HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 349/72
EN
Official Journal of the European Union
19.12.2012
RECOMMENDATIONS
COMMISSION RECOMMENDATION
of 12 December 2012
on the notification procedure provided for in Article 22(3) of Directive 2002/22/EC of the
European Parliament and of the Council on universal service and users’ rights relating to
electronic communications networks and services
(Text with EEA relevance)
(2012/798/EU)
THE EUROPEAN COMMISSION,
is not adversely affected by the envisaged requirements.
To that end, national regulatory authorities should
provide the Commission with draft measures setting
Having regard to the Treaty on the Functioning of the European
minimum quality of service requirements or amending
Union, and in particular Article 292 thereof,
previously imposed requirements under the procedure
set forth in Article 22(3) of Directive 2002/22/EC. The
notification mechanism should not involve any
unnecessary administrative burden on the national regu
Having regard to Directive 2002/22/EC of the European
latory authorities. Draft measures lifting any requirement
Parliament and of the Council of 7 March 2002 on universal
previously imposed should at this stage only be notified
service and users’ rights relating to electronic communications
for transparency purposes.
networks and services (Universal Service Directive) ( 1 ), and in
particular Article 22(3) thereof,
Whereas:
(3)
In order to enable the Commission to undertake its
assessment, national regulatory authorities should
provide it with their draft measures in good time
before setting such requirements. This should be done
(1) A
competitive
market
should
help
to
provide
end-users
by means of a notification summarising the grounds
with a wide choice of content, applications and services
for action, the envisaged requirements and the
and with the quality of service they require. National
proposed course of action. National regulatory authorities
regulatory authorities should promote users’ ability to
may discuss informally with the Commission their draft
access and distribute information and to run applications
measures prior to notifying the Commission.
and services. National regulatory authorities, entrusted
with the implementation of Article 22(3) of Directive
2002/22/EC, may set minimum quality of service
requirements to be imposed on an undertaking or under
takings providing public communications networks in
(4) Certain
minimum
information
concerning
draft
measures
order to prevent degradation of service and the
should be provided in order to allow the Commission to
hindering or slowing down of traffic over networks.
carry out an assessment. Account has to be taken of the
Proposed measures should be suitably justified and
need to ensure effective assessment, on the one hand,
proportionate in relation to the objectives and regulatory
and to simplify administration as far as possible, on
principles set out in Article 8 of Directive 2002/21/EC of
the other hand. To help simplify the assessment of
the European Parliament and of the Council of 7 March
notified draft measures and to make the process
2002 on a common regulatory framework for electronic
quicker, national regulatory authorities should use
communications networks and services (Framework
standard formats for notifications.
Directive) ( 2 ). When proposing such measures, the
national regulatory authorities should take account of
the guidelines issued by the Body of European Regulators
for Electronic Communications (BEREC) ( 3 ).
(5) When
the
Commission
makes
comments
or
recommen
dations on proposed measures setting or amending
(2) The
Commission
should
assess
any
proposed
measures,
minimum quality of service requirements, national regu
thus ensuring that the functioning of the internal market
latory authorities should take the utmost account of the
Commission’s comments or recommendations when
deciding on the requirements. National regulatory auth
( 1 ) OJ L 108, 24.4.2002, p. 51.
orities should also contribute to ensuring transparency by
( 2 ) OJ L 108, 24.4.2002, p. 33.
( 3 ) See BEREC, Guidelines for Quality of Service in the scope of Net
way of communicating the adopted measures, including
Neutrality, BoR (12) 32.
those lifting previously imposed requirements.

---

EN
19.12.2012 Official
Journal
of
the
European
Union L
349/73
(6) The
Commission,
for
its
part,
should
make
publicly
(i) the identity of the undertaking or undertakings
available the notification and all supporting information,
providing public communications networks to
as well as any comments or recommendations it has
which the draft measure applies;
made or its notice on not having issued comments or
recommendations. Where information is considered
(ii) a summary of the grounds for action;
confidential by a national regulatory authority in
accordance with EU and national rules on business
confidentiality, the Commission and the national regu
(iii) the envisaged requirements to be imposed by the
latory authority concerned should ensure such confiden
national regulatory authority;
tiality in conformity with Article 5 of Directive
2002/21/EC,
(iv) the proposed course of action;
HAS ADOPTED THIS RECOMMENDATION:
(b) the national regulatory authority’s draft measure and all
supporting documents, including:
AIM AND SCOPE
(i) the relevant facts and circumstances of the case at
1. The
aim of this Recommendation is
to ensure
a coherent
issue that give rise to the envisaged imposition of
approach, full transparency and a streamlined procedure
minimum quality of service requirements on an
when national regulatory authorities intend to take
undertaking or undertakings providing public
measures setting minimum quality of service requirements
communications networks;
pursuant to Article 22(3) of Directive 2002/22/EC.
(ii) an assessment of the proposed measure, in
2. To
this
end,
national
regulatory
authorities
should
provide
particular in view of the policy objectives and regu
the Commission in good time with:
latory principles pursuant to Article 8 of Directive
2002/21/EC;
(a) draft measures setting minimum quality of service
requirements pursuant to Article 22(3) of Directive
(iii) the provisional time frame for implementing the
2002/22/EC;
minimum quality of service requirements;
(b) draft measures amending such previously imposed
(iv) the specific methods that will be used to monitor
requirements;
the application of such requirements;
(c) draft measures lifting any such requirement previously
(v) the results of any public consultation carried out
imposed.
by the national regulatory authority on the

proposed measure; and
DEFINITIONS
(vi) the opinion issued by the national competition
3. Terms defined in Directive 2002/21/EC, in Directive
authority, where provided.
2002/22/EC and in other specific directives have the
same meaning when used in this Recommendation. In
5. Notifications should be made by electronic means with a
addition:
request for acknowledgement of receipt. Documents sent
by electronic means will be presumed to have been
‘notification’ means the notification to the Commission by
received by the addressee on the day on which they were
a national regulatory authority of a draft measure pursuant
sent. Notifications will be registered in the order in which
to Article 22(3) of Directive 2002/22/EC, accompanied by
they are received.
the notification form as provided in this Recommendation;
6. Notifications will become effective on the date on which
the Commission registers them (date of registration). Notice
‘draft measures’ are any measures concerning quality of
will be given on the Commission’s website and by elec
service requirements intended to prevent degradation of
tronic means to all national regulatory authorities and
service and the hindering or slowing down of traffic over
BEREC of the date of registration of a notification, the
networks that a national regulatory authority proposes to
subject matter of the notification and any supporting docu
impose on an undertaking or undertakings providing public
mentation received, while ensuring confidentiality in
communications networks.
conformity with Article 5 of Directive 2002/21/EC.
NOTIFICATION PROCEDURE
7. Notifications should be in an official language of the
European Union. The notification form may be
4. Draft measures as referred to in point 2 should be made
completed in an official language other than that of the
available to the Commission by means of the notification
draft measure. Any comments or recommendations
form set out in the Annex. The draft measures thus notified
adopted by the Commission pursuant to Article 22(3) of
should include the following information, where applicable:
Directive 2002/22/EC will be in the language of the
notified draft measure, translated where possible into the
(a) a summary notification including:
language used for the notification form.

---

L 349/74
EN
Official Journal of the European Union
19.12.2012
8. Where requested by a national regulatory authority, the
By way of derogation from point 11, the Commission,
Commission will informally discuss a draft measure prior
following an initial review of a notified draft measure,
to notification.
may inform the national regulatory authority of a
shortened examination period of one month.
9. A
national
regulatory
authority
may
decide
at
any
time
to
withdraw its notification, in which case the notified
measure will be removed from the register and the
13. Once a derogation from the two-month examination
national regulatory authority concerned, all other national
period as referred to in points 11 and 12 is agreed upon,
regulatory authorities and BEREC will be informed. The
the Commission will inform the national regulatory
Commission will publish a notice to that effect on its
authority concerned, all other national regulatory auth
website.
orities and BEREC, and it will publish a notice to that
effect on its website specifying the length of the exam
ination period agreed.
TIMING AND FOLLOW-UP
10. In accordance with Article 22(3) of Directive 2002/22/EC,
in particular when the Commission assesses a draft measure
14. Without prejudice to points 11 and 12 above, following
as referred to in point 2(a) or point 2(b), it may, having
registration of a notification, the Commission, acting in
examined all the relevant information, make comments or
accordance with Article 5(2) of Directive 2002/21/EC,
recommendations on the draft measure, in particular when
may seek further information or clarification from the
it considers that the proposed requirements would
national regulatory authority concerned, specifying a
adversely affect the functioning of the internal market.
deadline for the reply. The time frame of the notification
procedure will be extended by the number of days passed
until the reply to the request for information is received.
National regulatory authorities should endeavour to provide
The examination period should not exceed two months
in good time the information requested, where it is
following the notification of the draft measure unless
available.
otherwise agreed between the Commission and the
national regulatory authority.
15. Where the Commission makes comments or recommen
11. By way of derogation from point 10, within 15 days of
dations on proposed measures setting or amending
notification of the draft measure:
minimum quality of service requirements in accordance
with Article 22(3) of Directive 2002/22/EC, it will notify
the national regulatory authority concerned by electronic
(i) the national regulatory authority or the Commission
means and publish such comments or recommendations
may seek to extend the examination period for a
on its website.
reasonable period of time, in particular because of the
complexity of the assessment; or
16. When the Commission has not issued comments or recom
(ii) the national regulatory authority may seek to shorten
mendations, it will inform the national regulatory authority
the examination period where, in exceptional circum
concerned, all other national regulatory authorities and
stances, it considers there is an urgent need to act, in
BEREC, and it will publish a notice to that effect on its
order to safeguard competition and protect the interests
website.
of end-users.
17. A national regulatory authority should not adopt any draft
When the national regulatory authority or the Commission
measure under point 2(a) or point 2(b) before the end of
seeks to extend or shorten the two-month examination
the examination period, established in accordance with
period under (i) or (ii) above, it should state the reasons
points 10 to 12. Should the Commission not issue any
for doing so.
comments or recommendations within the given notifi
cation time frame, the national regulatory authority may
adopt the notified draft measure. Draft measures under
12. The length of potential derogations from the two-month
point 2(c) may be adopted by the national regulatory auth
examination period referred to in points 11(i) and 11(ii)
orities at any time after the notification.
should be subject to a prior agreement by the Commission
and the national regulatory authority having regard, in
particular, to the complexity of the assessment and the
interest of the end-users and other stakeholders in having
18. Where a national regulatory authority adopts a measure
in place clear and predictable rules on quality of service.
pursuant to Article 22(3) of Directive 2002/22/EC, it
Where an extension is sought in accordance with point
should communicate the adopted measure to the
11(i), the total examination period agreed should not
Commission. The Commission will publish each adopted
exceed three months following notification of the draft
measure on its website, subject to rules on confidentiality
measure.
in conformity with Article 5 of Directive 2002/21/EC.

---

EN
19.12.2012 Official
Journal
of
the
European
Union L
349/75
ADDITIONAL PROVISIONS
period end on a Saturday, Sunday or an official holiday,
it will be extended until the end of the first following
19. In accordance with Regulation (EEC, Euratom) No 1182/71
working day. The list of official holidays as determined
of the Council ( 1 ), any period of time referred to in this
by the Commission is published in the Official Journal of
Recommendation will be calculated as follows:
the European Union before the beginning of each year.
(a) where a period expressed in days, weeks or months is
to be calculated from the moment at which an event
20. The Commission, together with the national regulatory
occurs, the day during which that event occurs is not
authorities and BEREC, will monitor the application of
counted as falling within the period in question;
the notification procedure. The Commission will evaluate
the necessity of reviewing this Recommendation as appro
(b) a period expressed in weeks or months ends with the
priate two years after the date of its publication in the
expiry of whichever day in the last week or month is
Official Journal of the European Union.
the same day of the week or falls on the same date as
the day during which the event from which the period
21. This Recommendation is addressed to the Member States.
is to be calculated occurred. Where, in a period
expressed in months the day on which it should
expire does not occur in the last month, the period
ends with the expiry of the last day of that month;
Done at Brussels, 12 December 2012.
(c) time periods include official holidays, Saturdays and
Sundays;
For the Commission
(d) working days mean all days other than official and/or
Neelie KROES
public holidays, Saturdays and Sundays. Should a time
Vice-President
( 1 ) OJ L 124, 8.6.1971, p. 1.

---

L 349/76
EN
Official Journal of the European Union
19.12.2012
ANNEX
Notification form in respect of draft measures pursuant to Article 22(3) of Directive 2002/22/EC
INTRODUCTION
The notification form specifies the summary information to be provided by national regulatory authorities to the
Commission when notifying draft measures in accordance with Article 22(3) of Directive 2002/22/EC.
The Commission intends to discuss issues relating to the implementation of Article 22(3) with national regulatory
authorities, especially during pre-notification meetings. Accordingly, national regulatory authorities are encouraged to
consult the Commission on any aspect of the notification form and in particular on the kind of information they are
requested to supply or, conversely, the possibility of dispensing with the obligation to provide certain information in
relation to measures imposing minimum quality of service requirements pursuant to Article 22(3) of Directive
2002/22/EC.
It is important to provide the Commission with a summary information including: (i) the identity of the undertaking or
undertakings providing public communications networks subject to the draft measure; (ii) a summary of the grounds for
action; (iii) the envisaged requirements to be imposed by the national regulatory authority; and (iv) the proposed course of
action.
The national regulatory authority’s draft measure, including adequate reasoning referring to the justification for and the
proportionality of adopting the proposed measures in accordance with point 1 and point 2 of this Recommendation,
should be attached to the notification form. The draft measure should include: (i) the relevant facts and circumstances of
the particular case giving rise to the envisaged imposition of minimum quality of service requirements on an undertaking
or undertakings providing public communications networks; (ii) an assessment of the proposed measure in view especially
of the policy objectives and regulatory principles set out in Article 8 of Directive 2002/21/EC; (iii) the provisional time
frame for implementing the minimum quality of service requirements and the specific methods that will be used to
monitor the application of such requirements; (iv) the results of any prior public consultation carried out by the national
regulatory authority; and (v) the opinion issued by the national competition authority, where provided.
SUMMARY INFORMATION
Describe briefly the content of the notified draft measure:
Indicate the Article 22(3) notification reference of
previously notified draft measures (if any):
Identify the undertaking or undertakings on which this
draft measure imposes obligations:
Describe briefly the grounds for action:
Describe briefly the envisaged requirements:
Describe briefly the proposed course of action:
Reference of the notified draft measure (with internet link if
available):

---

Document Outline

• �

---