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Law N# 96-659 26 jully 1996
© Secretary of State for industry - France Art. 8.After chapter II of title I of book II of the Posts and Telecommunications Code there shall be inserted chapter III and IV, worded as follows: "Chapter III "Public service obligations "Art. L. 35. "The public telecommunications service shall be provided in accordance with the principles of equality, continuity and adaptability. It shall comprise: "a) - the universal telecommunications service defined, provided and financed under the conditions set out in articles L. 35-1 to L. 35-4; "b) - the mandatory telecommunications services defined and provided for under the conditions set out in article L. 35-5; "c) - telecommunications activities undertaken in the public interest, particularly in the interests of national defence and public security, public research and higher education, under the conditions set out in article L. 35-6. "Art. L. 35-1. "The universal telecommunications service means the provision to the public of a quality telephone service at an affordable price. It includes the conveyance of telephone calls to and from subscriber points, the provision of an information service and a telephone directory in both printed and electronic form, the provision throughout the territory of public pay phones installed on the public domain and the conveyance of emergency calls free of charge. "The universal service shall be provided under tariff and technical conditions which enable social categories with special needs, such as low income users and disabled users, to access the service. In the event of non-payment of the service these conditions shall include the maintenance of a limited service enabling debtors to receive calls and to make telephone calls to freephone and emergency services for a period of one year, for debtors seized under the civil proceedings reform Act n· 91-650 of 9 July 1991, and for debtors partaking in an out-of-court settlement or in the civil proceedings instituted under the law n· 89-1010 of 31 December 1989 on the prevention and settlement of difficulties relating to heavily-endebted individuals and families. "Any person who so requests may obtain a subscription to the telephone service from an operator responsible for the universal service under the conditions provided for by this code. A landlord or his representative may not oppose a telephone installation requested by a bona fide occupant or tenant. "Art. L. 35-2. "I - An operator may be given the responsibility of providing the universal service if it agrees to provide the service to the whole of the country and is capable of doing so. "France Télécom shall be the public operator responsible for the universal service. "The schedule of conditions incumbent on the operator responsible for providing the universal service shall be established after consultation with the public service commission for posts and telecommunications(12). These conditions shall govern the provision of the universal service, and in particular the tariff obligations required to ensure the access of all social categories to the universal service and to avoid discrimination based on the geographical location of subscribers. It shall also determine the conditions under which the universal service tariffs and quality of service are controlled. "II - The conveyance of emergency calls free of charge shall be compulsory for all public telephone service providers. "Art. L. 35-3. "I - The cost of universal service obligations shall be calculated on the basis of an appropriate cost accounting system put in place by operators and audited, at their expense, by an independent body designated by the telecommunications regulatory authority. "II - The costs attributable to universal service obligations shall be financed by public network operators and public telephone service providers under the following conditions: "1) The net costs of tariff averaging obligations, corresponding on the one hand to geographical price averaging obligations and on the other hand to the current unbalanced telephone tariff structure, shall be financed by a charge levied in addition to and in the same way as the interconnection charge referred to in article L. 34-8, by the operator responsible for the universal service. "This additional charge shall constitute the remuneration for the universal provision of the network and telephone service. It shall be calculated in proportion to the telephone traffic volume of the operator requesting interconnection. The telecommunications regulatory authority shall propose the sum payable for interconnection to be set by the telecommunications minister. "In order to encourage the development of mobile communications and the
reduction of tariffs for users, considering the additional traffic which they
occasion, mobile communications operators which have national coverage
obligations arising out of their schedule of conditions shall be exempt from the
share of the additional fee which relates to the disequilibrium of the current
telephone tariff structure. In return, the operators concerned shall agree to
contribute, as of 1 January 2001 to the coverage, by at least one mobile
telephone service, of main roads and other major trunk roads and scarcely
populated areas not covered by such a service at the date of the submission of
the first report mentioned in article L. 35- "2) - A universal telecommunications service fund shall be created. The accounts and finances of the fund shall be administered by the Caisse des dépôts et consignations (hereinafter referred to as the "deposit and consignment office") in a specifically designated account. The expenses incurred by the deposit and consignment office for such management shall be paid out of the fund. "The fund shall be used to finance the net costs of the following universal service obligations: the offer referred to in paragraph 2 of article L. 35-1 of special tariffs for certain subscriber categories in order to guarantee the accessibility of the service; the provision of public pay phones throughout the territory; the universal directory and the corresponding information service. "The share of the net costs payable by each operator shall be calculated in proportion to its traffic volume. "If an operator agrees to offer special tariffs to certain subscriber categories in order to guarantee them access to the telephone service under the conditions set out in its schedule of conditions, the net cost of this offering shall be deducted from its contribution. "The net contribution that operators pay or receive shall be decided by the telecommunications minister on the advice of the telecommunications regulatory authority. These contributions shall be collected by the deposit and consignment office according to the office's debt recovery procedure. "In the event of the default of payment of an operator, the telecommunications regulatory authority shall impose one of the penalties provided for in article L. 36-11. In the event of a repeated default the regulatory authority may revoke the authorisation. If the payment due is not recovered within a period of one year it shall be carried over to the fund for payment the following year. "3) - The public operator shall gradually rebalance telephone tariffs to correct the disequilibrium resulting from the current telephone tariff structure before 31 December 2000 through an overall reduction in tariffs for all user categories. When rebalancing has been completed, and by 31 December 2000 at the latest, the additional charge referred to in 1) above shall no longer be levied and the net cost of the geographic price averaging obligation shall be financed by the fund mentioned in 2) above. "The transition to this new financing regime shall be decided by the telecommunications minister, on the advice of the telecommunications regulatory authority, following the opinion of the public service commission for posts and telecommunications. "III - The methods used to calculate, offset and share the net costs of universal service obligations shall be published at least one year before the use thereof. "IV - A State Council decree, issued after consultation with the public service commission for posts and telecommunications shall stipulate the terms of application of this article. It shall also establish the methods for evaluating, offsetting and sharing the net costs of the universal telecommunications service, as well as the terms of management of the universal telecommunications service fund. "V - The telecommunications minister shall submit an annual report to Parliament on the application of the provisions of this article. "Art. L. 35-4. "A universal directory shall be made available to the public in both printed and electronic form, as well as a universal information service. Subject to the protection of personal data, these shall provide access to the names or trade names, telephone numbers and addresses of all public network subscribers. When so requested the profession of the subscriber may be mentioned. "An entity legally distinct from the companies providing telecommunications goods and services shall establish and update the list required for publication of the universal directory. Public network operators and public telephone service providers shall be required to provide the said entity with their lists of subscribers. "The entity mentioned in the paragraph above shall provide the consolidated list containing the information mentioned in the first paragraph of this article, to all those who request it, under identical conditions, subject to the rights of the persons concerned. The list shall be provided in return for a cost-based fee. This entity may not publish a subscriber directory. France Télécom shall publish a universal directory in printed and electronic form. "A State Council decree, issued after consultation with the public service commission for posts and telecommunications, shall set out the procedures concerning the application of this article. It shall lay down the selection criteria and the procedures of designation of the entity by the telecommunications minister; it shall specify the missions entrusted to this entity and the guarantees to be made to ensure the confidentiality of information, particularly with regard to the commercial interests of operators and the protection of privacy. "Art. L. 35-5. "Mandatory services shall include access, throughout the country, to the integrated services digital network, to leased lines, to packet switched data services, to enhanced voice telephony services and to the telex service. "The schedule of conditions incumbent on the operator responsible for the universal service shall determine which of the mandatory services it shall be required to provide and the conditions governing the provision thereof. "France Télécom shall provide all the mandatory services. "Art. L. 35-6. "The services required in the interests of national defence and public security and the fair payment due for these services shall be determined, at the request of the Government, by the schedule of conditions incumbent on the licensed operators, in application of articles L.33-1 and L. 34-1. "Higher education in the field of telecommunications shall be the responsibility of the State, under the supervision of the telecommunications minister. The State shall assume financial responsibility thereof from the beginning of 1997, under the conditions provided for in the Finance Acts. The resources necessary for high quality higher education shall be made available according to the conditions laid down in the Finance Acts. "Public telecommunications research and development shall be carried out under the control of the State, by the State or on behalf of the State within the framework of contracts which set forth the programmes and the means of implementing and financing them. "Art. L. 35-7. "At least once every four years from the date of commencement of this law, after public consultation and the opinion of the telecommunications regulatory authority and the public service commission for posts and telecommunications, a report on this chapter shall be submitted by the Government to Parliament. This report shall propose, where appropriate, the inclusion of new services in the scope of the universal service and the review of the list of mandatory services, in order to take into account developments in telecommunications technology and services. "The first report submitted in application of the paragraph above shall include a progress report on the coverage of the territory by mobile telephone networks. It shall propose the necessary amendments to the present chapter to guarantee, in the short term, the coverage of scarcely populated areas, main roads and other major trunk roads, by at least one land or satellite mobile radio telephone service. It shall also specify the means necessary to fulfill this objective to guarantee a fair competitive environment for operators, particularly the joint investment procedures or combination of different technologies to be made available in the scarcely populated areas which are not covered at the time of submission of the report. "Chapter IV "The regulatory framework for telecommunications "Art. L. 36. "There shall be established a telecommunications regulatory authority as of 1 January 1997. "Art. L. 36-1. "The telecommunications regulatory authority shall consist of five members appointed according to their legal, technical and territorial economic expertise for a term of six years. The chairman and two other members shall be appointed by decree. The two other members shall be appointed by the chairman of the Assemblée Nationale and by the chairman of the Sénat. "One third of the members of the authority appointed by decree shall be renewed every two years. "The members of the authority shall not be revocable. "The telecommunications regulatory authority may only deliberate if at least three of its members are present. "If a member is not able to complete his term of office, the member appointed to replace him shall hold office for the remainder of the term of the person he is replacing. "The chairman of the first telecommunications regulatory authority shall be appointed for a term of six years. The term of office of the two other members appointed by decree shall be determined by the drawing of lots. One of the members shall be appointed for a term of 4 years and the other for a term of 2 years. The term of office of the two members appointed by the chairmen of the parliamentary assemblies shall be set by the drawing of lots, at four years for one and six years for the other. "Members of the authority shall not be eligible for reappointment. However, this rule shall not apply to members who have held office for a term not exceeding two years, as a result of the measure provided for in the above two paragraphs. "Persons over sixty-five years old may not be appointed members of the authority. "Art. L. 36-2. "The office of member of the telecommunications authority shall be incompatible with any other professional activity, any national elected office and any direct or indirect interest in a company in the telecommunications, broadcasting and information technology sectors. The members of the telecommunications regulatory authority may not be members of the public service commission for posts and telecommunications. "The members of the authority shall not disclose any information brought to their attention during the exercise of their functions. "The chairman and the other members of the telecommunications regulatory authority shall receive respectively a salary equal to that pertaining to the two highest senior administration grades for civil servants. "Art. L. 36-3. "The telecommunications regulatory authority shall be provided with staff placed under the authority of its chairman. "The telecommunications regulatory authority may employ civil servants currently in post, under the same conditions as the telecommunications ministry. The telecommunications regulatory authority may recruit contractual staff. "The staff employed by the telecommunications regulatory authority shall not disclose any facts, acts and information brought to their knowledge during the performance of their functions. "Art. L. 36-4. "The resources of the telecommunications regulatory authority shall include payment for services provided, and the taxes and fees payable under the conditions set out by the Finance Act or by State Council decree. "During the drafting of the annual Finance Act, the regulatory authority shall submit to the telecommunications minister its proposals for the funds needed to carry out its functions, over and above the resources referred to in the first paragraph. "These funds shall be included in the general State budget. The provisions of the law of 10 August 1922 on the control of expenditure shall not be applicable to the management thereof. "The chairman of the telecommunications regulatory authority shall have the power to authorise expenditure. He shall submit the accounts of the telecommunications regulatory authority to the Revenue Court(13) for auditing. "Art. L. 36-5. "The telecommunications regulatory authority shall participate in the drafting of enactments and regulations governing the telecommunications sector and shall enforce the application thereof. "At the request of the telecommunications minister, the telecommunications regulatory authority shall participate in the preparation of the French position in international negotiations on telecommunications issues. At the request of the minister, it shall participate in representing France in the relevant international and European Union organisations. "Art. L. 36-6. "In accordance with the principles of this code and its enforcement orders, the telecommunications regulatory authority shall set out the regulations governing the following: "1) - the rights conferred and obligations arising out of the operation of the various categories of networks and services, in accordance with articles L. 33-1 and L. 34-1; "2) - the provisions applicable to the technical and financial conditions governing interconnection, in compliance with article L. 34-8; "3) - the technical rules applicable, where appropriate, to networks and terminal equipment to ensure interoperability, the portability of terminals and the efficient use of radio frequencies and telephone numbers; "4) - the conditions for establishing and operating the networks
referred to in article L. 33-2 and the conditions governing the operation of the
networks mentioned in article L. 33- "Art. L. 36-7. "The telecommunications regulatory authority shall: "1) - examine, on behalf of the telecommunications minister, the licence applications made pursuant to articles L. 33-1, L. 34-1 and L.34-3; issue the other licences and register the declarations required by chapter II; when licences are granted following a call for applications, the telecommunications regulatory authority shall publish the reasoned outcome of the selection procedure; "2) - issue or have issued the certificates of conformity provided for in article L. 34-9; "3) - enforce the fulfillment of obligations incumbent on operators resulting from the legislative and regulatory provisions applicable thereto and the licences which have been issued, and penalise any breach thereof under the conditions provided for in articles L. 36-10 and L. 36-11; "4) - propose to the telecommunications minister, according to the principles and methods set out in article L. 35-3, the sum payable as the contribution to the funding of universal service obligations and supervise the corresponding financing mechanisms. "5) - deliver a public opinion on universal service tariffs, multi-annual tariff objectives and tariffs for services for which there are no competitors on the market, prior to their approval, where appropriate, by the telecommunications minister and the minister for the economy. "6) - allocate to operators and users, in an objective, transparent and non-discriminatory manner, the frequency and numbering resources needed for their activity, ensure that they are used efficiently, establish a numbering plan and control the management thereof. "7) - following the opinion of the competition authority, published in the Fair Trading Journal(14) draw up an annual list of the operators and markets concerned by the provisions of article L.34-8 II, which are considered to have a significant market power in a particular market governed by these provisions in the telecommunications sector. An operator with a share of more than 25% of a particular telecommunications market shall be presumed to enjoy significant market power. The telecommunications regulatory authority shall also take into account the operator's turnover relative to the size of the market, its control of the means of access to end-users, its access to financial resources and its experience in providing products and services in the market. "Art. L. 36-8. "I - In the event of an interconnection refusal, a failure of commercial negotiation or a dispute over the conclusion or execution of an interconnection or telecommunications network access agreement, an aggrieved party may call on the telecommunications regulatory authority to resolve the dispute. "After having invited the parties to make their observations, the telecommunications regulatory authority shall issue a determination, within a period set by State Council decree. The decision shall be fully reasoned and shall specify the fair technical and financial conditions governing interconnection or special access. "In the event of a breach of the rules governing the telecommunications sector the telecommunications regulatory authority may take protective measures in particular to guarantee the continuity of network operations. "The telecommunications regulatory authority shall publish its decisions, subject to regulatory provisions on confidentiality. It shall notify the parties concerned. "II - The telecommunications regulatory authority may be called on to settle disputes concerning: "1) the conditions laid down in the last paragraph of article L. 34-4, governing the conformity with arrangements which prohibit or restrict the provision of the telecommunications services over the networks referred to in the first paragraph of the said article; "2) the conditions and possibilities of operators sharing existing facilities installed on the public domain, as provided for in article L. 47 and the facilities installed on private property as provided for in article L. 48; "The telecommunications regulatory authority shall resolve disputes according to the conditions and procedures provided for in I. "III - The decision taken by the telecommunications regulatory authority may be subject to an appeal or judicial review in application of I and II, within one month of notification thereof. "Appeal shall not be suspensive. However, execution of the decision may be deferred, if it is likely to lead to obviously excessive consequences or if new circumstances of exceptional gravity have arisen since notification thereof. "Protective measures taken by the telecommunications regulatory authority may be subject to an appeal or judicial review within 10 days of notification thereof. This appeal shall be judged within one month. "IV - An appeal lodged against the decisions or protective measures taken by the telecommunications regulatory authority, in application of this article, shall fall within the jurisdiction of the appeal court of Paris. "An appeal lodged against an order of the appeal court shall be made within one month following the notification thereof. "Art. L. 36-9. "A natural or artificial person, professional organisation or the
telecommunications minister may call on the telecommunications regulatory
authority to undertake conciliatory measures in order to settle a dispute
between operators not concerned by article L. 36- "The telecommunications regulatory authority shall inform the competition authority that the conciliation procedure has been initiated. If the same matter is referred to the competition authority, the latter may decide to suspend judgment. "If conciliation fails, the chairman of the telecommunications regulatory authority shall refer the matter to the competition authority, if the matter falls within its jurisdiction. "Art. L. 36-10. "The chairman of the telecommunications regulatory authority shall refer any abuse of a dominant position or any anti-competitive practice in the telecommunications sector, which may be brought to his notice, to the competition authority. He may also seek advice from the competition authority on all other matters within its jurisdiction. The competition authority shall bring to the notice of the telecommunications regulatory authority any matters referred to it which lie within its jurisdiction and shall seek the telecommunications regulatory authority's advice on practices which have been referred to it in the telecommunications sector. "The chairman of the telecommunications regulatory authority shall inform the public prosecutor of any matters which may constitute a criminal offence. "Art. L. 36-11. "The telecommunications regulatory authority may impose penalties, at the request of the telecommunications minister, a professional organisation or a natural or artificial person, or as a matter of course if a default is observed on the part of network operators or telecommunications service providers in relation to legislative and regulatory provisions pertaining to their activity, or to decisions taken to guarantee the implementation thereof. The power to impose penalties shall be administered subject to the following conditions: "1) - when a network operator or a service provider violates a legislative or regulatory provision pertaining to its activity, or in respect of which it exercises its activity, the telecommunications regulatory authority shall summon it to remedy the matter within a stipulated period of time. It may make such a summons public. "2) - when a network operator or a service provider does not comply with a decision taken in application of article L. 36-8 or the summons provided for in point 1) within the period of time stipulated, the telecommunications regulatory authority may impose one of the following penalties: "a) depending on the gravity of the default, either total or partial suspension of the licence for one month maximum, reduction in the duration of the licence up to one year, or withdrawal of the licence; "For licences subject to the provisions of III of article L. 33-1 the licence may be withdrawn without prior summons, in the event of a substantial change in the composition of the share capital. "b) or, if the default does not constitute a criminal offence, a fine may be levied in proportion to the gravity of the default and to the advantages which it affords. The fine shall not exceed 3% of the net turnover of the preceding financial year, increased to 5% in the case of a repeated default of the same obligation. In the absence of sufficient activity to determine this threshold, the penalty may not exceed one million French francs, increased to two million French francs in the case of a repeated breach of the same obligation. "The penalties shall be imposed after the operator has received notification of the grounds for complaint, has been given the possibility of consulting the case file and has presented written and verbal comments. "Fines shall be recovered as State debts, independently from taxes and public property. "3) - Matters dating back more than three years may not be referred to the telecommunications regulatory authority if no action has been taken in view of an inquiry, verification or penalty. "4) - Decisions shall be fully reasoned, notified to the interested party and published in the French Official Journal. They may be the subject of an appeal to the State Council or of an application for stay of execution. Where fines are concerned, applications for deferment of execution shall be suspensive. "Art. L. 36-12. "The chairman of the telecommunications regulatory authority shall have the jurisdiction to institute legal proceedings pertaining to the accomplishment of his functions. "Art. L. 36-13. "The telecommunications regulatory authority shall gather the information and carry out the inquiries necessary for the accomplishment of its missions, within the limits and under the conditions set out in article L. 32-4. "Art. L. 36-14. "The telecommunications regulatory authority shall draw up and publish an annual report on the performance of its functions and on the application of the legislative and regulatory provisions for telecommunications before 30 June. This report shall be submitted to the Government and to Parliament. It shall also be submitted to the public service commission for posts and telecommunications. In the report, the telecommunications regulatory authority may suggest legislative or regulatory amendments which appear to be called for due to evolutions in the telecommunications sector and the development of competition. "The authority, and where appropriate the public service commission for posts and telecommunications may be heard by the parlementary standing committees for the telecommunications sector. The latter may consult the authority on any issue relating to the regulation of telecommunications.
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. They shall also agree to furnish
the information and to formulate the proposals necessary for the elaboration of
this report. On the advice of the telecommunications regulatory authority, the
telecommunications minister shall exclude from this exemption the operators
which have not agreed to these commitments before 1 October 1997.
. Decisions taken in accordance with this
article shall be published in the French Official Journal, after approval by an
order of the telecommunications minister.
. Conciliation shall be
favoured to all other solution.