USAID

RITI dot-Gov
Romanian Information Technology Initiative

Internews

Ro Romanian Version  
 

Home

News

Romanian IT&C

Activities

Discussion papers

Links

Contact


EMERGENCY ORDINANCE no. 79 of June 13, 2002 on the general regulatory framework for communications 

 

On grounds of the provisions of article 114 paragraph (4) of the Constitution of Romania, 

The Romanian Government hereby adopts this emergency ordinance.



CHAPTER I
General Provisions


Article 1. – The purposes of this emergency ordinance are: 
a) the establishment of the general framework for the regulation of the activities related to electronic communications networks and services, by defining the objectives and attributions of the National Regulatory Authority for Communications, hereinafter referred to as ANRC, in the field of electronic communications, the conditions of authorisation of such activities, as well as the specific rules governing competition in the market for electronic communications networks and services;
b) the establishment of the objectives and attributions of ANRC in the field of postal services;
c) the setting up of ANRC, as the body of the central public administration specialised in the field of electronic communications and postal services.

Article 2. – (1) Within the meaning of this emergency ordinance, the terms below are defined as follows:
a) provision of an electronic communications network – the installation, operation, control or making available of an electronic communications network;
b) electronic communications network provider – a person whose business consists, in full or in part, in the provision of an electronic communications network; 
c) end-user – any user, except for those who provide public communications networks or publicly available electronic communications services;
d) consumer – any natural person who uses or requests a publicly available electronic communications service for purposes other than those of its commercial or professional business;
e) harmful interference – an interference that endangers the functioning of a radio navigation service or other services having a security role or which in any other manner affects severely, obstructs, or repeatedly interrupts an electronic communications service which uses radio-electric frequencies and operates in accordance with the legal provisions into force. 
(2) In this emergency ordinance are also applicable the definitions under Article 2 of the Government Ordinance no. 34/2002 on access to electronic communications networks and to the associated infrastructure, as well as their interconnection, hereinafter referred to as Access Ordinance, and under Article 2 of the Government Ordinance no. 31/2002 on postal services, hereinafter referred to as Postal Services Ordinance.

Article 3. – (1) The provisions of this emergency ordinance do not apply to the provision of electronic communications networks and services exclusively for the own needs of the person providing them, except for those networks and services that are using radio-electric frequencies.
(2) The provisions of this emergency ordinance do not apply to the provision of electronic communications networks and services by the institutions within the National Defence System, for their own needs, that is subject to the specific regulations applicable to those institutions. 
(3) The interconnection of the electronic communications networks belonging to the institutions within the National Defence System with the public communications networks shall be performed in accordance with the provisions of the Access Ordinance.


CHAPTER II
Authorisation of Electronic Communications Networks and Services Provision



Article 4. – (1) There shall be freedom to provide electronic communications networks and services, subject to the general authorisation regime, in accordance with the provisions of this chapter.
(2) At least 7 days before starting the activity, any person intending to provide electronic communications networks or services must notify ANRC of such intention, in order to set an official record of the providers. The notification shall be made as per paragraph (3).
(3) ANRC establishes and updates the notification standard form, which contains information that any person intending to provide electronic communications networks or services must communicate in order to benefit from the general authorisation, information grouped in the following categories: 
a) data necessary to identify and efficiently communicate with the provider;
b) description of the types of networks or services that the relevant person intends to provide;
c) estimated day for starting the activity.
(4) The person who notified ANRC in due time and in compliance with the conditions under paragraphs (2) and (3) is authorised to provide the types of networks or services indicated in the notification, having all the rights and obligations under the general authorisation to be elaborated, updated, modified, and cancelled as per Article 5.
(5) Any modification of the data specified in paragraph (3) has to be notified to ANRC within 10 days.
(6) The persons to whom the right to provide electronic communication networks or services has been withdrawn cannot benefit from the general authorisation, for the same type of network or service, for a period of 5 years from the withdrawal of the right.

Article 5. – (1) ANRC elaborates and updates the general authorisation for the types of networks and services, whereby it sets the conditions for the provision thereof, thus determining the providers’ rights and obligations for each type of service or network.
(2) The conditions set under paragraph (1) shall be objectively justified according to the relevant type of network or service and shall be non-discriminatory, proportional and transparent. They may target the following:
a) financial contributions to finance the universal service;
b) payment of the annual monitoring tariff;
c) interoperability of services and interconnection of networks;
d) availability of numbering resources for end-users, including conditions imposed on grounds of special laws on universal service;
e) environmental requirements, territory and town planning, as well as requirements and conditions for granting the right of access on property, collocation and facility sharing, including, as the case may be, the financial or technical guarantees necessary to ensure the proper execution of the infrastructure works;
f) obligations regarding the retransmission of programme services through the electronic communications networks, in accordance with the provisions of the legislation on broadcasting;
g) processing of personal data and protection of privacy;
h) consumer protection;
i) restrictions for transmitting illegal and harmful content, in accordance with the applicable legal provisions in the field of e-commerce and broadcasting;
j) information to be provided on grounds of article 4 paragraph (2) and article 51;
k) legal interception of calls, including the bearing by the providers of electronic communications networks or services of the corresponding costs and ensuring the confidentiality by their own systems, accredited in compliance with the conditions set forth by the legislation in force;
l) provision of networks and services during the situations generated by a natural calamity or a very serious disaster;
m) measures aimed at limiting the population exposure to the effects of electromagnetic fields generated by the electronic communications networks, in accordance with the law;
n) obligations for the provision of access, other than the ones under Articles 5, 6 and 8 of the Access Ordinance or under the special laws on the universal service;
o) maintaining the integrity of the public communications network, including by conditions aimed at preventing harmful interference between the electronic communications networks or services;
p) ensuring the security of public communications networks against unauthorised access;
q) use conditions for the radio-electric frequencies whose use is subject only to the general authorisation regime, as per Article 13 paragraph (2);
r) measures intended to make sure that the technical standards or specifications are complied with;
s) criteria and procedures to impose the obligations under Articles 5, 6, and 8 of the Access Ordinance or under the special laws on the universal service. 
(3) ANRC shall modify or cancel the general authorisation, in compliance with the principles of objectivity and proportionality, only after undergoing the consultation procedure specified in Article 50 and only in the following situations:
a) such decision is necessary to comply with the obligations under an international agreement to which Romania is a party;
b) the circumstances under which the general authorisation was issued have changed. 

Article 6. – (1) The persons authorised under Article 4 to provide electronic communications networks or services benefit from the right of access on properties, as per Chapter IV herein.
(2) The persons authorised under Article 4 to provide public communications networks or publicly available electronic communications services also benefit from the following rights:
a) the right to negotiate and conclude access or interconnection agreements with any other authorised providers of public communications networks or publicly available electronic communications services, in accordance with the Access Ordinance;
b) the right to be appointed to provide any of the universal service components, on the entire national territory or in certain areas thereof, in accordance with the law. 
(3) Upon request or ex officio, ANRC shall issue within at most a week a standard certificate attesting that the relevant person has sent a notification in compliance with the provisions of article 4 and presenting the conditions under which the person in question benefits from the right of access on properties and from the right to negotiate access or interconnection agreements. 


CHAPTER III
Legal Regime of the Radio Frequency Spectrum and of the Numbering Resources


Article 7. – (1) The radio-electric frequencies and the numbering resources are limited resources, being State public property.
(2) The administration and management of the radio-electric frequencies and of the numbering resources is performed on basis of the principles of objectivity, transparency, non-discrimination, and proportionality. 

Article 8. – (1) The Ministry of Communications and Information Technology, hereinafter referred to as the relevant Ministry, ensures, in accordance with the law, the administration and coordination of the radio-electric frequencies management at the national level. 
(2) The administration and the management of the radio-electric frequencies is performed in accordance with the national frequency bands allocation table and with the international agreements to which Romania is a party.
(3) The relevant Ministry may for a limited period prohibit the partial or total use of a frequency band or of a certain frequency by natural or legal persons, upon the competent public authorities’ request, supported by arguments, in cases where the national security, public order or national defence so require.
(4) The public authorities competent in the field of national security and public order have the right to use the radio-electric frequency bands to the extent this is necessary for the fulfilment of the special attributions conferred by law. 
(5) Following modification of the destination of frequency bands used for national defence purposes, the costs of acquisition by the Ministry of National Defence of the equipments necessary for the use of the new frequencies shall be compensated. The manner of compensation of these costs shall be established in accordance with a memorandum concluded between the Ministry of National Defence and the relevant Ministry, within 30 days from the date of entry into force of this emergency ordinance. 

Article 9. – The activity of the relevant Ministry regarding the administration and the coordination of the radio-electric frequency spectrum management is assisted by the Interdepartmental Radiocommunications Commission, an advisory body attached to the Ministry, which is formed, organised, and functions by Government decision. 

Article 10. – (1) The following are the authorities in charge with the management of the radio-electric frequency bands: 
a) the General Inspectorate for Communications and Information Technology, hereinafter referred to as IGCTI, in charge with the frequency bands intended for non-governmental use;
b) the Ministry of National Defence, in charge with the frequency bands intended for governmental use for national defence purposes;
c) the Special Telecommunications Service, in charge with the frequency bands intended for governmental use for the fulfilment of its own legal attributions and those of the institutions competent in the field of national security and public order. The Special Telecommunications Service shall assign individually to these institutions, by means of agreements, the radio-electric frequencies and shall keep permanently a record of their use. 
(2) IGCTI shall assign individually the radio-electric frequencies from the bands specified in the national allocation table and shall keep permanently a record of their use. 
(3) The authorities mentioned under paragraph (1) shall ensure the mutual exchange of information regarding the frequency assignments performed, in accordance with the provisions of the Law no. 182/2002 on classified information, and shall collaborate in order to identify and localise the unauthorised emissions and the harmful interferences, with a view to ensuring the radio-electric protection of all the electronic communications services which use radio-electric frequencies. 

Article 11. – (1) ANRC shall ensure, in keeping with the legal provisions, the administration and management of the numbering resources at the national level. 
(2) The administration and management of the numbering resources is performed in accordance with the national numbering plan and with the international agreements to which Romania is a party. 

Article 12. – (1) ANRC shall ensure the availability of the adequate numbering resources for all the providers of publicly available electronic communication services. 
(2) The management of the numbering resources must be in compliance with the principle of equal treatment of all the providers of publicly available electronic communications services. 
(3) The providers of publicly available electronic communications services to whom numbering blocks have been assigned are obliged to apply the principle of non-discrimination towards other providers of electronic communications services regarding the numbering sequences used for the access to their services. 

Article 13. – (1) The use of radio-electric frequencies and of numbering resources is only allowed upon the obtainment of a license, granted under such conditions as to ensure their efficient use.
(2) The relevant Ministry may designate certain frequency categories that can be used freely, subject to the general authorisation regime in what concerns the access and the conditions of use, in the cases where this is technically possible and especially when the harmful interference risk is low.
(3) Where applicable, granting of the right to use radio-electric frequencies must observe the procedure and the conditions harmonised at the European level, by observing the provisions of the international agreements to which Romania is a party. 
(4) In the case of the radio-electric frequencies necessary for the own needs of the institutions within the National Defence System, their use shall be free of charge, with no licence being necessary, on grounds of the allocation performed by the relevant Ministry, by means of the national frequency bands allocation table. 

Article 14. – (1) The license for using radio-electric frequencies is the administrative document whereby the relevant Ministry grants a provider authorised as per Article 4 the right to use one or several radio-electric frequencies in order to provide electronic communications networks or services, in compliance with certain technical parameters and for a limited period of time.
(2) The license for using radio-electric frequencies shall set the conditions under which the holder thereof may exercise the right under paragraph (1). Such conditions must be objectively justified according to the relevant type of network or service and shall be non-discriminatory, proportional and transparent. They may target the following:
a) the designation of the type of network or service or of the technology for which the right of use has been granted, including, if case may be, the exclusive use of a frequency in order to transmit a certain content or to retransmit certain programme services;
b) the effective, rational and efficient use of the frequencies, including, if case may be, territory coverage requirements;
c) the technical and operational requirements necessary to avoid harmful interferences and to limit the population’s exposure to the effects of electromagnetic fields, where such conditions differ from those included in the general authorisation;
d) the duration for which the right of use is granted, subject to modification of the national frequency bands allocation table;
e) the license transfer;
f) the spectrum use tariff set as per Article 19;
g) the obligations undertaken by the relevant provider during a competitive or comparative selection procedure;
h) the obligations arising under international agreements on frequency use.

Article 15. – (1) The licenses for using radio-electric frequencies shall be granted based on an open, transparent and non-discriminatory procedure, within at most 6 weeks from the reception of an application in this respect, except for the licenses that are granted based on a competitive or comparative selection procedure, for which the term is at most 8 months.
(2) The terms referred to in paragraph (1) may be modified by the relevant Ministry if such is necessary for observing an international agreement regarding the use of radio-electric frequency spectrum or the orbital positions, to which Romania is a party.

Article 16. – (1) The number of licenses for using radio-electric frequencies that are to be granted may be limited only when necessary in order to ensure an efficient use of the radio-electric frequency spectrum.
(2) Limiting the number of licenses for using radio-electric frequencies that are to be granted may only be made in compliance with the following conditions:
a) the relevant Ministry shall consider the necessity that the measure should maximise the users’ benefit and should facilitate the competition development;
b) the relevant Ministry shall give all the interested parties, including the users and the consumers, the opportunity of expressing their opinions on the decision of limiting the number of licences;
c) the relevant Ministry shall publish the decision of limiting the number of licenses, together with the corresponding motivation;
d) after establishing the procedure for granting the respective licenses, the relevant Ministry shall launch the invitation for applications, in accordance with the established procedure.
(3) The relevant Ministry shall examine the decision of limiting the number of licenses on an annual basis or upon receiving a well-justified application from a concerned party, in order to establish whether or not this limitation is still justified.
(4) When new radio-electric frequencies become available for granting, the relevant Ministry is bound to inform the public in this respect and to begin the procedure of receiving the applications.
(5) Granting licenses whose number has been limited shall be made only according to objective, clear, non-discriminatory and proportional criteria.

Article 17. – (1) The license for using numbering resources is the administrative document whereby ANRC grants to a provider authorised in accordance with Article 4 the right to use certain numbers in order to provide electronic communications services, for a limited period of time.
(2) The license for using numbering resources establishes the conditions for its holder to exercise the right provided by paragraph (1). These conditions must be objectively justified according to the relevant service and shall be non-discriminatory, proportional and transparent. They may target the following:
a) the designation of the service for which the right of using numbering resources was granted, including any requirements related to the provision of that service;
b) the effective, rational and efficient use of the numbering resources;
c) requirements concerning number portability;
d) obligations related to the services concerning the public directories of subscribers;
e) the period for which the right of use is granted, subject to change of the numbering national plan;
f) the license transfer;
g) the tariff for the use of the numbering resources, established under Article 19;
h) any obligations undertaken by the respective provider during a procedure of competitive or comparative selection;
i) obligations arising under international agreements on the use of the numbering resources.

Article 18. – (1) Granting the licenses for using numbering resources shall be made by an open, transparent and non-discriminatory procedure, within at most 3 weeks from receiving an application for that purpose, except for those licenses to be granted by a competitive or comparative selection, which shall be granted within 6 weeks at most.
(2) ANRC shall grant licenses for using numbering resources whenever it receives a justified application for that purpose, considering the nature of the respective service, the necessity of obtaining the respective numbering resources, the applicant’s position on the market, and the assurance of the efficient use of the national numbering resources. 
(3) After consulting the interested parties, in accordance with the law, ANRC may decide to grant certain categories of numbers, which have a special economic value, by means of procedures of competitive or comparative selection.

Article 19. – (1) The holder of the license for using radio-electric frequencies is bound to annually pay to the IGCTI a spectrum use tariff established by the relevant Ministry.
(2) ANRC may impose to the holders of licenses for using numbering resources to pay a tariff for the use of these resources.
(3) The tariffs established as per paragraphs (1) and (2) shall ensure the optimal use of the radio-electric frequencies and of the numbering resources, and shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose. 

Article 20. – (1) The license for using radio-electric frequencies and the license for using numbering resources may be transferred to a third party, authorised under Article 4, only with the prior approval of the relevant Ministry, respectively of ANRC, and only by undertaking all the obligations deriving therefrom as well as by observing the conditions provided by the licenses concerning the transfer thereof.
(2) Any agreement having as object the transfer of the license, concluded without observing the provisions of Article (1) is legally null and void. 
(3) The transfer of the license must not have as object the restriction, obstruction or distortion of competition and, in the cases where the use of the frequencies is harmonised at the level of the European Union, it must not lead to the modification of the destination of the frequencies constituting the object of the license in a manner which contravenes to this harmonised use.
(4) The transfer of the license shall be brought to the acquaintance of the public by the relevant Ministry, respectively, by ANRC.

Article 21. – (1) The procedure of applying for and issuing the licenses for the use of radio-electric frequencies and of the licences for the use of numbering resources shall be established by regulation, approved by order of the head of the relevant Ministry, respectively, by decision of the president of ANRC.







CHAPTER IV
Right of access on properties


Article 22. – The providers of electronic communications networks, authorised under Article 4, may, in compliance with the conditions of this emergency ordinance, install, maintain, replace or move any elements of the electronic communications networks, including the supports and the other facilities necessary for their support, as well as the terminal points used for providing electronic communications services, on, above, in or under the assets in public or private property, as the case may be.

Article 23. – (1) The providers of electronic communications networks authorised under Article 4 shall have the right to install, maintain, replace or move any elements of the electronic communications networks, on, above, in or under the assets in public property of the state of the administrative-territorial units only to the extent where: 
a) the exercise of this right is compatible with the public use or interest for which the respective assets are intended,
b) the execution of the respective works does not contravene to the specific requirements concerning the town or territory planning, the environmental protection, the protection of public health or of public order, which the activities executed on, above, in or under the respective assets must observe, and
c) the conditions for exercising this right have been established by agreement of the parties or, in default of such agreement, by a court decision.
(2) The providers of electronic communications networks authorised under Article 4 shall have the right to execute the works specified in Article 22, on, above, in or under the privately owned assets only to the extent where:
a) the respective assets would not be affected or would be insignificantly affected by the execution of such works, or, if another electronic communications network provider authorised under Article 4 has already executed works similar to those under Article 22 on, above, in or under the respective assets, the exercise of right to use the assets would not be permanently affected by an additional restraint caused by new such works,
b) the execution of the respective works does not contravene the specific requirements concerning the town or territory planning, the environment, the public health or the public order, which the activities executed on, above, in or under the respective assets must observe, and
c) the conditions for exercising this right have been established by agreement of the parties or, in default of such agreement, by a court decision.

Article 24. – The works specified in Article 22 may be executed only by respecting the applicable legal provisions concerning: 
a) the location and the authorisation for execution of constructions;
b) the design and the location of the constructions and installations in road areas, on bridges, passages, viaducts and traffic tunnels, as well as in the areas for the protection of airports and of the navigation; 
c) the conditions of location of the technical-urbanistic works and of the poles for installations in road areas;
d) the construction quality;
e) the public hygiene and health protection;
f) the environment protection;
g) the work protection.

Article 25. – (1) ANRC may impose to a provider of electronic communications networks, executing works from the category specified in Article 22 over an asset in public or private property, the obligation to allow another provider of electronic communications networks authorised under Article 4 to use the supports and the other facilities intended to support the network elements, installed, built or arranged by the first provider, in order to execute the works specified by Article 22, if the following conditions are cumulatively met:
a) the conditions necessary for the second provider to benefit from the right provided by Article 23 are not met, or the use of similar facilities installed, built or arranged by the second provider in the individual exercise of the right provided by Article 23 would imply disproportionate expenses comparing with the shared use of the facilities according to the provisions of this Article;
b) the works specified in Article 22 may be executed by the second provider by using the same facilities in conditions at least as convenient as those which may be ensured by using other similar facilities installed, built or arranged by this second provider;
c) this shared used of the facilities does not affect technically and does not additionally burden the execution of the works specified in Article 22 by the first provider, or its activities related to the provision of electronic communications networks;
d) this shared use of the facilities does not require executing major supplementary installation, building or arrangement works.
(2) In case ANRC imposes to a provider of electronic communications networks the obligation provided by paragraph (1), it shall also establish the conditions of exercising the shared use of the facilities.

Article 26. – (1) The holders of the right established under Article 23 may exercise this right only after concluding an authentic contract with the holder of the property right over the respective asset, whereby the conditions of exercising this right are established. In case of an asset in public property under the administration of a third party, the contract may also be concluded with the holder of the right of administration over the respective asset.
(2) The conditions established by the contract concluded with the holder of the property or administration right over an asset in public property must be non-discriminatory for all the providers of public communications networks. The holder of the property or administration right shall be in charge with the publication of the contract thus concluded. A copy of the contract shall be delivered to ANRC, which is bound to make it available to any interested party. 
(3) The contract concluded under the conditions of this Article must provide at least:
a) the areas for which the access is allowed, the working methods that are to be used and the actual conditions, including the period of time, under which the holder has access to the asset in order to install or maintain the respective facilities, and
b) the conditions under which the asset owner or holder may execute works that would affect the access to elements of the electronic communications networks or their proper maintenance, or which would require their movement.
(4) The contract concluded under the conditions of this Article shall provide the obligation on the holder of the right established under Article 23 to pay to the holder of the property or administration right over the respective asset a price representing the value for the use of the asset and the compensation for the damages caused by the execution of works. In case of assets belonging to the public domain, the price shall be established observing the following principles:
a) the price should not discriminate between the providers of public communications networks, should be justified and proportionate with the use of the respective asset;
b) the price should cover only direct and certain damages caused by the execution of the works specified in Article 22, as well as by the presence and functioning of the elements of the electronic communications networks constituting the object of these works.
(5) In the case where the Government establishes the obligation to pay certain amounts as tariffs or taxes or with any other title, due for the occupation and use of certain assets belonging to the public domain, such as roads, bridges, passages, viaducts, tunnels and similar others, the holder of the right under Article 23 owes only these amounts as price of the contract. 
(6) Any clause contrary to the provisions of paragraph (5) is legally null and void.
(7) The contract concluded under the conditions of this Article is opposable to any holder of a real right over the respective asset, as well as to the holder of the concession right, lending right and to the holder of any other title. 

Article 27. – (1) In case that the contract provided by Article 26 may not be concluded within 4 months from the date when the applicant submitted to the holder of the property or administration right over the respective asset the request to begin the negotiations, the applicant may go to the relevant court of law. 
(2) In case the court finds the application legally grounded, it may pronounce a decision which substitutes the contract between the parties. 
(3) In case the right established under Article 23 is exercised over an asset in public property, the holder of the property or administration right shall be in charge with the publication of the court decision. A copy the court decision shall be delivered to ANRC, which is bound to make it available to any interested party.
(4) The provisions of the Article 26 paragraph (7) are applicable in the case of the court decision which substitutes the contract between parties under paragraph (2).

Article 28. – (1) The persons empowered by the providers of electronic communications networks, authorised under Article 4, to execute the works specified in Article 22 or to run study or design activities in order to execute these works, have the right of access on, above, in and under the assets in public or private property, as the case may be, only to the extent where the access is necessary for accomplishing the professional tasks, based on a written power of attorney from the respective providers, with the approval of the holder of the right of use over the respective asset or, in default of his/her approval, with the approval of the holder of the property or administration right.
(2) The holder of the right of use and the holder of the property or administration right are not entitled to deny the access of the persons provided by paragraph (1), in case such access is performed in compliance with the conditions established by a contract concluded under Article 26 or by means of a court decision issued under Article 27. 
(3) In default of such approval, the access may be authorised by court decision. In emergency case, the court may order the access on the basis of a Presidential Ordinance. 
(4) In case that executing some emergency maintenance or repair works is required in order to prevent or remove the consequences caused by a natural calamity or a very serious disaster, or in order to ensure the national security or the public order, the persons empowered under paragraph (1) have the right of access without the approval of the holder of the right of use or of the property or administration right, on the basis of the Presidential Ordinance. The request for Presidential Ordinance shall be immediately judged, in the Council Chamber, without the obligation of summoning the parties. 

Article 29. – (1) The right established under Article 23 does not breach the property right or other real rights over the respective asset or over the facilities used in a shared fashion, or over the elements of the electronic communications networks. 
(2) The exercise of the right established under Article 23 shall cause, as much as possible, no change of the respective asset destination, shall affect to the lowest extent the use of the asset by the holder of the right of use and the external aspect of the asset and shall not endanger the health or the physical integrity of the persons. 

Article 30. –The holder of the right established under Article 23 may require the owners to cut down, under the conditions of the law, the trees or bushes, as well as the branches or roots that render or would render more difficult the execution of the works specified in Article 22. These works shall be performed at the applicant’s expense and by paying damages under Article 26 paragraph (4) letter b).

Article 31. – (1) The holder of the right established under Article 23 is bound to relocate the elements of the electronic communications networks within the same property, at his own expense, when this relocation is required in order for the owner to construct buildings or to execute works, under the conditions agreed upon in the contract concluded under Article 26 or established by court decision issued under Article 27. 
(2) When the relocation of the elements of the electronic communications elements is required in order for a person other than the owner to execute some works, the expenses shall be borne by this one, if not otherwise agreed upon by the contract provided by Article 26.



CHAPTER V
Rules applicable to providers of networks and services having significant market power 


Article 32. – (1) ANRC in collaboration with the Competition Council elaborates and updates: 
a) The regulation for the identification of the relevant markets in the electronic communications sector;
b) The regulation for conducting market analyses and determining the significant market power.
(2) The regulation for the identification of the relevant markets in the electronic communications sector identifies those product and service markets whose characteristics may justify the imposition by ANRC of some specific obligations on the providers of electronic communications networks or services having significant market power.
(3) The regulation for conducting market analyses and determining the significant market power contains the rules on the grounds of which ANRC performs the analysis of the markets identified according to The regulation for the identification of the relevant markets in the electronic communications sector and determines if a provider of electronic communications networks or services has significant power on a certain market. The regulation for conducting market analyses and determining the significant market power also contains the criteria on the basis of which ANRC determines if two or several providers of electronic communications networks or services jointly have a significant power on a certain market.
(4) The provisions of the regulations referred to by paragraph (1) shall be in compliance with the principles laid down by the Competition Law no. 21/1996 and by the regulations issued with a view to its application.

Article 33. – (1) A provider of electronic communications networks or services is deemed to have significant power on a certain market if, individually or together with other such providers, enjoys a position equivalent to a dominant position on the respective market.
(2) Dominant position on a certain market means the situation where a provider of electronic communications networks or services is able, to a considerable extent, to behave independently from competitors, clients and consumers. 
(3) The competitors include also the potential competitors, that is, those persons who, in the given economic circumstances, are able to enter the respective market with services they provide in other geographic areas, or by fast adaptation of their technology, in acceptable conditions of efficiency. 
(4) If there is a single provider of electronic communications networks or services, it is presumed that it has significant power on the respective market. 
(5) If an electronic communications network or service provider has significant power on a certain market, it may be deemed as also having significant power on a market tightly related to the first one, provided that the connections between the two markets should allow that the power held on a market be also used on the other market, thus causing an increase of the market power of the provider. 

Article 34. – (1) Where the law requires that imposing, maintaining, amending, or withdrawing of certain obligations are to be made following a market analysis conducted according to the laws, ANRC shall establish whether or not there is actual competition on the relevant market on the basis of a market analysis conducted as per the Regulation for conducting market analyses and determining the significant market power. In the conduct of such analysis, ANRC shall collaborate, where such is the case, with the Competition Council. 
(2) If based on market analysis thus conducted ANRC establishes that there is actual competition on the relevant market, it shall not impose any of the obligations of the category mentioned in paragraph (1) or, in case such obligations exist, it shall withdraw them. ANRC must with at least 30 days prior to the withdrawal of any obligations imposed on a provider of electronic communications networks or services, notify thereupon the persons affected by this measure, in order to allow them to adapt to the new conditions.
(3) If based on this market analysis, ANRC establishes that there is no actual competition on the relevant market, it shall identify, applying the Regulation for conducting market analyses and determining the significant market power, the providers of electronic communications networks or services which have, as per Article 33, a significant market power, and may impose on them, as appropriate, one or several of the obligations of the category mentioned in paragraph (1), or shall maintain or amend these obligations, in case where such obligations already exist.
(4) The measures under paragraph (2) and (3) may only be taken following the procedure set under Article 50.



CHAPTER VI
Promotion of Competition and Settlement of Disputes Between Providers


Article 35. – (1) The providers of public communication networks and the providers of publicly available electronic communications networks who benefit from special or exclusive rights for the provision of services in other economic sectors, in Romania or in a member state of the European Union, have the following obligations: 
a) to keep separate accounts for the activities associated with the provision of electronic communications networks or services, in the same way as this would be done if such activities were carried out by distinct legal persons, so as one may be able to identify, with the basis of calculation and the attribution methodologies applied, all the elements that contribute to the formation of the costs and revenues connected to the activities related to the provision of electronic communications networks or services, including a detailed presentation of the immobilised assets and of the structural expenses;
b) to have a structural separation for the activities associated with the provision of electronic communications networks or services. 
(2) The provisions of paragraph (1) letter a) do not apply to the providers the annual turnover of which in activities associated with the provision of electronic communications networks or services in Romania or in the member states of the European Union is less than EUR 50 million.
(3) The providers of public communication networks or the providers of publicly available electronic communications services for whom the requirements of corporate law are not applicable and who do not meet the criteria applicable to small and medium enterprises established by the accounting rules harmonised with the legal requirements of the European Union are bound to elaborate their financial reports, to have them remitted for approval by an independent financial auditor, in accordance with the law, and to have them published. This requirement is also applicable to the separate accountability under paragraph (1) letter a).

Article 36. – (1) Should a dispute appear between the providers of electronic communications networks or services or between the providers of postal services in relation to the obligations imposed upon them on grounds of this emergency ordinance or of the special legislation, the president of ANRC, upon the request of any of the parties, shall issue a mandatory decision for the settlement of the dispute within 4 months from the application in this respect, save for exceptional situations, when a longer term is necessary for the adequate settlement of the dispute. 
(2) The decision is communicated to the parties together with the outline of the reasons upon which it is grounded and shall be published on the web site of ANRC, in keeping with the legal provisions regarding confidentiality. 
(3) In the case where one of the parties is from Romania and another is from a different state, ANRC shall collaborate with the similar authorities from that state in order to settle the dispute. 
(4) The parties may initiate a legal action at the relevant court of law regardless whether ANRC has been remitted an application having the same object. 



CHAPTER VII
National Regulatory Authority for Communications


Article 37. – The National Regulatory Authority for Communications is set up as a public legal person subordinated to the Government, fully financed from extra-budgetary incomes, which has the role of implementing the national policy in the field of electronic communications and postal services.

Article 38. – (1) The direction of ANRC is ensured by a president and a vice-president, appointed by the Prime Minister for a 5-year term.
(2) The president and the vice-president may be revoked by the Prime Minister for violation of the provisions of this emergency ordinance or for criminal conviction by a definitive court decision. 
(3) The president represents ANRC in the relationships with the Parliament, with the Government, with other public authorities and organisations, as well as with legal and natural persons from Romania or from abroad.
(4) The president of ANRC is a credit principal.
(5) In the exercise of his tasks, the president issues decisions.
(6) The decisions with a normative character shall be published in Official Journal of Romania, Part I.
(7) All decisions, including those adopted in accordance with the provisions of Article 20 paragraph (3) of the Access Ordinance, may be appealed in front of the Administrative Division of the Bucharest Court of Appeal, within 30 days from their publication or communication, as the case may be, with no need to follow the preliminary procedure provided by Article 5 of the Law on the disputes with the administration no. 29/1990, with the subsequent amendments.

Article 39. – (1) While carrying out its activity, ANRC must exercise its attributions in a transparent and impartial way and maintain its operational and financial independence from:
a) the providers of electronic communications networks and services; 
b) the manufacturers of equipments intended for the provision of electronic communications networks or services or their authorised representatives, the importers or dealers of such equipments;
c) the providers of postal services.
(2) The ANRC personnel, including its president and vice-president, may not hold shares in the companies having their object of activity in the fields of electronic communications, postal services, audiovisual or in other fields within the competence of ANRC, and may not have the quality of member of the board in such companies. 

Article 40. – (1) ANRC has the head office in Bucharest and territorial offices in each city capital of a county, and in each district of Bucharest.
(2) The organisational structure of ANRC is approved by the president.

Article 41. – (1) The financing of the ANRC current and capital expenses is ensured entirely from the following sources:
a) the monitoring fee due, in accordance with the provisions of Articles 47 – 48, for the activities of surveillance and control of the electronic communications market, performed by ANRC;
b) the annual monitoring fee due in accordance with the provisions of Article 51 of the Postal Services Ordinance;
c) the tariff for the use of numbering resources, due under Article 19 paragraph (2) of this emergency ordinance;
d) other incomes which may be obtained in compliance with the provisions of the normative acts in force.
(2) ANRC may accept donations, legacies and sponsorships, under the conditions of the law. 
(3) The amounts obtained from the sources specified in paragraph (1) are integrally retained as own extra-budgetary incomes, on a permanent basis, at the disposal of ANRC, and shall be used as per the legally approved income and expenditure budget.

Article 42. – (1) The annual ANRC income and expenditure budget shall be elaborated by this institution and shall be approved by Government decision.
(2) The unused amounts, determined at the end of the financial year as difference between the obtained income and the incurred expenses, are carried over in the following year.

Article 43. – (1) The personnel of ANRC is hired by contest organised under the conditions of the law, in compliance with the organisational structure of the institution.
(2) The attributions, duties and individual responsibilities of the ANRC personnel are settled in the job description signed by hierarchical superior and by the holder, based on the regulation for the organisation and operation of ANRC.
(3) Hiring, promotion, as well as modification or cessation of the labour relations of the ANRC personnel are approved by decision of the president, under the conditions of the law.
(4) Remuneration of the ANRC personnel, as well as of the president and of the vice-president of the institution, must comply with the provisions of the legal provisions applicable to the public institutions fully financed from extra-budgetary incomes.



CHAPTER IX
Objectives and Attributions of ANRC


Article 44. – (1) In order to fulfil its role, as defined per Article 37, ANRC has the following functions:
a) to enforce the sector policy and strategy in the electronic communications and postal services fields;
b) to administer and manage resources, whereby it plans, allocates, follows and evaluates the use of the resources for the implementation of the policies in the field;
c) to allocate the numbering resources for electronic communication services by the elaboration of the national numbering plan and the elaboration of the future plans in this respect;
d) to manage the numbering resources at the national level with a view to their rational and efficient use;
e) to elaborate and adopt technical norms, to initiate national standards, to propose for adoption the international standards as national standards and to adopt technical regulations making mandatory the application of the standards in the field of electronic communications and postal services, as well as for the use of numbering resources;
f) to regulate the activities in the fields of electronic communications, postal services, and numbering resources;
g) to adopt and implement decisions with normative and individual character, as well as functional, operational, and financial procedures whereby the policies in the field are realised, to follow and control their observance;
h) to represent at the level of national, regional, and international bodies and organisations, in its quality of state authority in the field of electronic communications and postal services, as well to communicate with such bodies or organisations;
i) to communicate with the other structures of the public administration, with the civil society and with the citizens, as well as with the providers of networks and services in the field of electronic communications and postal services;
j) to be the arbiter and the decision-making body for the settlement of the disputes between the providers of networks and services in the field of electronic communications and postal services, with a view to ensuring the free competition and the protection of the interests of the users on the markets of such products.

Article 45. – The objectives of the ANRC activity are the following:
a) to enforce the sector policy and strategy in the electronic communications and postal services field, as defined by the relevant Ministry;
b) to promote competition in all sectors of the electronic communications and postal services markets;
c) to promote transparency in the relations with the users, by keeping them adequately informed by the providers of networks and services operating on the electronic communications and postal services markets, including information as to tariffs and to the other service conditions;
d) to ensure the conditions for the Romanian citizens to exercise their right of access to universal service, as it is provided in the relevant legislation, both as for the electronic communications and as for the postal services field;
e) to protect the rights and interests of the users with respect to both electronic communications networks and services, and postal services, including by taking all necessary measures so that the users obtain maximum advantages under the conditions of a competitive market, inasmuch as diversity of the offer, tariffs and service quality are concerned;
f) to promote the specific interests of the disabled users and of the users with special social needs;
g) to protect the individuals’ rights, especially of the right of privacy, with respect to processing of personal data in the electronic communications and postal services sectors;
h) to encourage efficient investments in infrastructure and to promote innovation in the electronic communications and postal services sectors;
i) to promote the integrity and security of the public communications networks;
j) to promote media convergence and technological neutrality;
k) to promote cultural and linguistic diversity, as well as media pluralism.

Article 46. – In order to fulfil the objectives under Article 45, ANRC has the following attributions:
1. to elaborate and update the general authorisations;
2. to supervise and control the observance of the obligations imposed upon the providers of networks and services by the general authorisations;
3. to promote and support the harmonisation at the European level of the use of numbering resources, in accordance with the legal instruments into force within the European Union; 
4. to publish the national numbering plan and any modifications brought to it, subject to the restrictions imposed out of national security reasons; 
5. to manage the numbering resources at the national level;
6. to grant the licenses for using numbering resources, to establish and receive the taxes for the issuance of the licences in accordance with the legislation into force and with the administrative costs of the issuance of licences;
7. to issue regulations regarding the manner of use of the numbering resources;
8. to identify the relevant markets in the electronic communications sector and to elaborate the methodology for the conduct of the market analyses, by elaborating and updating the regulations referred to in Article 32;
9. to conduct the market analyses in the cases where these are mandatory, in accordance with the law;
10. to designate the providers of electronic communications networks and services with significant market power;
11. to impose the providers of electronic communications networks and services with significant market power the obligations under Articles 9–14 of the Access Ordinance;
12. to manage the mechanisms for the financing of the obligations related to the assurance of the universal service, as specified by the special legislation;
13. to control the fulfilment of the obligations imposed on the universal service providers on grounds of the provisions of the special legislation;
14. the attributions of the regulatory authority on the basis of the provisions of the Law no. 676/2001 on the processing of personal data and the protection of privacy in the telecommunications sector;
15. the attributions of the regulatory authority on the basis of the provisions of the Postal Services Ordinance, except for the provisions of Articles 5, 6, 7 and 12;
16. to elaborate the necessary regulations with a view to the protection of environment in the field of electronic communications and postal services;
17. to elaborate and adopt technical norms, to initiate national standards in accordance with the national requirements and the international standards in the field, to propose for adoption the international standards as national standards and to adopt technical regulations making mandatory the application of the standards on the entire national territory, at regional or local level, in the field of electronic communications and postal services, as well as for the use of numbering resources;
18. to ensure the representation in international institutions and organisations from the electronic communications and postal services fields, supporting the national policy and strategy in these domains;
19. to collaborate with national and international institutions from the electronic communications and postal services fields, to develop and stimulate the relationships with such institutions; to cooperate with similar institutions from abroad, including by conclusion of collaboration and exchange of information agreements;
20. to apply the international instruments in the electronic communications and postal services fields;
21. to collaborate with the relevant Ministry in all the fields where the expertise of ANRC is deemed to be necessary or useful; 
22. to remit to the relevant Ministry proposals regarding the legislative framework for the stimulation of the development of electronic communications and postal services sectors;
23. to assess, plan and program in its own draft budget the financial resources necessary in order to realise the policies in its field of competence;
24. to co-ordinate the programs of financial assistance from the European Union in the field of electronic communications and postal services that concern the institutional capacity of ANRC;
25. to elaborate and publish reports, studies, analyses, and other such materials in the field of electronic communications and postal services, in particular for the evaluation of the need and opportunity for issuing new regulations, for the evaluation and control of the implementation of the policies and regulations, as well as of the management of programmes and projects, to organise seminars and round tables, actions aimed at promoting the image, at informing and raising the public awareness, being empowered to contract to this end consultancy, expertise, technical assistance and other such services, in accordance with the legal regulations into force;
26. to follow and control the application of the provisions comprised in the normative acts into force, in the international agreements in the field of electronic communications and postal services, taking measures for the prevention, elimination, and sanctioning of the failures to observe these provisions, in accordance with the competence acknowledged by them;
27. other attributions granted by special legal provisions.
(2) ANRC may conclude contracts with legal or natural persons, of public and private law, having as object the performance of specific activities, which are necessary for fulfilling the attributions established by paragraph (1). 

Article 47. – (1) The providers of electronic communications networks and services authorised under the conditions of this emergency ordinance shall pay ANRC an annual monitoring tariff, calculated as a percentage from the turnover of each provider.
(2) The percentage provided for at paragraph (1) is the same for all providers of electronic communications networks and services and is determined yearly, without exceeding 0,5%, as a ratio between: 
a) the expenses estimated for the current year, provided in the budget approved according to Article 42, amount from which the income expected from other sources shall be deduced, as provided in the approved budget, and
b) the cumulated turnover, corresponding to the previous year, of all providers of networks and services authorised under the conditions of Article 4.
(3) The monitoring tariff to be paid by each provider of electronic communications networks and services is set by decision of the president of ANRC, as result of the multiplication of: 
a) the percentage established according to the provisions of paragraph (2), by
b) the turnover of the respective provider for the previous year.
(4) The decision setting the monitoring tariff to be paid for a year is communicated in writing to each provider, until May 15th of the respective year, by the service of registered mail with acknowledgement of receipt.
(5) The monitoring tariff must be paid in two equal amounts, the first within at most 45 days from the date of the communication of the decision referred to in paragraph (4), and the second until December 31st of the respective year.
(6) For the purposes of this chapter, the turnover represents the addition of the incomes obtained from sales or by service provision by the economic agent during a financial year.
(7) In order to calculate the turnover, the providers of electronic communications networks and services are bound to submit to ANRC a copy of the annual financial reports, upon lodging them with the County Public Finance General Department and respectively with the Bucharest Public Finance General Department, within the period provided by the law.
(8) The persons authorised under Article 4 who provide exclusively for their own needs electronic communications networks and services that are using radio-electric frequencies shall be exempt of paying the annual monitoring tariff. 

Article 48. – (1) Upon the cessation of the activity in the field of electronic communications, regardless of the form of the cessation, any provider of networks or services authorised under Article 4, except for those mentioned in Article 47 paragraph (8), must pay a monitoring tariff, to be calculated as follows: 
a) in the case where the cessation of the activity occurs before the establishment of the annual monitoring tariff, as per Article 47, the monitoring tariff to be paid is the multiplication of the percentage established by ANRC as per Article 47 paragraph (2) for the previous year by the cumulated turnover of the previous year and of the current year, realised by that provider; 
b) the case where the cessation of the activity occurs after the establishment of the annual monitoring tariff, as per Article 47, in addition to this tariff, the provider owes a supplementary tariff, calculated as the multiplication of the percentage established by ANRC as per Article 47 paragraph (2) for the current year by the turnover of the provider for the current year.
(2) The monitoring tariff provided for in paragraph (1) must be paid at the date of the determination, according to the law, of the turnover. 



CHAPTER IX
Consultation, Transparency and Information


Article 49. – (1) ANRC has the obligation to create, maintain, develop and update its own web page, intended for public information with respect to:
a) the ANRC organisation, operation, objectives and attributions, as well as the attributions of each internal structure of ANRC;
b) the data necessary to ensure an efficient communication with the internal structures of ANRC;
c) the national and international legislation applicable in the electronic communications and postal services field; 
d) the decisions issued by the president of ANRC concerning the providers of electronic communications networks and services, as well as the postal services providers;
e) the available ways of appeal against the decisions of the president of ANRC;
f) the documents that must be published during the consultations initiated under the conditions of Article 50;
g) the ANRC income and expenditure budget;
h) the authorities with similar attributions in other states;
i) any other information useful for the public information, related to the ANRC activity.
(2) ANRC shall make all necessary efforts to ensure that the information published on the web page of the institution are also available in at least one international language.

Article 50. – (1) ANRC has the obligation to observe the consultation procedure settled by this Article at any time it intends to adopt measures that may have a significant impact on the relevant market, in applying the provisions of this emergency ordinance or of the special legislation in the electronic communications or postal services field. 
(2) ANRC has the obligation to publish the text subject to consultation on the web page of the institution, specifying as well: the date on which the document was published, the deadline for the submission of comments and the estimated date on which it intends to adopt the measure making the object of the consultation. All the concerned persons who have asked for their e-mail address to be entered on the special ANRC correspondence list shall be informed with respect to the initiation of the consultations at the latest on the day on which the document is published. 
(3) As soon as the text subject to consultation is published on the web page, ANRC shall grant a period of at least 30 days during which all the interested persons may submit their written comments. In case the measures must be adopted under emergency conditions, the period may be of less than 30 days, but at least 10 days. 
(4) The measure subject to consultation may not be adopted before the expiry of a 10 day-period from the deadline for the submission of comments. ANRC has the obligation to publish a synthetic material on the received comments, which shall specify its position with respect to these comments, at the latest on the day of publishing the decision adopting the measure on the web page.



CHAPTER X
Supervision and Control


Article 51. – (1) ANRC or IGCTI, as the case may be, shall have the right to require, by giving the reasons justifying their request, any provider of postal services or of electronic communications networks or services to provide all relevant information in order to check for observance of the obligations stipulated in the general authorisations, in the other decisions of the president of ANRC, in the licenses or in the special legislation for electronic communications and postal services.
(2) The quantity and the nature of the information must be proportional with the purpose for which they have been requested.
(3) The provider is bound to place make available the requested information within the term and in compliance with the conditions indicated by the authorities specified in paragraph (1).

Article 52. – ANRC cooperates with regulatory authorities in the field of electronic communications and postal services from abroad, including on the basis of collaboration and exchange of information agreements, for the purpose of performing the attributions that were granted to it by this emergency ordinance and by the special legislation in the field of electronic communications and postal services, as well as for the purpose of facilitating the performance by these authorities of the attributions that were granted to them by the national legislation applicable.

Article 53. – (1) The authority to control the observance of the provisions of this emergency ordinance and of the special legislation in the electronic communications and postal services fields, as well as the observance of the obligations imposed by the general authorisation and by licenses, except for the control of the fulfilment of the obligations concerning the use of radio-electric frequencies, lies with ANRC, which acts through the specialised control personnel specially empowered for this purpose.
(2) The control of the fulfilment of the obligations concerning the use of radio-electric frequencies lies with the IGCTI, acting through the specialised control personnel specially empowered for this purpose and according to the procedure settled through the legal provisions governing the activity of this institution, unless this emergency ordinance stipulates otherwise.

Article 54. – (1) In order to exercise its control tasks, the personnel of ANRC or of IGCTI specially empowered for this purpose has the right to request any information it deems necessary from the providers of electronic communications networks or services, as well as from the postal services providers, specifying the legal grounds and the purpose of the request, and may also set terms for the provision of such information, subject to the sanction provided by Article 56 paragraph (1) letter a) of this emergency ordinance or by Article 60 paragraph (1) letter a) of the Postal Services Ordinance.
(2) The personnel of ANRC and of IGCTI specially empowered for this purpose has the right to request statements or any other documents it deems necessary for the purposes of the control activity, to make copies on any registers, accounting-financial and commercial or any such similar documents; it may also carry out unexpected inspections over any installations, locations, assets or infrastructures used by the provider for the performance of its activities, the result of which shall be recorded in a official finding report, and may also receive information and justifications upon summoning or on site.
(3) The personnel of ANRC and of IGCTI specially empowered for this purpose has also the right to carry out searches, on the basis of the judicial authorisation granted by Presidential Ordinance by the president of the county tribunal or, as the case may be, of Bucharest county capital tribunal, in whose circumscription the places to be searched are situated, or by a judge delegated by this president. The request for Presidential Ordinance shall contain all the information that may justify the search and shall be judged without citation of the parties, in 3 days at most.
(4) The search and the operations therein shall be carried out under the authority and control of the judge that authorised them, who designates one or more judicial police officers to be present at these operations and to inform him thereon. If some operations have to be carried out outside the circumscription of the tribunal, the president who issued the Presidential Ordinance orders the establishment of a rogatory committee in order for the president of the tribunal in whose circumscription these operations are to be carried out to exercise the control thereon. The judge may inspect the places subject to control and may decide at any moment to suspend or cease the search.
(5) Under any circumstances, the search may not start earlier than 6.00 a.m. or after 8.00 p.m. and shall be carried out in the presence of the occupant of the place, or, in his/her absence, in the presence of a representative of that person, or of a family member or neighbour, having full capacity of exercise; only the personnel of ANRC and of IGCTI specially empowered for this purpose, the occupant of the place or his/her representative and the judicial police officers may take knowledge of pieces and documents before their seizure.
(6) The inventories and putting of seals shall be made in accordance with the provisions of the Criminal Procedure Code; the originals of the official finding report and of the inventory shall be sent to the judge who ordered the search, and the pieces and documents that are no longer useful for the establishment of the truth shall be returned to the occupant of the place.
(7) The Presidential Ordinance may be appealed in front of the Bucharest Court of Appeal. The appeal shall not suspend the execution.
(8) The president of ANRC or the general director of IGCTI, as the case may be, shall be immediately informed of the beginning of the search and of the operations carried out.



CHAPTER XI
Sanctions


Article 55. – (1) The followings deeds are contraventions:
a) provision of electronic communications network or services by a person which is not authorised as per Article 4 for that type of activity, or during the period when the right to provide electronic communications networks or services has been suspended or withdrawn;
b) failure to comply with the general authorisation conditions, as per Article 5;
c) use of radio-electric frequencies without obtaining the necessary license, as per Chapter III;
d) use of numbering resources without obtaining the necessary license, as per Chapter III;
e) failure to comply with the conditions set by the licenses for using radio-electric frequencies, granted as per Chapter III;
f) failure to comply with the conditions set by the licenses for using numbering resources, granted as per Chapter III;
g) failure to comply with the obligations imposed by ANRC as per Article 25 paragraph (1) or with the conditions set by it as per Article 25 paragraph (2);
h) failure to comply with the obligations as per Article 35;
i) failure to comply with the regulations and technical norms, adopted on the basis of this emergency ordinance.
(2) The contraventions under paragraph (1) shall be penalised by fine ranging from ROL 50,000,000 to 1,000,000,000, and in case of the companies registering a turnover above ROL 20,000,000,000, by way of derogation from the provisions of the Government Ordinance no. 2/2001 on the legal regime of contraventions, approved and modified by Law no. 180/2002, by fine amounting to maximum 5% of the turnover.
(3) The amount of the fines under paragraph (2) can be updated by a Government decision, depending on the evolution of the inflation index.

Article 56. – (1) ANRC or IGCTI, as the case may be, may oblige the providers of electronic communications networks or services to pay administrative fines amounting to maximum ROL 300,000,000 per day of delay, at the same time establishing the day from which they are calculated, in order to determine them to:
a) fully and accurately provide the information they were asked as per Article 51 or Article 54 paragraph (1), or any other information asked for by ANRC or IGCTI in the application of the provisions of this emergency ordinance;
b) obey the control mentioned under Articles 53–54;
c) comply with the measures taken by ANRC in application of this emergency ordinance.
(2) The maximum amount of the administrative fine mentioned under paragraph (1) can be updated by Government decision, depending on the inflation index evolution.
(3) By way of derogation from the provisions of Article 2 of the Emergency Ordinance no. 30/2002 for the modification of some annexes to the Law of the State budget on 2002 no. 743/2001, as well as of other normative acts, the amounts resulted from the cashing in of the fines under paragraph (1) shall be fully retained as own extra-budgetary incomes, on a permanent basis, at the disposal of ANRC or of IGCTI, as the case may be, and shall be used as per the legally approved income and expenditure budget.

Article 57. – (1) For the failure to pay within the due time the monitoring tariff established by ANRC as per Articles 47–48 or of the tariff for using the spectrum or of the tariff for using the numbering resources, established as per Article 19, penalties shall be applied per day of delay, calculated in accordance with the legal provisions applicable to the penalties due for the late payment of budgetary duties.
(2) If within 90 days from the date when the payment becomes outstanding, the provider fails to pay the tariff and the due penalties, ANRC or the relevant Ministry, as the case may be, may suspend or withdraw the right to provide electronic communications networks or services on basis of the general authorisation, or the licence for using radio-electric frequencies or numbering resources.

Article 58. – (1) Ascertainment of the contraventions under Article 55 paragraph (1) letters a), b), d), f), g), and h) shall be in charge of the control personnel mentioned under Article 53 paragraph (1).
(2) Ascertainment of the contraventions under Article 55 paragraph (1) letters c) and e) shall be in charge of the control personnel mentioned under Article 53 paragraph (2).
(3) Ascertainment of the contravention under Article 55 paragraph (1) letter i) shall be in charge of the control personnel mentioned under Article 53 paragraphs (1) or (2), as case may be.
(4) The penalties for the deeds under Article 55 paragraph (1) letters a), b), d), f), g), and h) shall be applied, through written resolution, by the president of ANRC.
(5) The penalties for the deeds under Article 55 paragraph (1) letters c) and e) shall be applied, through written resolution, by the general manager of IGCTI.
(6) The penalty for the deed under Article 55 paragraph (1) letter i) shall be applied, through written resolution, by the president of ANRC or by the general manager of IGCTI, as case may be.
(7) The administrative fines under Article 56 shall be applied by the president of ANRC or by the general manager of IGCTI, as case may be.
(8) The penalties under Article 57 shall be applied by the president of ANRC or by the head of the relevant Ministry.
(9) The document applying the penalties for the deeds under Article 56 and 57 is executory title, without any other formality.
(10) To the extent that this emergency ordinance does not provide otherwise, the contraventions under Article 55 shall be subject to the Government Ordinance no. 2/2001 on the legal regime of contraventions, approved, with amendments and completions, by Law no. 180/2002, except for the provisions of Article 28.

Article 59. – (1) In case a provider of electronic communications networks and services is found not to have observed an obligation provided for in the authorisations or in the licenses, in this emergency ordinance or in the relevant legislation in the electronic communications or postal services field, ANRC or IGCTI, as case may be, shall issue a warning to the respective provider, informing him their intention to apply the sanction provided for by the law and allowing him a term of at least 30 days to justify or remedy the committed breach.
(2) The 30-day term provided may be curtailed in the following situations:
a) with the consent of the provider;
b) in case the respective provider has previously failed to fulfil one or several of the obligations under paragraph (1);
c) when inobservance of the obligations referred to in paragraph (1) would seriously harm the public interest.
(3) In case the provider fails to remedy the breach within the term provided for at paragraphs (1) or (2), and the justification provided is not satisfactory, ANRC or IGCTI, as case may be, shall apply the relevant sanction and shall order all the necessary measures to ensure observation of the violated obligation. These measures must be proportional with the purpose followed and shall provide for a reasonable period within which the provider has to comply with it. 
(4) In case of serious and repeated breaches, if the respective provider failed to comply with the measures disposed in accordance with the provisions of paragraph (3): 
a) ANRC may suspend or withdraw the respective provider’s right to provide electronic communications networks or services based on the general authorisation, the right to provide postal services based on the general authorisation, or the license for provision of postal services or the license for using numbering resources, as case may be;
b) the relevant Ministry may suspend or withdraw the respective provider’s license for using radio-electric frequencies.
(5) Upon the proposal of the competent authorities, giving the reasons thereof and demonstrating that the breach of the obligations under paragraph (1) by a provider represents a serious and immediate threat to national security, public order, public health, or to the citizens’ rights and liberties, or is liable to generate serious economic or operational problems to other providers of electronic communications networks and services or to the users, ANRC or IGCTI, as case may be, may take urgent interim measures to prevent such risk, which may be afterwards confirmed. The respective provider must be granted the opportunity to present his point of view, in reasonable conditions, and to propose solutions for remedying the situation created.

Article 60. – Any persons using or discloses for any purpose other than the ones herein confidential documents or information received or informed on while carrying out the professional or profession-related tasks, shall be liable as per the criminal law, and potentially forced to remedy the prejudice caused.


CHAPTER XII
Transitory and Final Provisions


Article 61. – (1) Until the date of December 31st 2002, the S.N.Tc. Romtelecom S.A. shall benefit from:
a) the exclusive right to provide, against remuneration, publicly available fixed vocal telephony services, services of telegraphy and telex, at local, interurban and international levels;
b) the exclusive right to provide leased cable lines, in order to ensure the transmission capacity between the terminal points of the fixed network operated by S.N.Tc. Romtelecom S.A. on the grounds of the license granted according to the provisions of the Telecommunications Law no. 74/1996.
(2) Until the same date, the National Radiocommunications Company S.A. shall benefit from the exclusive right to provide leased radio lines with a capacity exceeding 2MBits/s.

Article 62. – (1) The licences and authorisations issued on grounds of the Telecommunications Law no. 74/1996 remain valid until the date of December 31st 2002, except for the situations where they provide a shorter term of validity.
(2) Until the expiry of the validity term determined as per paragraph (1), the holders of licences and authorisations are bound to transmit to ANRC the notification mentioned in Article 4, with a view to the continuation of the activity on basis of the general authorisation. Upon the date of notification, the licence or authorisation ceases its validity, except for the provisions referring to the rights of use for radio-electric frequencies and numbering resources.
(3) Until the expiry of the validity term determined as per paragraph (1), the relevant Ministry shall review all the licences whereby rights to use radio-electric frequencies were granted in order to ensure the observance of the provisions of Chapter III of this emergency ordinance.
(4) Until the expiry of the validity term determined as per paragraph (1), ANRC shall issue the licences for using numbering resources, as per Chapter III of this emergency ordinance, to the providers of networks and services who have benefited from the rights to use these resources on grounds of the provisions of the Telecommunications Law no. 74/1996, with the subsequent amendments. 

Article 63. – In order to finance its activity during the first 12 months of operation, ANRC shall benefit from a credit from IGCTI, amounting to EUR 4,000,000, for a 5-year term, with a grace period of 1 year from the date of the conclusion of the contract, with no interest, payable in ROL at the exchange rate of the National Bank of Romania from the date of the payment. The other conditions shall be established by contract, which shall be concluded within 15 days from the publication of this emergency ordinance in the Official Journal of Romania, Part I.

Article 64. – The county councils and the local councils of the Bucharest districts may ensure, against remuneration, the necessary space for the activity of the territorial offices of ANRC.

Article 65. – At the date of entry into force of this emergency ordinance, the Telecommunications Law no. 74/1996, published in the Official Journal of Romania, Part I, no. 156 of July 22nd, 1996, with the subsequent amendments, as well as any other contrary legal provisions shall be repealed.

Article 66. – At the date of entry into force of this emergency ordinance: 
a) Article 22 of the Government Ordinance no. 34/2002 on access to electronic communications networks and to the associated infrastructure, as well as their interconnection, published in the Official Journal of Romania, Part I, no. 88 of February 2nd, 2002, shall be amended to read as follows: “The regulatory authority in this ordinance is the National Regulatory Authority for Communications”;
b) Article 2 point 10 of the Law no. 676/2001 regarding the processing of personal data and the protection of privacy in the telecommunications sector, published in the Official Journal of Romania, Part I, no. 800 of December 14th, 2001, shall be amended to read as follows: “the regulatory authority – the National Regulatory Authority for Communications”;
c) Article 49 paragraph (2) of the Government Ordinance no. 31/2002 on postal services, published in the Official Journal of Romania, Part I, no. 87 of February 1st, 2002, shall be amended to read as follows: “For the purposes of applying this ordinance, the attributions of the regulatory authority are fulfilled by the National Regulatory Authority for Communications, except for the attributions provided in Articles 5, 6, 7 and 12, which are fulfilled by the Ministry of Communications and Information Technology”;
d) the Government Decision no. 20/2001 on the organisation and functioning of the Ministry of Communications and Information Technology, published in the Official Journal of Romania, Part I, no. 16 of January 10th, 2001, with the subsequent modifications, shall be modified accordingly.

Article 67. – (1) This emergency ordinance shall enter into force within 90 days from the date of its publication in the Official Journal of Romania, Part I, except for the provisions of Articles 37–40, Articles 42, 43, 63 and 64, which shall enter into force the date of the publication in the Official Journal of Romania, Part I. 
(2) Within the term specified in paragraph (1), the Government shall adopt a decision for the approval of the regulation for the organisation and operation of ANRC. 
(3) Until the expiry of the term mentioned in paragraph (1), ANRC shall hire the necessary personnel with a view to effectively and completely fulfil the attributions provided by this emergency ordinance.
(4) Until the expiry of the term mentioned in paragraph (1), the attributions granted to ANRC by this emergency ordinance shall continue to be performed by the competent authorities, according to the legal provisions in force.


Published in the Official Journal no. 457 of June 27, 2002.

© 2003 Internews