable) obligations. Another reason for scepticism regarding this obligation relates to the fact that the Framework Directive does not seem to provide any hierarchy between the mentioned objectives. Article 8 does not offer any guidance on how situations should be handled in which two (or more) objectives would lead to different outcomes for a regulatory decision. However, when taking decisions the NRAs will not be able to take all regulatory principles (equally) into consideration for most of the time and will have to choose which objective(s) prevail. Since NRAs of different member states (or even NRAs within one member state) can assign different

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priorities to the various objectives, only a very limited harmonising effect can be expected.

Other requirements A couple of other institutional requirements relating to NRAs are listed briefly below: • Transparency of distribution of powers of NRAs (article 3, 4 FD): requires the publication of the tasks to be undertaken by NRAs in the electronic communications sector in an easily accessible form, particularly where those tasks are assigned to more than one body. • Dispute resolution (article 20, 21 FD): in case of a dispute between undertakings, the NRA is expected to issue a binding decision in the shortest possible timeframe. Assigning the power to resolve disputes to a NRA is, however, not as obvious as the directives seem to assume. In most member states, dispute resolution (especially when it concerns property rights or agreements between individuals) is an exclusive competence of the courts as part of the judicial power. Assigning this task to a separate (administrative) authority is therefore often not an option. However, assigning dispute resolution to the courts is, in most cases, also not appropriate, since it is obviously difficult for them to meet the requirements that apply to NRAs (such as the application of the regulatory objectives and principles).17 • Right of appeal (article 4 FD): any user and undertaking that is affected by the decision of an NRA should have a right of appeal to a body that is independent of the parties involved. Compared to the previous framework,18 two important new requirements immediately catch the eye. This body, which may be a court, must have the appropriate expertise available and must be competent to take the merits of the case duly into account, and pending the outcome of any such appeal, the decision of the NRA should stand, unless the appeal body decides otherwise.

17 On the problems that arise in this context, see: ZGAJEWSKI, 2000; QUECK, 257-258. 18 In particular, article 5a, 3 of the ONP-framework directive. Please note that a preliminary ruling by the Court of Justice is pending on the interpretation of it: Court of Justice, case C462/99 (Connect Austria).

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• Information gathering: NRAs should be capable of requesting necessary information from enterprises under certain conditions (article 5 FD) • Enforcement powers (article 10, 11 AUD): NRAs are granted the power to take appropriate and proportionate measures to ensure compliance and to impose financial penalties. In cases of repeated breaches, they can prevent an enterprise from continuing to provide services, suspend or withdraw its rights of use.

Tasks, Instruments and Procedures For existing (telecommunications) regulatory authorities, the new framework will not require major changes to be made regarding their legal position. However, the same cannot be said of the tasks of NRAs, the instruments they have at their disposal and the working procedures they have to apply, which have all evolved tremendously. The new directives provide for a wide range of powers, responsibilities and tasks to be vested in NRAs in order to ensure effective competition between market players. NRAs will play a central role in effectively implementing this new regulatory framework, since almost all relevant competences are directly assigned to them. The reason for adding those additional competences and flexibility to NRAs is simple: as competition evolves, they need to be equipped with all the necessary powers and means to exercise such powers to allow for further development of competition and to foster the introduction of new technologies. An interesting preliminary question, however, relates to the autonomy of NRAs in performing those regulatory tasks. More precisely, the question arises whether a member state is allowed to pre-define a certain obligation or right directly into the legislation itself, when the directives leave the discretion to impose such obligation to the NRA. It is clear that the directives aim to prohibit such direct government intervention. In view of the functional definition of the NRA-concept, every authority that performs the least of the tasks to be carried out by an NRA has to be considered as an NRA – according to article 2 g) of the FD – and should comply with all institutional requirements of the Framework Directive. It is clear that in the case of some authorities at least, this would not be obvious if a minister or government

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were to be concerned (in terms of independency, regulatory principles, appeal).19

Tasks, powers and instruments of NRAs The new directives assign a great number of powers, responsibilities and tasks to the NRA. As a detailed discussion of all of them clearly does not fall within the scope of this contribution, we limit ourselves to providing an indicative list of tasks that should at least be assigned to an NRA. Under the new framework, NRAs will play a central role as regards market access. Firstly, they will be fully responsible for monitoring the compliance of enterprises with the conditions as set out in the general authorisation. When an enterprise is authorised to offer services and networks, the NRAs are also responsible for issuing declarations to enterprises to facilitate the exercise of rights to install facilities and rights of interconnection (art. 9 AUD). Furthermore, NRAs will play an important role in the allocation of radio-frequencies (including laying down the procedures for transfer of such rights of use, art. 9 FD, infra), in the management of the national numbering space (art. 10 FD: controlling the assignment of numbers, managing the national numbering plan, establishing objective, transparent and non-discriminatory procedures to assign numbers, infra) and in imposing fees for the rights to use radio frequencies or numbers, as well as the rights to install facilities (art. 13 AUD). Finally, in order to increase transparency regarding market entry conditions, the NRAs are obliged to publish the relevant information and to create a user-friendly overview of all information regarding procedures and conditions on rights to install facilities, when this information is held at different levels of government (art. 15 AUD). The regulation of market behaviour is, of course, the most important task of NRAs. Existing literature20 has already adequately described the three most important steps of this regulatory intervention:

19 This opinion is also shared by the Communications Committee, which recently stated in one of its working documents: "Any attempt to curtail the NRA's discretion, by pre-defining in a more restrictive fashion the remedies that are available to it under the new framework, would call into question the full conformity of the national measures with Community law". 20 On the concept of significant market power (SMP) in general: STREEL & QUECK, 2002; POLSTER & BRANDL, 2001.

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• Market definition: Defining relevant markets appropriate to national circumstances, in particular relevant geographic markets (art. 15 FD) • Market analysis: Analysing the relevant markets (in collaboration with national competition authorities where appropriate) and identifying SMP operators, reviewing existing obligations and imposing appropriate specific regulatory obligations if it finds that the relevant market is not effectively competitive (art. 14 & 16 FD) • Imposing obligations on SMP-operators (art. 16 FD & 8 AID): Imposing obligations on SMP-operators as appropriate or other obligations in exceptional circumstances (after approval by the Commission). Besides those general competences relating to access, NRAs are also competent to intervene at their own initiative or at the request of any party involved in order to secure the policy objectives of Article 8 of the Framework Directive (article 5, 4. AID). To the extent that it is necessary to ensure end-to-end connectivity, NRAs can also impose objective, transparent, proportionate and non-discriminatory obligations to interconnect in justified cases on fair, reasonable and non-discriminatory terms (articles 5, 1. 2, a) & 5, 3. AID) and to impose access to APIs and EPGs (article 5, 1. 2, b) & 5, 3. AID). NRAs will also be responsible for reviewing the obligations on operators of conditional access systems (article 6 AID). Finally, the Universal Service (US) Directive assigns the NRA a number of tasks in the areas of consumer rights and protection and universal service provision.

Information, notification, consultation and harmonisation procedures The previous sections clearly indicated that the new directives intend to make NRAs the cornerstones of the application of the new regulatory framework. A number of institutional requirements are applicable to them and they are assigned with an even greater number of powers, tasks and instruments, making them truly responsible for the day-to-day management of the electronic communications markets. However, being aware of the possible risk of fragmentation of the European markets, the directives counterbalance the increased responsibility of NRAs by introducing a number of publication, notification, consultation and cooperation procedures (LAROUCHE, 2002) In the context of this article, we distinguish four categories of procedures.

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Obligations to publish certain information

Firstly, by imposing the publication of relevant information, the directives very generally aim to increase market transparency: information which is published and regularly updated is naturally available throughout the whole market and can be taken into consideration by concerned parties when taking decisions. The directives require NRAs to publish information in the following cases: - when publishing information can contribute to an open and competitive market, including the terms of public access to this information (5 FD); - publishing national consultation procedures (6 FD); - the results of a consultation procedure need to be made public (6 FD); - publishing dispute resolution decisions (FD 20); - publishing of a description of the used cost accounting system and an annual compliance statement (13 AID); - publishing decisions on the allocation of rights of use (5 AUD); - making available the information on the performance of designated USoperators (11 USD); - publishing the cost calculation and auditing of US (12 USD); - publishing principles & an annual report on the cost sharing mechanism for US (14 USD); - publishing a statement on compliance with retail tariff regulation (17 USD). Obligations to notify or inform certain regulatory authorities

Besides publication, the new regulatory framework also intends to increase the harmonisation of national regulatory frameworks through information or notification procedures. The cases in which a NRA has to provide particular information or notify another relevant institution (such as NCAs within their own country NRAs of other member states, the European Commission, etc.) of specific draft decisions are listed below: - providing other NRAs and NCAs information needed for the application of the directives (3 FD); - providing the EC with necessary information; under some conditions this information can also be passed on to other NRAs (5 FD); - informing the EC when it decides not to follow an EC recommendation (19 FD); - informing parties about the decision that other dispute resolution mechanisms than a binding decision of the NRA will be used to resolve a dispute (20 FD);

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- notifying SMP-operators and their obligations to the EC (16 AID); - informing an operator of its non-compliance with the general authorisation (10 AUD); - submitting information to the EC on retail controls and cost accounting systems (17 USD); - notify the designated US provider(s) and SMP-operators for the purpose of the USD to the EC (36 USD). Obligations to consult

Thirdly, the directives impose some specific consultation procedures when an NRA intends to take certain measures. Under these procedures, the relevant regulatory bodies are not only required to inform all concerned parties, but they also need to organise a public consultation on their draft decision. The comments and opinions that were given during this consultation period need to be taken into account by the NRA concerned and often the results of such consultation need to be made publicly available. The central article in this respect is article 6 of the Framework Directive, which contains the "general obligation" for NRAs to give interested parties the opportunity to comment on the draft measure with a significant impact on the relevant market within a reasonable period of time. In practice, when a NRA intends to take such measure, it should give the interested parties the opportunity to comment on it by holding a public consultation. The article further states that the period of this consultation should be reasonable, that NRAs should publish their national consultation procedures and their results. Member states are obliged to ensure the creation of a single information point through which all current consultations can be accessed. In terms of the scope of the obligation to consult, the Commission's guidelines indicated that it would not be sufficient to only consult on the decision itself. Concerned parties should also be able to comment on the grounds and evidence supporting the decision of the NRA.21 It is difficult to evaluate what the precise impact of this article will be, since a lot will depend on the actual application of it by NRAs and the European Commission.22 At least, the European Commission is aware of

21 Commission guidelines, p. 24 (nr. 144-145) 22 The effect will probably be similar to the inapplicability of a measure which has not been notified as required by directive 83/189/EEC laying down a procedure for the provision of

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the possible risk of delay of the decisions of NRAs. In its guidelines on market analysis, the Commission states that a period of two months should generally be considered as a reasonable period for consultation. However, it is also explicitly mentioned that other consultation periods can be justified. Besides this general obligation to consult, the directives also mention other areas in which NRAs have to await the comments or opinions of concerned parties. These specific obligations to organise a consultation relate to: • Imposing the sharing of facilities or property or taking measures to facilitate the coordination of public works (12 FD). The article does not mentions any specific requirements on the procedure to be followed. • The limitation of the number of rights of use for radio frequencies (7 AUD); in this case, the general consultation procedure of article 6 Framework Directive should be applied. • The amendment of rights and obligations relating to general authorisations and rights of use or rights to install facilities (14 AUD). This article explicitly mentions that the procedure should not be shorter than 4 weeks. • The lifting of the obligation to provide public pay phones when these or similar facilities are widely available (6 USD) and the setting of performance targets for undertakings with US obligations. In both cases, the USD foresees a specific consultation procedure in its article 33. While this procedure attaches greater importance to consulting the users of electronic communications services, it essentially does not seem to differ from the general consultation procedure. Cooperation and harmonisation procedures

In a number of cases it is not sufficient to merely consult interested parties because a real cooperation between regulatory bodies is imposed by the directives. As a general rule, articles 7, 2. and 8, 3. d) of the Framework Directive state that NRAs should cooperate with each other and with the European Commission in a transparent manner to ensure the consistent application of the new regulatory framework. They particularly have to seek

information in the field of technical standards and regulations (OJ. L. 26 April 1983, 109, 8). See: Court of Justice, 6 June 2002, case C-159/00, ECR 2002, I-5031 and Court of Justice, 30 April 1996, case C-194/94, ECR 1996, I-2201.

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to agree on the types of instruments and solutions best suited to address particular types of situations in the market. Besides this general obligation to cooperate, the directives also impose more specific procedures. When a NRA intends to take a decision on market definition, market analysis or the imposing of obligations, and where the proposed measure has an effect on trade between member states, the NRA must communicate the draft measure, together with its reasoning, to NRAs in other member states and to the Commission, which in principle has one month to comment on it (article 7, 3 FD).23 Only when the period for public consultation (art. 6 FD, supra) exceeds one month, do other NRAs and the Commission dispose of that same period to give their comments on the draft decision to their fellow NRAs. The concept of “measures that could affect trade between member states” is defined very broadly24 by the recital 39 of the Framework Directive. It consequently seems that most decisions relating to the imposition of obligations will be subject to this first step in the harmonisation procedure.25 Contrary to the (national) consultation procedure previously mentioned, the harmonisation procedure explicitly obliges NRAs to pay the utmost attention to the comments it receives (article 7. 5 FD). However, the NRA itself still remains competent to take a final decision. This is no longer the case in two very specific situations (article 7. 4 FD). The most important one relates to the designation of an undertaking as an operator with significant power in a relevant market (SMP). However, the Commission can also successfully block the draft decision of a NRA when a NRA wants to define a market that is not defined by the European Commission in its Recommendation.26 In practice, the EC has to indicate that it considers that the draft measure would create a barrier to the single European market or that it has serious doubts as to its compatibility with Community law and in particular with the objectives referred to in article 8 of

23 Apart from exceptional circumstances, in which the NRA itself can adopt proportionate and provisional measures, see article 7, 6 FD. 24 Please note that, contrary to other text versions, the Dutch version erroneously requires that the effect on trade between member states is "considerable". 25 See article 7, 3. a) FD and footnote 124 of the SMP-guidelines. The latter specifies that "Article 6 of the AID, although not explicitly referenced in Article 7 of the FD, itself contains cross-reference to Article 7 of the FD and is therefore covered by the procedures therein." 26 Note that in its original proposal of the FD the Commission also aimed at sucha veto-right against decisions of NRAs regarding the imposition of obligations.

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the Framework Directive (promoting competition, contributing to the internal market, promoting the interests of citizens). When this is the case, the final adoption of the measure by the NRA should be delayed by two months. During this period, the Commission may take a decision requiring the NRA to withdraw the draft measure, thus making it permanently impossible for the NRA to adopt its proposed decision. Only if the Commission does not take such a decision within that period may the draft measure may be approved by the NRA. Harmonisation is also the aim of a number of other requirements that NRAs have to comply with in certain specific cases: - when analysing markets NRAs have to take into account the guidelines of the European Commission (14 FD); - when defining markets NRAs have to take into account the recommendation and guidelines of the European Commission (15 FD); - the obligation for NRAs to jointly perform a market analysis in case of transnational markets (16, 5. FD); - the general obligation for NRAs to take the utmost account of the EC recommendations27 (19, 1. FD); - the possibility for the European Commission to take the appropriate technical implementing measures with the aim to harmonise numbering resources (10, 4 & 19, 2. FD); - the obligation for NRAs to following a specific procedure in case of cross-border disputes (21 FD); - NRAs having to request permission of the EC before imposing on SMP-operators other access obligations then those foreseen by the articles 9 - 13 AID (8, 3. AID). Institutions aiming to harmonise the application of the new framework

Besides imposing certain requirements and procedures on NRAs, the new regulatory framework also aims to realise greater harmonisation by establishing a number of specific institutions. By its decision 627/200228, the Commission set up a European regulators group (ERG) for electronic communications networks and

27 On the enforceability of those recommendations, see: Court of. (de) STREEL, QUECK & VERNE, 2002, 254. 28 Commission Decision of 29 July 2002 establishing the European Regulators Group for Electronic Communications Networks and Services, O.J. L. 30 July 2002, 200, 38.

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services. The aim of this group is to function as an interface between the NRAs of member states and the European Commission. The group shall be composed of the heads of each “relevant” NRA29 in each member state or their representatives and will be responsible for advising and assisting the Commission in order to promote the development of the internal market for electronic communications networks and services and to seek to achieve consistent application of the framework by the member states. Besides the ERG, the European Commission is also assisted and advised by the Communications Committee (COCOM), which was established by article 22 of the Framework Directive, replacing the ONP Committee and the Licensing Committee. The COCOM assists the Commission in carrying out its executive powers under the new regulatory framework. The committee exercises its function through advisory and regulatory procedures in accordance with the Council Comitology Decision. The Committee also provides a platform for the exchange of information on market developments and regulatory activities. Two other committees have similar functions, each in a specific area. As far as the radio spectrum is concerned, the EC is assisted by the Radio Spectrum Committee (RSC), which was set up under the Radio Spectrum Decision 676/2002/EC of the European Parliament and the Council.30 The RSC assists the Commission in the development and adoption of technical implementation measures aimed at ensuring harmonised conditions for the availability and efficient use of radio spectrum, as well as the availability of information related to the use of radio spectrum. The Committee also exercises its function through advisory and regulatory procedures in accordance with the Council Comitology Decision. Finally, the Contact Committee (CC) was established by article 23a of the “Television without Frontiers”-directive.31 It is composed of representatives of the competent authorities of the member states and aims to facilitate the

29 Whatever that may be… The aim is clearly to limit the number of regulators participating. However, this seems to conflict with the functional definition of the NRA-concept as elaborated on above. 30 A Radio Spectrum Policy Group (RSPG) was also was established by Commission Decision 2002/622/EC as one of the actions following the adoption of the Radio Spectrum Decision 676/2002/EC. 31 Directive 89/552/EEC of 3 October 1989, OJ. L. 17 October 1989, 298, 23, as amended by Directive 97/36 of 30 June 1997, OJ. L. 30 July 1997, 202, 60.

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exchange of information between member states and the Commission on the implementation of its establishing directive. Specific case: cooperation between NRAs and NCA

Since the telecommunications markets started shifting from monopoly to competition in the second half of the 1980's, the competition rules and authorities have had a growing influence on the electronic communications sector. The new regulatory framework is expected to accelerate the evolution towards reliance on general competition law to regulate market behaviour due to the reorientation of regulatory concepts towards general competition law. Furthermore, the new framework also seems to require an (increased) cooperation between sector-specific NRAs and NCAs. The following paragraphs elaborate briefly on this specific form of cooperation. a) General obligation: article 3 FD Cooperation between NRAs, NCAs and national consumer protection authorities (NCPAs) is in general terms imposed by article 3, 4. of the Framework Directive, which states that: “Member States shall ensure, where appropriate, consultation and cooperation between those authorities [i.e. NRAs], and between those authorities and national authorities entrusted with the implementation of competition law and national authorities entrusted with the implementation of consumer law, on matters of common interest”.

In terms of NRAs and NCAs, the following paragraph of the same article also imposes the obligation to provide each other with the information necessary for the application of the new directives (art. 3, 5. FD). However, the actual scope of those obligations remains open for discussion, since consulting and cooperating can obviously be done in many different ways. One could, for example, easily imagine cooperation between NRAs and NCAs during the research phase preceding a final decision. Another form of cooperation which, in our opinion and given the constitutional and administrative frameworks of most continental western European member states, seems quite unproblematic to implement in national legislation, would be to require a NRA to seek the NCA's advice before coming to a decision. The most advanced form of cooperation would naturally be to require the NRA and NCA to come to a binding decision together. Article 3 of the Framework Directive not only remains surprisingly silent regarding the required form of cooperation, but also seems to indicate

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that the obligation to cooperate does not apply unconditionally, since the article itself explicitly mentions a number of restrictions: • Member states only have to ensure consultation and cooperation where appropriate, leaving the question as to which body can consider this appropriateness unanswered. • Member states should only ensure cooperation on matters of common interest; again, the article does not provide any further guidance on this undefined and rather vague concept. • NRAs and NCAs are only required to share information necessary for the application of the provisions of the new directives. We therefore believe that article 3 of the Framework Directive does not contain anything more than a general requirement to cooperate between NRAs and NCAs. In our opinion member states can comply with this requirement by simply realising some minimalist degree of cooperation (e.g. during the research phase). Although the article explicitly mentions consultation and cooperation as ways in which NRAs and NCAs have to cooperate, no reference is made to the specific consultation and harmonisation procedures mentioned above (i.e. articles 6 and 7 FD). In our opinion, the article should therefore be considered as too vague to impose those specific forms of cooperation on NRAs and NCAs. At the very least, we consider the obligation of article 3 FD as too vaguely worded to be successfully enforced before the Court of Justice. The impact of this article is therefore likely to remain rather limited. b) Specific case: market analysis (article 16, 1 FD) In one specific case, the Framework Directive explicitly mentions the possibility of NCAs' involvement in sector-specific regulation. However, a closer look at the text of the article is disappointing, since on the issue of analysing markets, article 16 of the Framework Directive only states that "Member States shall ensure that this [market] analysis is carried out, where appropriate, in collaboration with the national competition authorities". This rather vague requirement - the situations in which and by whom collaboration could be considered appropriate is again left open - is the result of a compromise between the original Commission proposal and the European Parliament. Strangely enough, the European Parliament seemed convinced that solid cooperation between NRAs and NCAs was needed in order to reflect the evolution from sector-specific towards general competition law (and from sector-specific regulators to competition

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authorities). In that respect, Parliament stated in its report on the first reading of the draft Framework Directive32 that: "in each Member State, there must be a timetable for the integration of the NRA into the national competition authority and that the Commission should reformulate the tasks of the NRAs in a Directive including sunset clauses in order to bring about transparency and a common minimum package of tasks of NRAs", thus posing the highest degree of cooperation between NRAs and NCAs as a final goal. However, when treating the issue of market analysis, collaboration between NRAs and NCAs no longer seems to be very high on the list of Parliament's priorities, as, without any useful argumentation, it rejects the Commission's original proposal to "ensure that national competition authorities are fully associated with that [market] analysis”, resulting in the disappointing compromise mentioned above. As for general cooperation between NRAs and NCAs, we again are very sceptical about the actual impact of this article on the national legislation of member states. We believe it will be very hard for the European Commission to successfully require more than just some minimalist kind of formal cooperation between the two relevant regulatory authorities when defining markets in the electronic communications sectors.

Legal feasibility of an SRA? Using plural wording in most cases when considering the application of the electronic communications framework, the directives seem to indicate a preference for setting up or maintaining multiple regulatory authorities. As the new framework does not require member states to move to a single regulatory framework for the electronic communications sector, it also does not impose the establishment of a single (set of) regulator(s) to apply the national regulatory framework(s). In practice, and because of the fragmentary definition of the concept of national regulatory authorities (supra), it is not unlikely that member states will be confronted with at least three, four or more national regulatory authorities in the future: one authority for telecommunications issues,

32 European Parliament, Proposal for a directive on a common regulatory framework for electronic communications networks and services (COM(2000) 393 - C5-0428/2000 2000/0184(COD), 1 March 2001, OJ. C. 1 October 2001, 277, 97 , amendment 23).

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another to monitor the broadcasting sector, another for the allocation of radio spectrum, another for dispute resolution, etc. While the new European framework does not oblige member states to establish a single regulatory authority for the electronic communications sector,33 it (unintentionally?) nevertheless at least encourages member states to start moving in this direction (or at least to limit the number or their NRAs) by imposing quite weighty publication, notification, consultation and harmonisation procedures on the different regulatory bodies (supra). In practice, member states have a strong incentive to reduce the number of national regulatory authorities, since the number of institutional procedures between NRAs increases exponentially according to the following formula:

Number of institutional procedures = x² - x (where x = number of NRAs)

There is little or no doubt that member states can assign the largest part of the regulatory tasks to one single regulatory authority, as long as the requirements and cooperation procedures mentioned above are complied with. However, some member states could encounter problems assigning some specific powers or tasks (such as resolution of disputes or appeal, supra) to an independent sector-specific regulatory body. Furthermore, problems can also be expected in federal member states, where the same authorities are not necessarily competent to regulate telecommunications and broadcasting.34 It is interesting at this stage to consider whether member states could also assign the regulatory tasks of the directives to their national competition authority, thus coming to a true single regulatory authority for the electronic communications sector. At first, the directives seem to use the concepts of “national regulatory authority” and “national competition authority” as

33 This obligation was left out the initial proposal of the Commission, see footnote 6. 34 For an overview of those problems in Belgium, see GÉRARD, QUECK, VALCKE & STEVENS, 2002-2003.

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antonyms, requiring both to cooperate and to pass on useful information to each other. However, article 2 g) of the Framework Directive clearly defines a “national regulatory authority” as "the body or bodies charged by a Member State with any of the regulatory tasks assigned in this Directive and the Specific Directives". Member states thus dispose of the possibility to autonomously decide which tasks shall be assigned to which body (including their national competition authority), as long as those bodies comply with the institutional and procedural requirements of the new framework. As a result, when a member state wants to assign the sector specific regulatory tasks to its NCA, it should guarantee that the NCA complies with all requirements as described above. Firstly, it should be independent of any commercial entity and appeal procedures need to be implemented or modified according to the requirements of the new framework. Furthermore, the regulatory viewpoint of the NCA has to reflect the regulatory principles and objectives mentioned in article 8 of the Framework Directive. Although traditional NCAs are very well placed to apply general competition rules and to promote competition, it remains to be seen whether they could also successfully take into account other regulatory principles and objectives, such as technological neutrality, contributing to the development of the internal market and/or promoting the interests of consumers. Since present sector-specific regulatory authorities have all accumulated a wealth of expertise on regulating the electronic communications sector, and in order to avoid inconsistencies between or contaminations of the regulatory concepts of both sets of legislation, the best possible solution may be to assign the power to decide on both market definition, market analysis and the imposition of obligations on the NRA, with the obligation to consult the national competition authority. In terms of the application of competition law in the electronic communications sector, it would not seem unintelligent to complement this approach by assigning concurrent competition law powers to the single electronic communications regulatory authority.

Conclusion The purpose of this paper was to take a first glance at the institutional aspects of the new electronic communications regulatory framework by providing a comprehensive, but critical overview of the definition of the NRAconcept, the requirements NRAs have to comply with, their powers and the cooperation procedure they must apply.

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By way of introduction, we touched briefly on the notion of “national regulatory authorities”, coming to the conclusion that the directives use rather confusing terminology. The cause of this confusion seems obvious, since the UK common law system (and the English language in general) does not distinguish as strongly as most western civil law countries between the functions of establishing rules which apply to an undefined number of cases on the one hand, and of the application of those rules to individual cases on the other. A second issue that is briefly discussed relates to the scope of the regulatory framework, raising the question of whether the unified European regulatory framework for the electronic communications sector also requires member states to realise a convergent national legislation. The answer is to this question is quite obvious, since the directives themselves already indicate that they apply without prejudice to the national constitutional frameworks of member states. Member states can thus (at least for some time) continue to maintain two separate regulatory frameworks for the telecommunications and broadcasting sector (as for example Belgium plans to do). The convergent European regulatory framework for the electronic communications sector should not be mirrored at a national level. Furthermore, the application of the regulatory framework does not also necessarily need to be assigned to one single communications authority. In fact, the definition of the concept of national regulatory authority itself is the main cause of an even greater risk of fragmentation of regulatory tasks, since it does not require member states to assign a consistent set of tasks to their national regulatory authorities. Instead, the directive does the opposite by stating that every institution which is responsible for a certain task under the new framework is a national regulatory authority, and subsequently requiring that all these (possible) regulatory bodies consult and cooperate with each other. In that respect, the new directives are a missed opportunity to increase harmonisation on the level of the application of the new framework within member states and throughout the European Union. Unfortunately the new framework does not shed any more light on the independency of NRAs than its predecessor. The question remains open as to what the directives actually require. A distinction can nevertheless be drawn between two different sets of obligations. The first sentence of article 3, 2 FD applies to all member states, obliging them to ensure that each NRA is legally distinct and functionally independent from any commercial undertaking. However, the scope of this article remains strictly limited to the relationship between the NRA on the one hand, and commercial entities on the other. The fact that a minister has some control over both regulatory and operational interests cannot in itself be considered an infringement of this

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obligation. The second sentence of article 3, 2. FD than applies to the specific situation whereby a member state retains some degree of ownership or control over a market player. In this case, a structural and effective separation on all relevant levels of administration should be realised between the regulatory and operational function. In practice, the boundaries of this obligation are the national administrative and constitutional frameworks of member states, indicating that they cannot be required to realise more than a separation of the control of regulatory and operational interests between two different government members. The core of the new framework relates to a whole set of new powers and tasks, which are assigned to the national regulatory authorities (such as defining and analysing markets and imposing obligations on operators). As a detailed analysis of all these tasks clearly falls outside the scope of the current paper, we limited ourselves to enumerating the list of powers that should at least be assigned to NRAs. Furthermore, we drew attention to the fact that the new directives do not contain satisfactory guarantees that the increased number of powers and tasks would not lead to insufficient staffing or funding levels for existing NRAs. A significant part of this paper was dedicated to an overview of all forms of cooperation, as required by the electronic communications directives. The new package was analysed in detail, resulting in four different categories of obligations: obligations to inform a broad range of people and institutions by requiring the publication of certain information, obligations to notify a certain institution of specific information which can be useful in order to come to an increased harmonisation, obligations to consult concerned parties on a proposed decision of the NRA and obligations relating to the specific procedures in order to guarantee the harmonised application of the new regulatory framework throughout the European Union. We also focused on the issue of cooperation between NRAs and NCAs. However, we consider the relevant articles (i.e. articles 3 and 16 FD) to be too vague on the cooperation required to be truly enforceable before the Court of Justice. While examining all of these obligations to cooperate, we found that the prescribed interactions between sector specific regulatory institutions increase exponentially with the number of regulatory bodies within a member state (according to the formula x² - x). Given the increased risk of inefficiency when having to comply with too many of these obligations in taking a decision, member states seem to have a strong incentive to limit the number of national regulatory authorities, although this is not formally required by the directives.

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Finally, the last part of the paper examines the question of whether member states could be successfully assign regulatory tasks to their national competition authorities, thereby coming to a true single regulatory authority. Although the directives do not seem to oppose to this solution, we leave the question open for debate whether this would be appropriate, given the wealth of expertise accumulated by NRAs over the last decade.

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Concise bibliography Directives:

Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive, short: FD), OJ. L. 24 April 2002, 108, 33; Directive 2002/21/EC of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive, short: AUD), OJ. L. 24 April 2002, 108, 21; Directive 2002/19/EC of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive, short: AID), OJ. L. 24 April 2002, 108, 7; Directive 2002/22/EC of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive, short: USD), OJ. L. 24 April 2002, 108, 51; Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, short: PD), OJ. L. 31 July 2002, 201, 37; Directive 2002/77/EC of the European Commission of 16 September 2002 on competition in the markets for electronic communications networks and services (Competition Directive, short: CD), OJ. L. 17 September 2002, 249, 21. Policy documents:

Eur. Comm. Communications Committee, 'Present structure and powers of National Regulatory Authorities in the European Union', Working Document, 8 July 2002, DG INFSO/A2, COCOM02-08, available at http://forum.europa.eu.int/ Eur. Comm. Communications Committee, 'Transposition requirements relating to national regulatory authorities under the new regulatory framework', Working Document, 4 July 2002, DG INFSO/A2, COCOM02-07, available at http://forum.europa.eu.int/ OECD, “Telecommunications regulations: institutional structures and responsibilities”, Working Party on Telecommunications and Information Services Policies, DSTI/ICCP/TISP(99)15/FINAL, www.oecd.org. Jurisprudence:

Court of Justice, case C-462/99 (Connect Austria), pending case. Court of Justice, 6 June 2002, case C-159/00, ECR 2002, I-5031 Doctrine:

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