1.1. Material and territorial competence
As referred above in point I - 2.4 and 2.5, ZON takes the view that ICP-ANACOM lacks material competence to assess this dispute as its subject is not framed within the scope of the electronic communications regulatory framework and EDA is not subject to obligations arising therefrom.
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 Directive 2002/21/EC 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 ZON 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 1.
As far as territorial competence is concerned, the dispute under consideration involves two companies established in different Member-States - Belgium (where EDA is established) and Portugal (where ZON is established). Both the Belgian regulatory authority (BIPT) and ICP-ANACOM are competent to resolve is, parties being entitled to seek intervention of any of these authorities. In fact, neither ECL nor the Framework Directive establish a specific requirement as to the lodging of the request with a specific regulatory authority according to the territory.
In this case, having the claimant opted to submit the dispute to the assessment of this Authority, is it competent to resolve it, without prejudice to the possibility of asking for the collaboration of the Belgian regulatory authority, which at this stage implies the sending of this draft decision.
In the light of the above, it must be concluded that ICP-ANACOM is competent to resolve this dispute.
1.2. Existence of a dispute
As referred above in point I - 2.6 to 2.9, ZON supports that there is no dispute opposing it to the claimant, as it had no opportunity to formally analyse the request submitted to it by EDA, and declares its willing to analyse a new properly proposed request on this matter. Later on, as described earlier (cf. I - 2.12 et seq.), ZON challenges EDA's request and believes that it should be dismissed.
This view is restated and reinforced by ZON in the scope of the prior hearing of interested parties 2.
ZON's considerations show that, even if the company had carried out the referred formal analysis, it would have rejected EDA's request, at least under the precise terms which were presented on 29 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 ZON.
1 Although the conclusion reached by ICP-ANACOM remains unchanged, it should be referred that, in the letter sent by EDA to ZON in January 2011, the former informs that it is registered as provider of electronic communications services, activity which however is not mentioned in the request for dispute resolution submitted to ICP-ANACOM.
2 Vide point II - 1 of the Report on the Prior Hearing and other consultations.
