European Communities (Electronic Communications Networks and Services)(Access) Regulations 2003

• Statutory Instrument No.: 305/2003

I, DERMOT AHERN, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive No. 2002/19/EC1 of the European Parliament and of the Council of 7 March 2002, hereby make the following regulations:
	Citation and commencement	1. (1) These Regulations may be cited as the European Communities (Electronic Communications Networks and Services)(Access) Regulations 2003.
(2) These Regulations come into operation on 25 July 2003.
	Interpretation	2. (1) For the purposes of these Regulations the definitions as set out in Regulation 2(1) of the Framework Regulations apply.
(2) In these Regulations, except where the context otherwise requires —
“Act of 2002” means the Communications Regulation Act 2002 (No. 20 of 2002)
“access” means the making available of facilities, services or both facilities and services, to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services. It covers, inter alia, access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop), access to physical infrastructure including buildings, ducts and masts access to relevant software systems including operational support systems access to number translation or systems offering equivalent functionality access to fixed and mobile networks, in particular for roaming, access to conditional access systems for digital television services, access to virtual network services; access does not include, apply or refer to access by end users;
“Access Directive” means Directive No. 2002/19/EC1 of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities;
“Authorisation Directive” means Directive No. 2002/20/EC2 of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services;
“Authorisation Regulations” means the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2003 ( S.I. No. 306 of 2003 );
“Framework Regulations” means the European Communities (Electronic Communications Networks and Services)(Framework) Regulations 2003 ( S.I. No. 307 of 2003 );
“interconnection” means the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking. Services may be provided by the parties involved or other parties who have access to the network. Interconnection is a specific type of access implemented between the public network operators;
“local loop” means the physical circuit connecting the network termination point at the subscriber's premises to the main distribution frame or equivalent facility in the fixed public telephone network;
“Minister” means the Minister for Communications, Marine and Natural Resources;
“operator” means an undertaking providing or authorised to provide a public communications network or an associated facility;
“Regulator” means the Commission for Communications Regulation;
“wide screen television service” means a television service that consists wholly or partially of programmes produced and edited to be displayed in a full height wide-screen format. The 16:9 format is the reference format for wide-screen television services.
(2) A word or expression that is used in these Regulations, the Access Directive or in the Framework Regulations has, except where the context otherwise requires, the same meaning in these Regulations that it has in that Directive or those Regulations.
(3) In these Regulations, unless the contrary intention appears,
(a) a reference to a regulation or Schedule is a reference to a regulation or Schedule to these Regulations, and
(b) a reference to a paragraph or a subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs.
(4) In these Regulations, a reference to an enactment shall be construed as a reference to the enactment as amended by any subsequent enactment including these Regulations.
	Confidentiality of information	3. For the purpose of these Regulations, where the Regulator may consider whether information is confidential or not, it shall, subject to the Freedom of Information Acts 1997 and 2003, accept as confidential any information which is expressed to be confidential, except where it has good reasons to consider otherwise.
	General framework for access and interconnection	4. (1) Subject to these Regulations, an undertaking, whether established in the State or in another Member State, may negotiate with any other such undertaking an agreement on technical and commercial arrangements for access interconnection or both access and interconnection in the State in accordance with European Community law for the purposes of the provision of electronic communication services.
(2) An undertaking requesting access or interconnection in the State does not need to be authorised to operate in the State if it is not providing services and does not operate a network in the State.
(3) The Regulator shall not maintain or impose administrative measures which oblige operators when granting access or interconnection, to offer different terms and conditions to different undertakings for equivalent services or to impose obligations that are not related to the actual access and interconnection services provided without prejudice to the conditions specified in the Schedule to the Authorisation Regulations.
	Rights and obligations for interconnection and access	5. (1) An operator has the right to negotiate interconnection with another operator for the purpose of providing publicly available electronic communications services in order to ensure provision and interoperability of services throughout the European Community.
(2) An operator has an obligation to negotiate interconnection for the purpose of providing publicly available electronic communications services when requested to do so by another operator in order to ensure provision and interoperability of services throughout the European Community.
(3) An operator shall offer access and interconnection to other undertakings on terms and conditions consistent with any obligations imposed by the Regulator pursuant to Regulations 6, 7, 8 and 9.
(4) An operator of a public electronic communications network established for the distribution of digital television services shall ensure that the network is capable of distributing wide-screen television services and programmes.
(5) An operator to which paragraph (4) refers that receives and redistributes wide-screen television services or programmes shall not alter by any means whatsoever any signal received by it in a wide-screen format and shall redistribute that signal in that format.
(6) Without prejudice to Regulation 18 of the Authorisation Regulations, an undertaking that acquires information from another undertaking before, during or after the process of negotiating access or interconnection arrangements shall use that information solely for the purpose for which it was supplied and shall respect at all times the confidentiality of information transmitted or stored.
(7) An undertaking shall not pass any information referred to in paragraph (6) on to any other party, in particular, other departments, subsidiaries or partners of the undertaking for whom such information could provide a competitive advantage.
(8) An undertaking which fails to comply with paragraph (6) or (7) is guilty of an offence.
	Functions of Regulator with regard to access and interconnection	6. (1) The Regulator shall, acting in pursuit of the objectives set out in section 12 of the Act of 2002, encourage and, where appropriate, ensure, in accordance with these Regulations, adequate access, interconnection and interoperability of services in such a way as to —
(a) promote efficiency,
(b) promote sustainable competition, and
(c) give the maximum benefit to end-users.
(2) Without prejudice to any measures that may be taken in accordance with Regulation 9 regarding undertakings with significant market power, the Regulator may:
(a) to the extent that it is necessary to ensure end-to-end connectivity, impose obligations referred to in Regulations 10 to 14 inclusive on undertakings that control access to end-users, including in justified cases, the obligation to interconnect their networks where this is not already the case;
(b) after consultation with the Broadcasting Commission of Ireland, impose obligations set out in Regulation 7, to the extent that it is necessary to ensure accessibility for end-users to such digital radio and television broadcasting services as may be specified by the Broadcasting Commission of Ireland, on operators to provide access to application programme interfaces and electronic programme guides, on fair, reasonable and non-discriminatory terms.
(3) The Regulator, when imposing obligations on an operator in accordance with Regulation 13, may lay down technical or operational conditions to be met by the provider, beneficiaries or both the provider and beneficiaries of such access in accordance with European Community law, where necessary to ensure normal operation of the network. Conditions that refer to implementation of specific technical standards or specifications shall respect Article 17 of the Framework Directive.
...