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Government Ordinance no. 34 of January 30, 2002, on the access to the electronic communications networks and to the associated infrastructure, as well as their interconnection



In accordance with the provisions of article 107 of the Romanian Constitution and of Article 1, indent VI.1 from the Law no. 751/2001 concerning the ability of the Government to issue ordinances,

The Romanian Government hereby adopts the present ordinance:

Art. 1
(1) The aim of this Ordinance is to establish a regulatory framework for the relationships between network operators and service providers concerning the access to the electronic communications networks and their interconnection, as well as the access to the associated infrastructure.
(2) The main principles of the regulatory framework established by this ordinance are to promote competition, to ensure the interoperability of electronic communications services and to protect consumers’ interests.
(3) This ordinance establishes the rights and obligations of operators and of the undertakings seeking interconnection or access to the networks installed, operated, controlled or made available by them or to the infrastructure associated to these networks.
(4) The provisions of this ordinance are not applicable to the access realised by end-users.
Art. 2
Within the meaning of this ordinance, the following terms are defined as follows:
a) electronic communications network – transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, fiber optic or by other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable TV networks, irrespective of the type of information conveyed; 
b) electronic communications service – a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks or services; it does not include Information Society services, as defined in Article 1 of Directive 98/34/EC, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;
c) public communications network – an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services, irrespective of the fact that these services are available to the public directly or via another electronic communications network;
d) associated infrastructure – those resources associated with an electronic communications network or with an electronic communications service which enable or support the provision of services via that network or service; it includes conditional access systems and electronic programme guides;
e) restricted access system – any technical modality or device whereby access in intelligible form to a protected radio or television broadcasting service is made restrictedly, upon subscription or other form of prior individual authorisation;
f) operator – an undertaking installing, operating, controlling or making available a public communications network or elements of the associated infrastructure, or an undertaking authorised to install, operate, control or make available to third parties a public communications network;
g) user – a natural or legal person using or requesting a publicly available electronic communications service;
h) subscriber – a natural or legal person who or which has concluded a contract with the provider of publicly available electronic communications services for the supply of such services;
i) end-user – a user not installing, not operating, not controlling and not making available a public communications networks and not providing publicly available electronic communications services;
j) access – the making available of fixed assets, equipment or services to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services; access covers inter alia: 
- access to network elements and to the associated infrastructure, which may involve the connection of equipment, by fixed or non﷓fixed means, including access to the local loop and to the infrastructure and services necessary to provide services over the local loop; 
- access to physical infrastructure including buildings, ducts and masts; 
- access to relevant software systems including operational support systems;
- access to number translation systems or to systems offering equivalent functionality; 
- access to fixed and mobile networks, in particular for roaming; 
- access to restricted access systems for digital television services; 
- access to virtual network services; 
k) unbundled* access – the making available of fixed assets, equipment or services to another undertaking, as the case may be, which is not conditioned by: 
- the simultaneous acquisition by the undertaking seeking access of products or services which are not necessary for the provision of the requested type of access;
- the acquisition of an imposed volume of products or services, which exceeds the volume necessary for the provision of the requested type of access;
- the imposition of any conditions having a commercial, technical or any other nature, which are not necessary for the provision of the requested type of access;
l) interconnection – the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking; services may be provided by the parties involved or by other parties who have access to that network; interconnection is a specific type of access implemented by the public communications network operators;
m) wide-screen television service – a television service that consists wholly or partially of programmes produced and edited to be displayed in a full height wide-screen format; he 16:9 format is the reference format for wide-screen television services;
n) local loop – the physical circuit connecting the network termination point at the subscriber's point of presence to the main distribution frame or equivalent facility in a fixed public telephone network;
o) local sub-loop – a partial local loop connecting the network termination point at the subscriber's point of presence to a concentration point or a specified intermediate access point in a fixed public telephone network;
p) shared access to the local loop – the provision of access to the local loop or local sub-loop of the operator, authorising the beneficiary to use the non-voice frequencies of the frequency spectrum of the twisted metallic pair; the local loop continues to be used by the notified operator to provide the telephone service to the public;
q) collocation – the provision of physical space and technical resources necessary to appropriately deposit and connect the relevant equipment of the beneficiary of this form of access;
r) roaming – the possibility offered to users of electronic communications services provided via a public communications network to receive and made voice telephony calls or data transmissions or to have access to other electronic communications services when they are outside the geographic coverage area of that network, via another network, following conclusion of a commercial agreement in this respect between the operators or service providers involved;
s) reference offer – that commercial offer, realised under conditions of this ordinance, whereby an operator undertakes to include in any access or interconnection agreement a minimum set of obligations, which are determined in the offer, to be imposed on himself;
t) pan-European services – those services provided at European level, based on common standards and commercial practices.
Art. 3
(1) Providers of electronic communications services and operators of communications networks have the right to negotiate access and interconnection agreements, with a view to establish the technical and commercial conditions of access or interconnection.
(2) The access or interconnection agreement cannot contain obligations that are not related to the access or interconnection service actually offered, the clauses providing these obligations being null and void.
Art. 4
(1) In order to ensure provision and interoperability of electronic communications services, any operator of a public communications network has:
a) the right to negotiate an interconnection agreement with any other operator of a public communications network for the purpose of providing publicly available electronic communications services, including electronic communications services available to the users via another public communications network interconnected with the network of any of the two operators;
b) the obligation, when requested by a third party duly authorised, to negotiate an interconnection agreement with the requesting party for the purpose of providing publicly available electronic communications services, including electronic communications services available to the users via another public communications network interconnected with the network of any of the parties.
(2) The obligations relating to access and interconnection imposed by the regulatory authority to some operators according to Articles 5 to 8 have a reference character for the access or interconnection conditions negotiated by other operators with third parties.
(3) Public communications networks installed for the provision of digital television services shall meet the technical conditions for the provision of wide-screen television services or programmes.
(4) The operators that receive and re-distribute wide-screen television services or programmes have the obligation to maintain that wide screen format.
(5) The information acquired following negotiations carried out under conditions of paragraph 1 letters a) and b) shall be used only for the purpose for which it was supplied and cannot be disclosed to any third party for whom such information could provide a competitive advantage, nor to other departments, subsidiaries or partners of the operator or service provider that got in the possession of the said information.
Art. 5
(1) The regulatory authority shall take all necessary measures in order to encourage and where appropriate ensure, in accordance with the provisions of this ordinance, adequate conditions for access and interconnection, as well as the interoperability of services, in observance of the principles of the economic efficiency, promotion of competition and maximisation of end-users’ benefit.
(2) The measures taken in accordance with the provisions of paragraph 1 may in particular consist, without prejudice to measures that may be taken in accordance with Article 8 with regard to the undertakings with significant market power, of the imposition of the following obligations:
a) obligations on the persons that control access to end-users, including, if such is the case, the obligation to ensure interconnection of the networks of these persons, if the imposition of these obligations is necessary to ensure the connectivity between end-users;
b) obligation on the operators to provide access to those elements of the associated infrastructure that are expressly mentioned for this purpose in the Government’s Decision adopted in accordance with the provisions of Article 6, under fair, reasonable and non-discriminatory conditions, if the imposition of this obligation is necessary to ensure the access for end-users to digital radio and television broadcasting services.
(3) When imposing obligations on an operator to provide access in accordance with Article 12, the national regulatory authority may lay down technical or operational conditions to be met by the provider or by the beneficiaries of such access, if this measure is necessary to ensure normal functioning of the network.
(4) The obligations and conditions imposed in accordance with paragraphs 1 to 3 shall be objective, transparent, proportionate and non-discriminatory.
(5) The regulatory authority has the right to establish, in accordance with the provisions of paragraphs 1 and 4, the conditions for access and interconnection, at its own initiative or, in the absence of agreement between undertakings, at the request of either of the parties involved.
Art. 6
The general conditions relating to the systems for restricted access to digital television and radio services, irrespective of the means of transmission used, shall be established by Government Decision.
Art. 7
The obligations relating to access or interconnection in force at the date of entry into force of this ordinance shall remain valid until the adoption by the regulatory authority of a contrary decision, in accordance with Article 8.
Art. 8
(1) If, as a result of a market analysis carried out in accordance with the law, or following application of the provisions of Article 15 paragraph (1), an operator is designated as having significant market power on a specific market, the regulatory authority may impose on that operator one or more of the obligations set out in Articles 9 to 14, as appropriate.
(2) To the extent that the law does not state the contrary, and without prejudice to the provisions of Articles 5 and 6, the regulatory authority may impose the obligations set out in Articles 9 to 13 only on the operators that were designated in accordance with the provisions of paragraph 1. 
(3) The obligations imposed in accordance with the provisions of paragraphs (1) and (2) shall be, based on the nature of the problem identified, proportionate and justified, and they shall be adopted only after consulting the interested parties, in accordance with the law.
(4) If, as a result of a market analysis carried out in accordance with the law, the regulatory authority concludes that a relevant market is effectively competitive, it shall withdraw or modify as appropriate the obligations imposed in accordance with the provisions of paragraphs (1) and (2).
(5) With at least 30 days prior to withdrawal of any obligations imposed on an operator, the regulatory authority shall notify this intention to the persons having concluded access or interconnection agreements with that operator, in order to allow these persons to find alternative providers or to renegotiate the agreement.
Art. 9
(1) The regulatory authority may, in accordance the provisions of Article 8, impose obligations for transparency in relation to the interconnection of communications networks or to the access to these networks or to the associated infrastructure. These obligations may consist of making public specified information, such as technical specifications, network characteristics, terms and conditions for supply and use, accounting information and tariffs. 
(2) In cases where an operator was imposed obligations of non-discrimination, the regulatory authority may impose on that operator the obligation to publish a reference offer, which shall be sufficiently detailed to ensure that the beneficiaries will not have to pay for resources which are not necessary for the service requested.
(3) The reference offer shall contain a detailed description of the relevant offerings for every element of the network or of the associated infrastructure, according to market needs, and the technical and commercial conditions, including prices, corresponding to each of these elements.
(4) The regulatory authority may impose in the reference offer clauses to ensure the accomplishment of the obligations provided in this ordinance.
(5) The regulatory authority may specify the precise information to be made available to the public, the level of detail required and the manner of publication. 
Art. 10
The regulatory authority may, in accordance with the provisions of Article 8, impose obligations of non-discrimination, in relation to the interconnection of communications networks or to the access to these networks or to the associated infrastructure, whereby to ensure, in particular, that the operators:
a) apply equivalent conditions in equivalent circumstances to other persons providing equivalent services;
b) provide services and information to third parties under the same conditions, including those relating to quality, as it provides for its own services, or for those provided to its subsidiaries or partners.
Art. 11 
(1) The regulatory authority may, in accordance with the provisions of Article 8, impose obligations for accounting separation, within the internal accounting system, in relation to specified activities related to interconnection of communications networks or to the access to these networks or to the associated infrastructure.
(2) In particular, the regulatory authority may require a vertically integrated operator to keep separate accounts for the wholesale prices and its internal transfer prices, in order to ensure inter alia compliance with the obligation for non-discrimination imposed under Article 10 or to prevent the cross-subsidisation, in cases where this is prohibited according to the law.
(3) In order to facilitate the verification of compliance with obligations of transparency and non-discrimination, the regulatory authority may impose on the operators the obligation that accounting records, including data on revenues received from third parties, are provided on request. National regulatory authorities may publish such information as would contribute to, while respecting national and Community rules on commercial confidentiality.
(4) In order to promote an open and competitive market, the regulatory authority may publish such information, under the conditions laid down by the law.
Art. 12
(1) The regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to allow for access to, and use of, specific network elements and associated infrastructure, in particular in situations where the regulatory authority considers that denial of access or imposition of terms and conditions having a similar effect would have as effect to hinder the development of a competitive market at the retail level, or to impair the end-users’ interests.
(2) The obligations mentioned in paragraph (1) may consist inter alia of:
a) giving a third party the right of access to specified network elements or to the associated infrastructure, including unbundled access to the local loop;
b) negotiating in good faith with any third party requesting access;
c) not withdrawing the right of access already granted;
d) providing specified services to third parties on a wholesale basis for resale;
e) granting open access to technical interfaces, protocols or other essential technologies that are indispensable for the interoperability of services, including virtual network services;
f) providing collocation or other forms of shared use of fixed assets or equipment, including duct, building or mast sharing;
g) providing specified services, needed to ensure interoperability of services intended for end-users, including resources for intelligent network services or roaming on mobile networks;
h) providing access to operational support systems or similar software systems, necessary to ensure fair competition in the provision of services;
i) interconnecting networks or network elements.
(3) The regulatory authority may attach to the obligations set out in paragraph (1) conditions covering fairness, reasonableness and timeliness of their accomplishment.
(4) When imposing the obligations set out in paragraph (1), the regulatory authority shall take account in particular of the following:
a) the technical and economic viability of using or installing alternative infrastructures, in the light of the market development, taking into account the nature and type of interconnection and access involved;
b) the feasibility of providing the access required, in relation to the capacity available;
c) the initial investment by the owner of the infrastructure, on the basis of the risks involved in making the investment;
d) the need to promote competition on the long term;
e) where appropriate, any relevant intellectual property rights;
f) the provision of pan-European services.
Art. 13
(1) In situations where a market analysis carried out in accordance with the law indicates a lack of effective competition meaning that the operator concerned might sustain tariffs at an excessively high level, or unjustifiably apply a tariff squeeze, to the detriment of end-users, the regulatory authority may, in accordance with the provisions of Article 8, impose obligations relating to cost recovery and tariff controls, including obligations for cost orientation of tariffs and obligations concerning cost accounting systems, for the provision of specific types of access or interconnection. When imposing such obligations, the regulatory authority shall take into account the investment made by the operator and allow him a reasonable rate of return on adequate capital employed, taking into account the risks involved.
(2) Any cost recovery mechanism or pricing methodology mandated under paragraph (1) shall promote efficiency and competition and maximise consumer benefits. For this purpose, the regulatory authority may take account of tariffs available in comparable competitive markets. 
(3) Where an operator has an obligation regarding the cost orientation of its tariffs, the burden of proof that charges are derived from costs including a reasonable rate of return on investment lies with the operator concerned. For the purpose of calculating the cost of efficient provision of services, the regulatory authority may use cost accounting methods independent of those used by the operator. The regulatory authority may require an operator to provide full justification for its tariffs, and may, where appropriate, require tariffs to be adjusted.
(4) Where implementation of a cost accounting system is mandated in order to support tariff controls, the description of the cost accounting system shall be made public, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs. Compliance with the cost accounting system shall be audited annually by an independent body, the results of the audit being published under the conditions set out by the regulatory authority.
Art. 14
(1) The regulatory authority may, in accordance with the provisions of Article 8, impose on the operator with significant market power on the market for the provision of local loop the obligation to publish a reference offer for the unbundled access to the twisted metallic pair local loop.
(2) The reference offer realised under paragraph (1) shall contain at least the elements set out in the Annex that form part of this ordinance.
(3) The provisions of Article 9 paragraphs (2) to (5) shall apply to the reference offer realised under paragraph (1), as appropriate.
(4) The operator mentioned in paragraph (1) has the obligation to meet all requests for access to the local loop and to the associated infrastructure, at any time this is technically possible. 
(5) The operator mentioned in paragraph (1) has the obligation to provide the beneficiaries with the facilities associated with the provision of unbundled access to the local loop, notably collocation, connections and relevant software systems, under the same conditions as it provides for its own services, or for those provided to its subsidiaries or partners. 
(6) The operator mentioned in paragraph (1) has the obligation to charge cost-oriented tariffs for unbundled access to the local loop and associated infrastructure.
(7) The operator mentioned in paragraph (1) has the obligation to include in the reference offer the clauses imposed by the regulatory authority in order to ensure observance of principles of non-discrimination, fair competition, economic efficiency and maximum benefit for users.
Art. 15
(1) If there is only one operator in a relevant market, then this operator is presumed, for the purpose of application of Article 8 paragraph (1), to have significant power on that market.
(2) The obligations imposed on an operator presumed, in accordance with the provisions of paragraph (1), to have significant power on a relevant market shall remain valid until such time as the regulatory authority, as a result of a market analysis carried out in accordance with the law, concludes that this market is effectively competitive.
Art. 16
(1) The regulatory authority, acting through the control personnel duly authorised for this purpose, is empowered to control the observance of the provisions of this ordinance.
(2) The regulatory authority may delegate the exercise of the powers mentioned in paragraph (1) to another legal person subject to the public law which has supervisory and control tasks in the field of communications.
Art. 17
(1) In exercising the control powers, the personnel duly authorised for this purpose of the regulatory authority or of the legal person mentioned in Article 16 paragraph (2) may require the service providers to supply the necessary information, indicating the legal basis and the purpose of the request, and may lay down deadlines for the submission of the aforementioned information, under the sanction set out in Article 19 paragraph (1) letter a).
(2) The control personnel duly authorised for this purpose of the regulatory authority or of the legal person mentioned in Article 16 paragraph (2) may require declarations or any documents necessary for carrying out the control, make copies of any registers, financial, accountable and commercial documents or any other records; nevertheless, it is authorised to perform inspections with no prior announcement, whose result shall be recorded in a written statement, and to receive, upon convocation or upon the place, information and justifications.
Art. 18
(1) The following deeds shall be considered as misdemeanours:
a) the violation of the obligations set out in Article 4 paragraphs (3) and (4);
b) the violation of the obligations set out in Article 5 paragraph (2) letter b);
c) the violation of the obligation to negotiate set out in Article 4 paragraph (1) letter b);
d) the violation of the obligation of non-disclosure set out in Article 4 paragraph (5);
e) the violation of the conditions set out by the regulatory authority in accordance with the provisions of Article 5 paragraph (3);
f) the violation of the conditions set out by the regulatory authority in accordance with the provisions of Article 5 paragraph (5);
g) the violation of the obligations of non-discrimination set out in Article 10;
h) the violation of the obligations set out in Article 11 paragraphs (1) to (3);
i) the violation of the obligations set out in Article 12 paragraphs (1) to (3);
j) the charging of tariffs in violation of the provisions for tariff control adopted in application of Article 13;
k) the violation of the obligations set out in Article 13 paragraph (1);
l) the violation of the obligations set out in Article 14.
(2) The misdemeanours mentioned in paragraph (1) shall be sanctioned as follows:
a) with fine from ROL 5,000,000 to ROL 50,000,000, the misdemeanours set out in letters a) and b);
b) with fine from ROL 50,000,000 to ROL 1,000,000,000, and for the providers or operators with a turnover exceeding ROL 25,000,000,000 lei, with fine up to 5% of the turnover, the misdemeanours set out in letters c) to l).
(3) The amount of the fines mentioned in paragraph (2) shall be brought up to date by means of Government Ordinance, in relation to the inflation rate.
(4) The sanction for a misdemeanour set out in paragraph (1) shall be established in a particular case by taking account of the gravity of the deed and of its consequences for the competition, upon the criterion of provider’s or operator’s turnover.
(5) The turnover mentioned in paragraph (2) represents the total amount of the revenues from sales during the last financial year, minus the sums representing VAT.
Art. 19
(1) The regulatory authority may impose on the operators the obligation to pay administrative fines amounting up to ROL 300,000,000 per day, laying down the date when these fines start counting, in order to determine the operators to:
a) Provide complete and accurate information where required in accordance with the provisions of Articles 11 paragraph (3), 13 paragraph (3) or 17 paragraph (1), as well as any other information required by the regulatory authority in application of the provisions of this ordinance;
b) Allow for the control mentioned in Articles 16 and 17 paragraph (2) to be carried out;
c) Conform the measures ordered by the regulatory authority or by the legal person mentioned in Article 16 paragraph (2), as the case may be, in application of the provisions of this ordinance, within 30 days from their communication;
d) Comply with the conditions for access or interconnection set out in accordance with the provisions of Article 5 paragraph (2) letter a);
e) Comply with the transparency obligations set out in Article 9.
(2) The maximum amount of the administrative fine mentioned in paragraph (1) may be brought up to date by means of Government Ordinance, in relation to the inflation rate.
(3) The sums resulted from the cashing in of the fines mentioned in paragraph (1) shall be integrally and permanently retained as extra-budgetary revenues at the disposal of the regulatory authority and shall be used according to the provisions of the legally approved budget.
Art. 20
(1) The ascertaining of the misdemeanours set out in Article 18 paragraph (1) and the application of the corresponding sanctions shall be ruled by the control personnel mentioned in Article 16.
(2) The sanctions for the misdemeanours set out in Article 18 paragraph (1) letters a) and b) shall be applied by the control personnel mentioned in Article 16.
(3) The sanctions for the misdemeanours set out in Article 18 paragraph (1) letters c) to l) and the administrative fines set out in Article 19 shall be applied by the board of the regulatory authority.
(4) The act whereby the sanctions misdemeanours set out in Article 18 or the administrative fines set out in Article 19 are applied, not contested within the term set out by law, shall be executory, without any other formality.
(5) The provisions of Government Ordinance no. 2/2001 on the legal regime of misdemeanours shall be also applied to the misdemeanours mentioned in Article 18.
Art. 21
Any person who uses or discloses, for purposes other than those set out by this ordinance, documents or information which constitute professional secret, received or found out while performing his or her job tasks, shall be liable according to the criminal law and may also be obliged to recover the damage so produced.
Art. 22
The regulatory authority in this ordinance is the Ministry of Communications and Information Technology.
Art. 23
At the date of entry into force of this ordinance, Articles 38 to 40 of the Law of Telecommunications no. 74/1996 shall be repealed.





ANNEX

MINIMUM LIST OF ITEMS 
to be included in a reference offer for unbundled access to the twisted metallic pair local loop

A. Conditions for unbundled access to the local loop
1. Network elements to which access is offered covering in particular the following:
a) access to the local loop;
b) access to the non-voice band frequency spectrum of the local loop, in the case of shared access to the local loop.
2. Information concerning the locations of physical access sites and the availability of the local loop in specific parts of the access network; availability of this information may be restricted to interested parties only, in order to avoid public security concerns.
3. Technical conditions related to access and use of the local loop, including the technical characteristics of the twisted metallic pair in the local loop.
4. Ordering and provisioning procedures, usage restrictions.

B. Co-location services
1. Information on the notified operator's sites where co-location is possible; availability of this information may be restricted to interested parties only, in order to avoid public security concerns. 
2. Co-location options at the sites indicated under point 1, including physical co-location and, as appropriate, distant co﷓location and virtual co﷓location.
3. Equipment characteristics and restrictions, if any, on equipment that can be co-located. 
4. Measures put in place by the operator in order to ensure the security of his locations.
5. Access conditions for the staff of the beneficiary.
6. Safety standards and technical norms.
7. Rules for the allocation of space where co-location space is limited.
8. Conditions for beneficiaries to inspect the locations at which physical co-location is available, or sites where co-location has been refused on grounds of lack of capacity.

C. Information systems
Conditions for access to certain systems of the operator: operational support systems, information systems or databases for pre-ordering, provisioning, ordering, maintenance and repair requests and billing.

D. Supply conditions
1. Lead time for responding to requests for supply of services and elements of the associated infrastructure; service level agreements, fault resolution, procedures to return to a normal level of service and quality of service parameters.
2. Standard contract terms, including, where appropriate, compensation provided for failure to meet lead times set out in accordance with the provisions under point 1.
3. Prices or pricing formulae for each feature, function and element of the associated infrastructure provided in this Annex.

Published in the Official Journal no. 88 of February 2, 2002

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