1.1. Existence of a dispute
As referred in the Report on the Prior Hearing and other consultations 1, Ar Telecom makes a few remarks as regards the (non) existence of a dispute.
On this point, it must be recalled that, in its response to the request for dispute resolution made by EDA, Ar Telecom, in spite of demonstrating its willingness to meet its obligations, questions the legitimacy of the request submitted by EDA on 29 January 2010 in the light of the current regulatory framework, and considers that, in a commercial perspective, the type of agreement proposed at the time does not make any sense for any of the parties (vide point I - 2.3 and 2.4 above).
Ar Telecom's considerations show that, even if the company had replied to EDA's letter, it would have rejected this company's request, at least under the precise terms which were presented in January 2010.
It should thus be considered that there is a dispute between the parties as to acceding to the referred specific request presented by EDA to Ar Telecom and that it has the nature of a cross-border dispute as it arose between companies established in different Member States (cf. article 12 of ECL).
1.2. ICP-ANACOM's competence
Paragraph 1 of article 12 of ECL lays down that the cross-border dispute resolution mechanism applies in the event of a dispute arising in respect of the obligations resulting from the regulatory framework on electronic communications between undertakings which are subject thereto and established in different Member States.
This provision transposes paragraph 1 of article 21 of the Framework Directive, which determines that this procedure is applied “in the event of a cross-border dispute arising under this Directive or the Specific Directives between parties in different Member States”.
Recital 32 of the Framework Directive is also very clear, laying down that “In the event of a dispute between undertakings in the same Member State in an area covered by this Directive or the Specific Directives, for example relating to obligations for access and interconnection or to the means of transferring subscriber lists, an aggrieved party that has negotiated in good faith but failed to reach agreement should be able to call on the national regulatory authority to resolve the dispute”. This ruling applies also to cross-border disputes, the material scope of application of which coincides with the one defined for disputes between undertakings in the same State.
This implies that the relevant issue for the application of the cross-border dispute resolution procedure is the fact that the conflict concerns a matter governed by the electronic communications framework, especially compliance with sector obligations provided for, by companies subject to them, and the fulfilment of the corresponding rights which the law can grant to companies that do not provide electronic communications networks or services.
The dispute under consideration concerns compliance by Ar Telecom of the obligation set out in paragraph 4 of article 50 of ECL, which results from paragraph 2 of article 25 of the Universal Service Directive, which is one of the specific directives referred to in the quoted article 21 of the Framework Directive. This obligation falls on companies that assign telephone numbers to subscribers and benefits providers of publicly available directory enquiry services and directories, a category in which EDA is included.
In the light of the above, it must be concluded that ICP-ANACOM is competent to resolve this dispute.
1 Vide pages 2 and 3.
