As referred above in point I - 2.3 and 2.4, Optimus takes the view that ICP-ANACOM lacks material competence to assess this dispute as EDA does not provide electronic communications services and the matter under consideration exclusively concerns the framework on protection of personal data and privacy.
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 Optimus 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 1, 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 2.
For this reason, the argument that this dispute concerns exclusively rules on the protection of personal data and privacy must also be rejected, without prejudice, naturally, to the fact that the ECL itself safeguards compliance with such rules (cfr. paragraph 5 of article 50).
In the light of the above, it must be concluded that ICP-ANACOM is competent to resolve this dispute.
1 Directive 2002/22/EC of the European Parliament and of the Council, of 7 March 2002, on universal service and users’ rights relating to electronic communications networks and services.
2 Although the conclusion reached by ICP-ANACOM remains unchanged, it should be referred that, in the letter sent by EDA to Optimus 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.
