Electronic Communications (Market Analysis) Regulations 2003
| Jurisdiction | UK Non-devolved |
| Citation | SI 2003/330 |
| Year | 2003 |
2003 No. 330
ELECTRONIC COMMUNICATIONS
The Electronic Communications (Market Analysis) Regulations 2003
Made 19th February 2003
Laid before Parliament 20th February 2003
Coming into force 24th February 2003
The Secretary of State, being a Minister designated1for the purposes of section 2(2) of the European Communities Act 19722in respect of matters relating to electronic communications, in exercise of the powers conferred on her by that section, hereby makes the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Electronic Communications (Market Analysis) Regulations 2003 and shall come into force on 24th February 2003.
Interpretation
2. In these Regulations—
“the Access Directive” means Directive 2002/19/ECof the European Parliament and of the Council of 7th March 2002 on access to, and interconnection of, electronic communications networks and associated facilities3;
“associated facilities” has the meaning given by Article 2(e) of the Framework Directive;
“the Director” means the Director General of Telecommunications appointed under section 1 of the Telecommunications Act 19844;
“electronic communications network” has the meaning given by Article 2(a) of the Framework Directive;
“electronic communications service” has the meaning given by Article 2(c) of the Framework Directive;
“the Framework Directive” means Directive 2002/21/ECof the European Parliament and of the Council of 7th March 2002 on a common regulatory framework for electronic communications networks and services5;
“significant market power” has the meaning given by regulation 5(3) to (7); and
“the Universal Service Directive” means Directive 2002/22/ECof the European Parliament and of the Council of 7th March 2002 on universal service and users' rights relating to electronic communications networks and services6.
Amendment to the Electronic Communications (Universal Service) Regulations 2003
3. In regulation 4(10) of the Electronic Communications (Universal Service) Regulations 20037(designation of universal service provider), for “Directorate” there shall be substituted “Directive”.
Policy objectives and regulatory principles
4.—(1) It shall be the duty of the Director in carrying out any of the functions set out in these Regulations to act in accordance with the policy objectives and regulatory principles in Article 8 of the Framework Directive.
(2) Where it appears to the Director that any of those policy objectives or regulatory principles conflict with each other, he must secure that the conflict is resolved in the manner he thinks best in the circumstances.
(3) Where it appears to the Director that any of his duties in section 3 of the Telecommunications Act 1984 conflict with one or more of those policy objectives or regulatory principles, priority must be given to those objectives and principles.
Market identification and analysis
5.—(1) The Director shall—
(a)
(a) make proposals for identification (by reference, in particular, to area and locality) of the markets for electronic communications networks, electronic communications services and associated facilities which in his opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make a determination that a person has significant market power;
(b)
(b) carry out an analysis of the identified markets; and
(c)
(c) based on that market analysis, make proposals for determination as to whether any person in the identified markets has significant market power.
(2) In identifying and analysing those markets, and in considering whether to make any such proposals, the Director must take due account of all applicable guidelines and recommendations which—
(a)
(a) have been issued or made by the European Commission in pursuance of a Community instrument; and
(b)
(b) relate to market analysis or the determination of what constitutes significant market power.
(3) A person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.
(4) References in this regulation to dominance of a market must be construed in accordance with any applicable provisions of Article 14 of the Framework Directive.
(5) A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.
(6) A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.
(7) The matters which must be taken into account in determining whether a combination of persons enjoys a position of dominance include, in particular, those matters set out in Annex II of the Framework Directive.
Notifications for market identification etc.
6.—(1) Proposals for identifying a market or making a market power determination shall be made by means of a notification published by the Director.
(2) Notifications for the purposes of paragraph (1)—
(a)
(a) may be given separately; or
(b)
(b) may be contained in a single notification relating to both the identification of a market and the making of a market power determination.
(3) A notification for the purposes of paragraph (1) must—
(a)
(a) state that the Director is proposing to identify the market which is the subject of the proposal or to make that market power determination;
(b)
(b) set out the effect of the proposal;
(c)
(c) give his reasons for making the proposal; and
(d)
(d) specify the period within which representations may be made to the Director about the proposals set out in his notification.
(4) A notification which sets out proposals for the making of a market power determination may also set out the conditions that the Director is proposing to set by reference to that market power determination so as to bind the person whom the Director is proposing to determine as having significant market power in the identified market.
(5) Where a notification published in accordance with paragraph (1) sets out the conditions that the Director is proposing to set, the notification must set out—
(a)
(a) the effect of those conditions; and
(b)
(b) the reasons for setting those conditions.
(6) The period specified for the purpose of paragraph (3)(d) must be one of not less than one month, beginning with the day after the day on which the notification is published.
(7) The publication of a notification under this regulation must be in such manner as appears to the Director to be appropriate for bringing it to the attention of the persons who, in the Director’s opinion, are likely to have an interest in, or be affected by, it.
(8) Any...
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